Report No. 69

Chapter 85

Contradiction as to Matters Affecting Credit

Section 153

I. Introductory

85.1. Introductory.-

In order that the inquiry may not travel too far into collateral matters, certain restrictions have been considered desirable. A witness can be cross-examined as to credit; such an examination does introduce collateral materials. What is to happen if the witness denies the damaging imputation introduced in cross-examination? Can an inquiry be held in detail into that imputation? Obviously, this may prolong the trial. Section 153, therefore, prohibits the contradiction of a witness as to matters affecting his credit, except in certain specified cases. We shall come to the exceptions later. The general rule underlying the section is that a witness cannot be contradicted on collateral matters, but only on matters relevant to the questions at issue.

85.2. The general principle underlying the section can be traced to the leading English case of A.G. v. Hitchcock, (1847) 1 Exch 91 (99), which lays down that a witness cannot be contradicted on collateral matters. The defendant in that case was charged with using a cistern for making malt without complying with various statutory requirements. One Spooner gave evidence of the use of the cistern and was asked in cross-examination on behalf of the defendant whether he had not told the cook that the excise officers had offered him twenty pounds to say that the cistern had been used.

Spooner denied that he had ever made such a statement, and it was held that the defendant could not ask cook to narrate the alleged conversation. If Cook had been able to prove that Spooner had actually received a bribe from the excise officers, his testimony would have been admissible because it would have tended to show bias under an exception to the rule prohibiting contradictory evidence on collateral issues Pollock C.B. observed in that case-

"The test whether a matter is collateral or not is that: if the answer of a witness is on a matter which you would be allowed on your own part to prove in evidence-if it have such a connection with the issues, that you would be allowed to give it in evidence-then it is a matter on which you may contradict him."

85.3. Effect.-

The effect of the judgment in Hitchcock's case is aptly stated in the following passage from an American author:1

"Independent evidence may be given to prove a self-contradictory statement by a primary witness only if-(a) the statement contradicts testimony by the primary witness about a matter directly in issue in the litigation, or (b) the statement contradicts testimony by the primary witness as to those matters which affect the motives, temper and character of the witness with reference to his feelings toward one party or the other."2

1. Maguire Evidence, Common sense and Common Law, p. 67, cited in Gross Evidence, (1974), p. 232.

2. The sub-quotation is from the Judgment of Pollock C.B. in A.G. v. Hitchcock, (1847) 1 Exch 91.

85.4. Rationale.-

The rule against contradiction on collateral matters is intended to present side issues from arising1 The facts are collateral; therefore the answers are final. The court is free not to believe the answers given by the witness. But in order to persuade it not to believe them, further evidence is not permissible. If the courts are to be spared the task of considering, on "most imperfect material",2 issues which have no bearing upon the matters really in contest between the parties, some limitations ought to be recognised. This is what section 153 seeks to achieve.

1. Heydon Cases and Materials on Evidence, (1972), p. 434.

2. Bhogilal, AIR 1928 PC 54 (63).

85.5. The reason of the rule which restricts the right to contradict is, that it is an object of great importance to confine the attention of the court as much as possible to the specific issues. Without some such rule, many collateral questions of fact might be raised in the course of a long trial; and the specific questions to be determined might be lost sight of. At the same time, it is desirable that any evidence should be admitted which may assist in determining the respective value of conflicting testimony.1

1. 6 BHCR 96.

II. Scope and Application

85.6. Australian case illustrative of the principle.-

An Australian case may be cited to illustrate the application of the principle enacted in the section. In Piddington v. Bennett, (1940) 63 CLR 533, a person claiming to be eye-witness of an accident explained his presence at the spot by stating that he was carrying a message from a bank to I. The opposite party attempted to produce evidence to prove that J had not operated upon his account with the bank on that day-the suggestion being that the witness was lying when he said that he was carrying a message to J. The evidence was ruled out as in admissible by the High Court of Australia. It laid down that if a question in cross-examination affects only the credit of the witness and is not relevant to the matters actually in issue, the answers of the witness cannot be contradicted by other evidence, except in certain exceptional cases.

85.7. Test for collateral facts.-

We have already referred to the usual test for what is not a collateral fact, stated by Pollock C.13. in A.G. v. Hitchcock, (1847) 1 Ex 91 (99). If the answer of a witness is a matter which you would be allowed on your own part to prove in evidence, then it is a matter on which you may contradict him. Thus, collateral facts are those which are relevant to credibility rather than to the main issue.

III. Exceptions

85.8. Exceptions-previous conviction.-

To the rule prohibiting the contradiction of the evidence of a witness as to matters affecting credit, there are certain exception.- apart from the rule permitting contradiction by the previous inconsistent statement of the witness himself The first important exception is that relating to previous conviction. It may be noted that one of the important modes of challenging the credibility of a witness is by giving evidence of previous conviction of the witness as an offence. Where a witness, having been asked a question about his previous conviction in order to impeach his credit, denies having been so convicted, the first exception to section 153 permits evidence contradicting the denial made by the witness.

Technically, of course, a previous conviction of a witness (unless relevant under some specific provision) is a collateral matter and a discussion thereof might lead the court into a consideration of matters too remote. At the same time, the law recognises that, in practice, the proof of a previous conviction does not take much time and the materials available for such proof are precise enough so as to avoid causing prolonged controversy. Under the Code of Criminal Procedure so far, as is material, a previous conviction may, in addition to any other mode provided by any law for the time being in force,1 be proved-

(a) by an extract certified under the hand of the officer having the custody of the records of the court in which such conviction or acquittal was held, to be a copy of the sentence or order, or

(b) in case of a conviction, either by a certificate signed by the officer in charge of the jail in which the punishment or any part thereof was undergone, or by production of the warrant of commitment under which the punishment was suffered, together with, in each of such cases, evidence as to the identity of the accused person with the person so convicted or acquitted.

1. Section 298, Code of Criminal Procedure, 1973.

85.9. A previous conviction need not be of a kind directly reflecting on the veracity of the witness. At the same time, regard must also be had to the words of section 148(2), under which a certain amount of connection between the previous conviction and credibility of the witness is contemplated. As has been pointed out by Cross,1 little attention would normally be paid to the testimony of a confirmed perjurer, but the veracity of a reckless motorist concerning matters other than his own driving might be considered beyond reproach. Where proof of a previous conviction is permissible as affecting credit, contradiction of the denial of previous conviction is allowed, because of the practical considerations mentioned above.

1. Cross Evidence, (1974), p. 235.

85.10. There is no particular restriction as to the kind of previous convictions that can be raised. In England, the matter has been covered by statut.- section 6, Criminal Procedure Act. 1865,1-which applies to civil cases also. The section reads

"A witness may be questioned as to whether he has been convicted of any felony or misdemeanour, and upon being so questioned, if he either denies or does not admit the fact, or refuses to answer, it shall be lawful for the cross-examining party to prove such conviction."2

Although there is no direct authority on the point, the statute (section 6, Criminal Procedure Act, 1865) is usually taken to mean what it says, so that a witness may be asked about any conviction, whether it would ordinarily be thought relevant to credibility or not, and the conviction may be proved if it is not admitted.3

It would appear that the position would be substantially the same in India also, having regard to the wide language of the relevant Exception to section 153.

1. Criminal Procedure Act, 1865, section 6.

2. On the position at common law, see the judgment of Dixon, J., in Bugg v. Day, (1949) 79 CLR 442.

3. Clifford v. Clifford, (1961) 5 All ER 231 (232); Marti v. Sinfield, (1881) 49 LJQB 696; (deciding that a conviction for embezzlement may be proved against a witness in a commercial case, though going only to credibility).

85.11. Impartiality.-

The second exception to the rule against contradiction on collateral facts permits the statement of a witness as to the non-existence of factors leading to a bias to be contradicted. This is apparently on the assumption that the partiality of a witness is such an important flaw that it must, in all probability, seriously shake his credit, and in view of its important effect on the persuasive force of the evidence, contradiction should be allowed even though it is a collateral fact.

85.12. No change.-

On a consideration of the various aspects relevant to the subject, we do not think that the section needs any change.

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