Report No. 69

88.11. Principle.-

To express the principle underlying section 157 in different terms, prior statements otherwise inadmissible by virtue of the rule against hearsay are let in to lend credibility, particularly to rebut any suggestion of recent fabrication. If the hearsay rule is strictly applied, it would not be permissible to admit prior statements. But when questions of credibility arise, certain aspects assume importance, and a limited exception is made. Even then, the prior statements are not substantive evidence. So far as the aspect of hearsay is concerned, however, it is proper to point out that even though the previous, statements was not made before the Court on oath and the declarant was not subject to cross-examination, the previous statement is admissible to rebut the doctrine of recent invention.

If it is suggested that the witness has recently invented the story, it is permissible to prove, in rebuttal of the suggestion, that he told the same story at a time more nearly contemporaneous with the evidence to which he is now deposing. Such evidence, however, goes only to corroborate and should not be used as evidence of the truth of the fact stated.5

1. Cunningham Evidence, section 156, and Markby Evidence, pp. 109-110, cited in Woodroffe.

2. Markby Evidence, pp. 109, 110.

3. Moulvi Mahomed Ikramull Hag v. Wilkie, (1907) 11 CWN 946.

4. Hari Krishna v. R., (1915) 42 Cal 734; see R. v. Babar Ali Gazi, ILR 242 Cal 789. (Corroboration of confession of co-accused).

5. Nominal Defendant v. Clements, 104 Commonwealth LR 476 (483, 495).

88.12. Of course, the mere fact that a man had, on a previous occasion, made the same assertion as the present does not necessarily add to its truthfullness. One may persistently adhere to falsehood once uttered, if there is a motive for it. However, consistency could be a ground for belief in the veracity of the witness and it had long been the practice in India to treat it as corroborative evidence. This practice is illustrated by a number of judicial decision before the Act. The previous practice and statutory provisions have been simplified and reproduced in section 157.

88.13. Other provisions relevant to previous statement.-

The fact that a previous statement is admissible under section 157 as corroborative evidence does not, of course, mean that the provisions of any other section under which it may be relevant are excluded. For example, a statement by a girl, alleging that she was raped, if made immediately after the rape, becomes relevant under section 8, as showing the conduct of the victim of an alleged offence, which conduct is influenced by a fact in issue. The situation is expressly dealt with in section 8, illustration (j). The only refinement which may be mentioned here is that while a statement not in the nature of a complaint is outside section 8, it is within section 157:

"The distinction is of importance; because while a complaint is always relevant, a statement not amounting to a complaint will only be relevant under particular circumstances, for example, if it amounts to a dying-declaration or can be used as corroborative evidence."1-2

1. Norton Evidence, p. 114, cited in Woodroffe.

2. See also Ganga Dhar v. R., 1915 ILR 43 Cal 173.

88.14. Not substantive evidence.-

What becomes admissible under section 157 is not substantive evidence. The point became important in one of the earlier Calcutta case1 X was tried for and convicted of an offence, and the depositions of witness given in a previous trial of Y, Z and others, charged with having been engaged in the same offence, were used against X. In the trial of X, the witnesses merely said: "I gave evidence before in this court and that evidence is true". Commenting on this procedure, the High Court had to point out that the proper procedure was to examine the witness a fresh in the trial of X, using the depositions, containing their statements in the earlier trial as corroborating the testimony given in the present trial.

1. R. v. Bisho Nath, (1869) 12 WR Cr 13.

88.15. English law.-

It is of interest to note that section 157 departs from the common law rule. In England, corroboration must be by independent testimony and so no corroboration is afforded by mere reiteration by the same witness. The theory is that if it were otherwise, a liar could corroborate his lies merely by repeating them. Evidence of his conduct or statements made out of court may be used against him if they amount to admissions,1 but not to confirm his evidence, for otherwise "every man, if he was in difficulty would make declarations for himself."2-3

As Hewtrt observed4-"In order that evidence may amount to corroboration, it must be extraneous to the witness to be corroborated."

1. Phipson Manual of Evidence, (1972), p. 168.

2. Jones v. South Eastern & Chatham Ry., (1918) 87 LJKB 775; Corke v. Corke & Cooke, (1958), p. 93; R. v. Beadle, 1958 Cr LR 44.

3. R. v. Hardy, (1794) 24 Howard ST 199 (per Eyre, C.J.).

4. R. v. Whitehead, (1929) 1 KB 99 (102) (per Hewart, LCD.

88.16. Position in England in criminal cases.-

Thus, in England, previous statements are not, at common law, admissible. Even in criminal cases involving sexual offences, a mere complaint is not admissible, though conduct accompanied by complaint would be admissible. Thus, it was held, on a, charge of sexual attack upon a young girl that her complaint is not corroborative evidence on the charge, but her distreped condition is.1This distinction assumes importance in the light of the general rule 'in England, namely, that on a charge of rape and similar offences, it is the practice to instruct the jury that it is unsafe to base the charge upon an uncorroborated testimony of the victim.

1. Redpath, (1962) Cr LR 491.

88.17. The principal object of the prohibition against corroboration by prior statement was to prevent the manufacture of self-serving evidence by a party witness and to prevent interruption by collateral issues and superfluous matters. Technically, then, there being no common law exception in general, a previous statement made by a person, including a self-serving statement by a party witness, would fall within the rule against hearsay. This rule has been changed in regard to Civil Evidence Act,1 which provides that any statement made by a witness shall, if the leave of the court is obtained, be admissible as evidence of any facts stated therein of which direct oral evidence by him would be admissible.

1. Section 2(1), Civil Evidence Act, 1968.

88.18. Exceptions at common law.-

What we have stated above as to the common law was, of course, subject to certain exceptions meant for special situations even at common law. Chief amongst such exceptions1-2 were previous consistent statements admissible as part of the res gestee; also, previous statements sometimes regarded as admissible where it was suggested in cross-examination that the witness has recently been won over and, in certain cases, pre-trial identifications by witness.3

In England, the fact that a witness had made a previous statement similar to a witness's testimony in court was formerly aamissible to confirm his testimony'4 later, but such evidence became inadmissible at common law. There were exceptions whereunder previous statements were receivable to show that the witness is consistent with himself-but this was only in specified cases-e.g. where the witness is charged with having recently fabricated the story.5 There was also an exception as to sexual offences.

A change was made in the law by the Evidence Act, 1938 which provided that in any civil proceeding where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall be admissible as evidence of that fact under certain conditions6. The Civil Evidence Act, 1968 has now extended this to include former oral statements also. Section 3(1) of the Act of 1968 further lays down that where for the purpose of rebutting a suggestion of fabrication a previous consistent statement has been proved, it shall be admissible as evidence of the fact stated.

1. Cox v. General Medical Council, (1960) 3 All ER 225.

2. Nominal Defendant v. Clements, (1951) 104 Commonwealth LR 476.

3. See (1968) Cambridge LJ 64.

4. Lutterell v. Reynell, (1670) 1 Mad 282 (283).

5. R. v. Coll, 24 LR Ir 522.

6. See Bhogilal v. S., AIR 1959 SC 356.

88.19. Complaints.-

Even at common law, an exception is provided in England in the rule that complaints in sexual cases are sometimes admissible to show consistency between the complainant's conduct and her testimony.1 Although the admission of such evidence may well enhance her evidence and make it more credible, nevertheless, in such cases, corroboration of the complainant's evidence is always required, and evidence of complainant will not be reckoned as such, because it does not come from some independent source.2

1. Phipson Manual of Evidence, (1972), p. 45

2. (a) R. v. Christie, 1914 AC 545; (b) R. v. Whitehead, (1929) 1 QB 99.

88.20. Statutory provision.-

It should also be stated that in England, by a recent statutory provision1 a previous statement of a witness, if proved, is to be evidence of the facts stated in certain cases, as already stated. The provision is quoted below-

"3. Witness's previous statement, if proved, to be evidence of facts stated.-(1) Where in any civil proceedings-

(a) a previous inconsistent or contradictory statement made by a person called as a witness in those proceedings is proved by virtue of sections 3, 4 or 5 of the Criminal Procedure Act, 1865; or

(b) a previous statement made by a person called as aforesaid is proved for the purpose of rebutting a suggestion that his evidence has been fabricated, that statement shall, by virtue of this subsection, be admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible.

(2) Nothing in this Act shall affect any of the rules of law relating to the circumstances in which, where a person called as a witness in any civil proceedings in cross-examination on a document used by him to refresh his memory, that document may be made evidence in those proceedings; and where a document or any part of a document is received in evidence in any such proceedings by virtue of any such rule of law, any statement made in that document or part by the person using the document to refresh his memory shall by virtue of this sub-section be admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible."

1. Section 3, Civil Evidence Act, 1968 (e- 64).

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