Cross-examination as to the Previous Statement in Writing

Question: Write a note on Cross-examination as to the previous statement in writing.

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Answer

Section 145 deals with Cross-examination as to previous statements in writing.—A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

A witness may be cross-examined as to his previous written statements which are relevant to the issue without showing him such writing or proving it. But if the intention is to contradict the oral statements of the witness with that writing then his attention must be drawn to that part of the writing before the writing will be permitted to be proved.

A witness cannot be recalled for contradicting him on the basis of a subsequent inconsistent testimony before any other court or forum. A witness can be confronted only with previous statements made by him.

In the case of Karan Singh v. State of M.P., (2003) 12 S.C.C. 587, the previous statement of the witness was not put to turn, nor he was given an opportunity to explain it. The statement was not allowed to be used to contradict the present statement of the witness.

The section provides for one of the methods in which the credit of a witness may be impeached. The object of the provision is either to test the memory of the witness or to contradict him by previous statements in writing. While this section permits only written statements to be brought into the picture for contradicting the witness, Section 153 would permit even oral statement to be used for the purpose [Section 153, exception 2].

The statements in the first information report (FIR) made by the witness can be used. Evidence recorded in criminal proceedings can be used. Where the credit of a witness is sought to be impeached by exposing the contradiction between his present testimony with his previous statements, he must have an opportunity of explaining the contradiction.

That is not only a rule of professional practice in the conduct of a case, it is also essential to fair play and fair dealing with a witness.

A case before the Supreme Court in Hazari Lai v. State (Delhi Admn.) [A.I.R. 1980 S.C. 873] involved the question of whether the information given by a person in the course of an investigation could be used as evidence? This is what the court said:

“Section 162 of the Code of Criminal Procedure imposes a bar on the use of any statement made by any person to a police officer in the course of the investigation at any inquiry or trial, except for the purpose of contradicting the witness in the manner provided by Section 145 of the Evidence Act.

Where any part of such statement is so used any other part may also be used in the re-examination of the witness for the limited purpose of explaining any matter referred to in the cross-examination. The only other exception to this embargo relates to the statements falling within the provisions of Section 32 (1) or permitted to be proved under Section 27.

Section 145 provides that a witness may be cross-examined as to previous statements made by him in writing and relevant to matters in question, without such statement being shown to him or being proved, but that if it is intended to contradict him by the writing, the attention must before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

The courts below were clearly wrong in using substantive evidence statements made by the witness in the course of an investigation.

The definition of the word “proved” in Section 3 does not enable the court to take into consideration matters, including statements whose use is statutorily barred.”

The statements of a prosecutrix to the doctor who examined her, which were not put to her before questioning her on the point were not allowed by the Supreme Court to be used to contradict her. The Supreme Court has held that this section is not attracted when a statement made by one witness is contradicted by another witness. [Mohan Lai v. State of Maharashtra, A.I.R. 1982 S.C. 839]

A witness can only be contradicted in terms of Section 145 by his own previous statement and not with the statement of any other witness. The section applies when the same person makes two contradictory statements.

The requirements of this section are not attracted in the case of admissions. The Supreme Court has stated in Bharat Singh v. Bhagirathi, A.I.R. 1966 S.C. 405 that admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness-box or not and whether that party when appearing as a witness was confronted with those statements in case he made a statement contrary to those admissions.

Acting upon this principle the Calcutta High Court in Tapan Das v. Sosti Das, A.I.R. 1986 did not allow a party to the case appearing as a witness to demand that he should be shown his earlier statements in the matter of family partition which amounted to an admission.

As the court held in Nisar Ali v. State of U.P., A.I.R. 1957 S.C. 366, first information report (FIR) and the statements contained in it cannot be used as evidence against the person accused (co-accused) with the maker of the report. It cannot be used against the maker also if it is inculpatory in nature.

It can be used for corroborating or contradicting the maker only if he appears as a witness. It can be used as an admission for civil litigation purposes.

In Rajendra Singh v. State of Bihar 2000 Cri. L.J. 2199 (S.C.), the magistrate found that the former statement of the witness neither carried any signature nor seal of office, the court held that it could not be said that the statement was that of the witness.

The witness was also not confronted with that part of the statement with which he was sought to be contradicted. The requirements of the section were not complied with.

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Important Mains Questions Series for Judiciary, APO & University Exams

1. Law of Evidence Mains Questions Series Part-I
2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
6. Law of Evidence Mains Questions Series Part-VI
7. Law of Evidence Mains Questions Series Part-VII
8. Law of Evidence Mains Questions Series Part-VIII
9. Law of Evidence Mains Questions Series Part-IX
10. Law of Evidence Mains Questions Series Part-X