Report No. 69

Chapter 80

Matters in writing used in Examination

Section 144

80.1. Introductory.-

Sometimes, when a witness under oral examination is giving evidence, questions arise which involve the existence or use of written statements. The witness may be giving evidence of a fact as to which, it is believed, there also exists a written evidence in the form of a written contract, grant or disposition of property or other writing, though the witness does not make a reference to the writing at all.1 In such a case, it is necessary to ensure that the factual position is before the Court. Or, what the witness states in court is found to differ from what he stated on a previous occasion in writing; in such a case, the adverse party may naturally like to cross-examine the witness with reference to the writing containing the contradiction.2

Then, there may be situations where the question is not of conflict with the previous statement of the witness, but of confirming his testimony by a previous statement made by him in writing; this time, the party calling the witness may be interested.3 Apart from these situations, in which the party calling, or the adverse party, is interested, the witness may, in order that he may be able to state all facts in detail, like to refresh his memory by a previous writing that was seen or approved by him. All these situations involve the question of inter-relationship between oral evidence of the witness and previous written statements to which the witness is a party or of which he is aware, and it becomes necessary for the law to lay down rules as to the procedure to be followed in the various situations.

On some of these matters, rules are also found in earlier sections4 as to the use of the writing. But the law must also see to it that the rules contained in the earlier sections are observed at the stage of the examination of each witness. On some of the situations, the provisions of the Act discussed so far, are silent. The Act, therefore, proceeds to lay down, in the sections commencing with section 144, rules dealing with these situations. The situations themselves vary but the object of the relevant provisions, stated very broadly, is either to secure the best evidence or to ensure that what comes on the record is the truth and the whole truth, and that the best possible use is made of a previous record which, being of more permanent and reliable character, should not be disregarded.

1. Section 144.

2. Section 145.

3. Section 157.

4. Sections 65, 91 and 92.

80.2. Section 144.-

Of the various situations mentioned above, the first situation-evidence as to matters in writing is dealt with in section 144. The operative provisions in that section enacts that any witness may be asked, whilst under examination, whether a contract grant or other disposition of property as to which he is giving evidence was not contained in a document; and if he says that it was (so contained) or if he is about to make a statement as to the contents of any document which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced or until facts have been proved to entitle the party to call the witness to give secondary evidence of it. In stating the substance of the section, we have adhered to the language of the section as it now stands; but the section is not very happily expressed, as we shall show later.

80.3. According to Cunningham,1 section 144 merely points out the manner in which the provisions of sections 91, 92 and 65 as to the exclusion of oral or documentary evidence may be enforced by the parties to the suit. If the adverse party does not object, it is still the duty of the judge to prevent such oral evidence-a duty which can be deduced from the general provision in the Act that the judge must exclude inadmissible evidence (section 165, second proviso).

1. Cunningham Evidence, Note to section 144, cited in Woodroffe.

80.4. If the case is tried in a court in which there are no properly qualified practitioners, or if none be employed in the case, or if the adverse party, himself ignorant of the law and of his privilege, does not object-should the court disallow the evidence until the document be produced or until facts have been proved which entitle the party concerned to give secondary evidence? This query often arises and, as stated above, the court should certainly do so,1 since the Act declares it to be the duty of the judge, to prevent the production of inadmissible evidence, whether it is or is not objected to by the parties. Several provisions of the Evidence Act lead to this result-e.g. the last portion of the second proviso to section 165, to which we have already referred, section 59, the word "must" in section 64, section 65 and the word "shall" in section 66. On principle also, where evidence has been received in direct contravention of an imperative provision of the law, acquiescence, waiver or estoppel may not apply.2

1. See Woodroffe.

2. Shiv Chandra Singh v. Gour Chandra Pal, 27 CWN 134.

80.5. Explanation and illustration.-

So much as regards the main paragraph of the section. The Explanation to the section makes it clear that a witness may give oral evidence of statements made by other persons about the contents of documents, if such statements are in themselves relevant facts. It is obvious that if such a case what the witness is deposing is not "the contents of any documents", but the statements made by other persons about the contents of documents.

These statements are admissible, not as proof of the contents of the documents, but as proof of some other relevant fact-motive in the case put in the illustration to the section. Under the illustration the question is whether A assaulted B, C deposes that he heard A say to.-"B wrote a letter accusing me of theft, and I will be revenged on him". This statement is relevant, as showing A's motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.

The witness, in the case put in the illustration, is not deposing to any terms of a document, and is not giving extrinsic evidence affecting the contents of a document. The terms of the document are not material. The really material fact is the mental element-A's motive-which is discernible from his statement. The statement of A is received independently in evidence as original evidence, and not because it tends to prove or disprove the terms of any document. The illustration really deals with a declaration about a mental element1 made contemporaneously. Nor can objection be made to evidence of that statement on the score of hearsay. The distinction between hearsay and original evidence is well-known. It is nowhere better stated than in the case of Subramaniam v. Public Prosecutor, (1956) 1 WLR 965 (969) (PC), where it was observed that-

"Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made."

The illustration satisfied this test. These points do not necessitate any amendment of the section.

1. Section 14.

80.6. Defective drafting.-

There is, however, one matter in respect of which the section is in need of improvement. The scope of the section is really two-fold; first, it is intended to apply to a situation where a contract, grant or other disposition of property as to which a witness is giving evidence is contained in a document. The second situation is where a witness is about to make any statement as to the contents of "any document" (which in the opinion of the court, ought to be produced). In both these situations, the adverse party has a right to object to such evidence being given until the document is produced or a case is made out for secondary evidence. The first situation is confined to contracts, grants and dispositions of property etc., while the second situation is not so confined.

80.7. Recommendation.-

In regard to the first situation, the word "evidence" is used, and, for the second situation, the words "the statement" are used, in the earlier half of the section. But, in the latter half, only the expression "such evidence" is used. This is not a satisfactory way of drafting. Besides, it would be conducive to clarity if the section is recast to deal with the two distinct situations separately. The following redraft of the section is recommended so far as the operative part is concerned-

"144. (1) Any witness may be asked, while under examination, whether any contract, grant or other disposition of property as to which he is giving evidence was not contained in a document; and if he says that it was, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it; and if in the opinion of the court, the document ought to be produced,1 the objection shall be upheld.

(2) If a witness, whilst under examination, is about to make any statement as to the contents of any document, the adverse party may object to such statement being made until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it, and, if in the opinion of the court, the document ought to be produced, the objection shall be upheld."

(Explanation and illustration as at present).

1. The underlined words do not occur in the present section in connection with contracts etc. But they seem to be worth adding. See, for examples the provisos to section 91. Also consider the case where the document is already admitted by adverse party.

80.8. We recommend that the operative part of the section should be recast as above, while retaining the present Explanation and illustration.

Back

Index

Next