Report No. 69

V. Points for Consideration-Oral Statements

81.15. Reverting to section 145, we may state that while the principle under lying the section does not require modification, certain questions of detail arise, namely-

(a) (i) Is the section applicable to oral statements? (ii) In particular, is the section applicable to tape-records?

(b) What is the position regarding.documents which are lost?

81.16. As to point (a) (i).- oral statements.- it is to be noted that the section relates only to previous statements made in, or reduced into, writing. The section does not cover the entire ground covered by section 155(3). If the previous statement was oral and not reduced to writing, it can, under section 155(3), be proved to impeach the witness's credit, it such former statement be inconsistent with any part of the witness's evidence which is liable to be contradicted.1 This being a permissible course, some guidance should be provided in the Act as to whether the witness should be confronted with the statement.

1. Section 55, Clause (3).

81.17. Unfortunately, the Act makes no express provision to the effect that the witness's attention must first be drawn to the previous oral statement and the witness asked whether he made such a statement, before his credit can be impeached by independent evidence. As Field has pointed out,1 there can be little doubt that here also the circumstances of such previous statement that are sufficient to designate the particular occasion ought to be mentioned to the witness and lie ought to be asked whether or not he made such a statement. In the English case of Carpenter v. Wail, 3 P&D 457: 113 ER 619 cited in Woodroffe and also in AIR 1952 Ori 277, para. 28. Patterson J. observed-

"I like the broad rule that when you mean to give evidence of a witness's declaration, for any purpose, you shall ask him whether he ever used such expression."

1. Field Evidence, 6th Edn., 458.

81.18. Tape records.-

Coming to point (a) (ii.- tape records.- we may note that the proposition that tape-records are admissible, is not now disputed1 though certain safeguards may have to be observed to ensure that there has been no tampering. That they can be used for contradiction is also not disputed.2 But the procedure to be followed when they are used for contradiction is not laid down in the Act and ought to be laid down. Section 145, taken literally, does not cover them. In Rup Chand,3 it was held that the record of a conversation appearing on a tape-recorder cannot be regarded as a statement "in writing or reduced into writing" within the meaning of section 145. The record which appears on a tape-recorder cannot fall within the ambit of the definition of "writing" as given in section 3(65), General Clauses Act, 1897.

It was held in that case that the expression "writing", appearing in section 145, refers to the tangible object that appeals to the sense of sight and that which is susceptible of being reproduced by printing, lithography, photography, etc. It is not wide enough to include a statement appearing on a tape which can be reproduced through the mechanism of a tape-recorder. With reference to section 155(3), it was held that a defendant who is endeavouring to shake the credit of a witness by proof of former inconsistent statements, can depose that while he was engaged in conversation with the witness, a tape-recorder was in operation, or can produce the said tape-recorder in support of the assertion that a certain statement was made in his presence.

1. Pratap Singh v. State, AIR 1964 SC 72.

2. See section 155(3).

3. Rup Chand v. Mahabir Parshad, AIR 1956 Punj 173, para. 8.

81.19. Need for provision as to oral statements.-

It would appear that the position in this regard would be clearer if the correct procedure as to oral statements is laid down.

81.20. Present position.-

It may be noted that contradiction by an oral statement is a permissible means of impeaching the credit of a witness. Section 155(3) and illustrations (a) and (b) thereto, make this clear. There can be no distinction in principle, between an oral and written statement. Of course, the contradiction must be in regard to a matter relevant to the issue,-that being the implication of the words 'liable to be contradicted' in section 155(3). Acting on this reasoning the Orissa High Court would apply the principle of section 145 also to oral statements.1

But the Nagpur2 and Rajasthan4 High Courts have taken a different view on the subject, holding that since section 145 covers only written statements, the procedure laid down therein need not be followed. The conflict of decisions is obvious. But even if there were no conflict, it is desirable that the legislative provision should be self-contained, on such an important matter.

1. State v. Minaketan, AIR 1952 Ori 267 (277, 26) (Narasimhan, J.).

2. Muktavandas v. R., AIR 1939 Nag 13.

3. Ram Rattan v. State, AIR 1956 Raj 196 (197) (Manawat and Sharma, JJ.).

81.21. Need for amendment.-

In view of the fact that the mode of proof1 for the purpose of contradiction is already dealt with by section 145, it would seem appropriate that the procedure to be followed in regard to oral statements should also be dealt with in that section. The rule in section 145 is one of substance, and not of form.2 Justice requires that the witness must be treated fairly and be afforded a reasonable opportunity of explaining the contradiction, whether the statement be written or oral.

1. Gopi Chand v. R., AIR 1930 Lah 491.

2. Bhagwan v. S., AIR 1952 SC 214.

81.22. Ceylon amendment as to oral statement.-

It may be noted that, in Sri Lanka, the corresponding section has been numbered as sub-section (1) and sub-section (2) has been added as follows1:-

"(2) If a witness, upon cross-examination as to a previous oral statement made by him relevant to matters in question in the suit or proceeding in which he is cross-examined and inconsistent with his present testimony, does not distinctly admit that he made such statement, proof may be given that he did in fact make it: but before such proof can be given the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness, and he must be asked whether or not he made such a statement."

1. Section 145, Ceylon Evidence Ordinance, cited in Sarkar.

81.23. Position in New South Wales.-

It would also be of interest to note that, in New South Wales, there is a specific provision in this regard. Section 54 of the Evidence Act, 1898-1954 (New South Wales), is in the following terms:

"If a witness upon cross-examination as to a former statement made by him relative to the subject matter of the cause or proceeding, and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it. But before such proof can be given, the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness and he must be asked whether or not he has made such statement".

Section 55 of the New South Wales Act is in the following terms:

"(1) A witness may be cross examined as to:

(a) a previous statement made or supposed to have been made by him in writing or reduced into writing; or

(b) Evidence given or supposed to have been given by him before any justice, without such writing or the deposition of such witness being shown to him. But if it is intended to contradict him by such writing or deposition, his attention must, before such contradictory proof can be given, be called to those parts of the writing or deposition which are to be used for the purpose of so contradicting him."

81.24. We have already referred to the English provision1 which is wide enough to provide for oral statements. We are of the view that section 145 should be amended to deal with the matter.

1. Section 4, Criminal Evidence Act, 1865, (supra.).

VI. Secondary Evidence

81.25. Loss of document.-

Then.- to come to point (b).- there is another matter requiring attention with reference to section 145. The Act is silent with reference to the case where the document sought to be used for contradiction has been lost or destroyed, and the question may arise whether in these or in any other cases a copy can be used (instead of the originals) for contradiction. It has been stated2 (with reference to the position in England) that in such a case the witness might be cross-examined as to the contents of the paper, notwithstanding its non-production; and that, if it were material to the issue, he might be afterwards contradicted by secondary evidence. In such a case, the cross-examining party may interpose evidence out of his turn to prove the events, such as loss, etc., relating to the document and to furnish secondary evidence thereof.

In India, such a case may perhaps fall within section 155(3), so far as the use of secondary evidence is concerned. But the procedure,-i.e. the applicability of section 145-is doubtful. We are of the view that a suitable provision regulating the contradiction of the witness by secondary evidence should be inserted. A case for secondary evidence must, of course, be made out before it can be used for contradiction.

1. Para. 81.15, supra.

2. Taylor Evidence, section 1447, cited by Woodroffe.

VII. Recommendation

81.26. The points discussed above show the need for amending the section so as to cover-

(a) oral statements, including oral statements that have been tape recorded;1

(b) contradiction by secondary evidence.2

1. Para. 81.24, supra.

2. Para. 81.25, supra.

81.27. Recommendation.-

In the light of the above discussion, we recommend that section 145 should be amended by adding the following sub-sections.1

"(2) Where a witness is sought to be contradicted by his previous statement in writing by a party entitled to produce secondary evidence of the writing in the circumstances of the case, his attention must, before such secondary evidence can be given for the purpose of contradicting him, be called to so much of it as is to be used for the purpose of contradicting him.

(3) If a witness, upon cross-examination as to a previous oral statement (including a statement recorded mechanically) made by him relevant to matters in question in the suit or proceeding in which he is cross-examined and inconsistent with his present evidence, denies that he made the statement or2 does not distinctly admit that he made such statements, proof may be given that he did in fact make it, but before such proof can be given the circumstances of the supposed statement sufficient to designate the particular occasion must he mentioned to the witness, and he must be asked whether or not he made such statement."

1. Section 145 to be renumbered as sub-section (1).

2. The specific intention of denial is considered desirable.

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