Discuss giving an instance: What are the purposes for which previous statement of a witness may be used under Evidence Act? Also: 'A' is prosecuted for murder of 'B'. 'C' says that 'B' immediately before death declared that 'A' had inflicted 'B' the wounds of which he died. On behalf of defence, evidence is offered to show that on a previous occasion 'C' said that the wound was not given by 'A' or in his presence. Discuss whether the proposed evidence is admissible.

The Concept of a Previous Statement

A previous statement of a witness is any statement made by him on an occasion prior to his examination in court — whether oral or written, whether made to a police officer, a magistrate, a private individual, or any other person. Such statements differ from the testimony given in court in one critical respect: they are not made on oath, they are not tested by cross-examination at the time of making, and the court cannot observe the demeanour of the deponent. Yet the law gives them varying degrees of evidentiary weight depending upon the purpose for which they are used, and the Act has carefully identified and regulated each such purpose.

Purposes for Which a Previous Statement May Be Used

First Purpose: Corroboration — Section 157 of the IEA (Section 160 of the BSA)

Section 157 of the IEA (Section 160 of the BSA) provides that in order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.

Corroboration means confirmation — the demonstration that the witness said the same thing on an earlier occasion, before there was any motive to fabricate or colour the account. When a witness gives testimony in court and is subsequently found to have made a prior consistent statement to the same effect, that prior statement does not independently prove the fact — it strengthens the credibility of the testimony already given. In Rameshwar v. State of Rajasthan (AIR 1952 SC 54), the Supreme Court held that the object of corroboration is to add to the weight of the witness's testimony by showing that he made the same statement at an earlier time, when the circumstances were such that there was less reason to fabricate.

The prior statement used for corroboration need not be in writing. Under Section 157 of the IEA, an oral statement — made at or about the time of the incident, or before an authority competent to investigate — is equally admissible for this purpose. The FIR, a statement to the magistrate under Section 164 of the CrPC, and a complaint to a superior officer have all been used in this manner.

Second Purpose: Contradiction — Section 145 of the IEA (Section 148 of the BSA)

Section 145 of the IEA (Section 148 of the BSA) provides that 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.

Contradiction is the converse of corroboration. The purpose here is to demonstrate that the witness said something different on a previous occasion — that his current testimony in court is inconsistent with what he said before. Such inconsistency damages his credibility and invites the court to doubt the accuracy or honesty of his current account.

The procedure is mandatory and cannot be bypassed. The confrontation rule requires that before a prior written statement can be proved against a witness for the purpose of contradiction, the witness must be shown the relevant parts of that statement and given the opportunity to explain the inconsistency. This rule — sometimes called the rule of fair play — was recognised by the Privy Council as early as Balgangadhar Tilak v. Srinivasa (AIR 1915 PC 7), where the Board described it as a provision in accord with the sense of fair play to which courts are accustomed.

Importantly, while the first part of Section 145 of the IEA permits cross-examination as to any previous written statement without showing it to the witness, the second part — contradiction — requires confrontation. In Tahsildar Singh v. State of Uttar Pradesh (AIR 1959 SC 1012), a six-judge Full Bench of the Supreme Court held that the section is in two parts: the first part deals with cross-examination without contradiction, and the second deals with contradiction proper. The confrontation must precede the proof of the document.

Third Purpose: Impeaching Credit — Section 155(3) of the IEA (Section 158(c) of the BSA)

Section 155(3) of the IEA (Section 158(c) of the BSA) permits the credit of a witness to be impeached by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted. This is related to but not identical with the use under Section 145. Under Section 145, the focus is on the procedure of cross-examination and contradiction during the examination of the witness. Under Section 155(3), the focus is on the ultimate purpose — impeaching the credit — and the mode by which it is achieved.

The connection between these two provisions was settled by the Supreme Court in a line of cases which held that Section 155(3) of the IEA must be read subject to the procedural requirements of Section 145, so that the confrontation rule applies equally when the purpose is impeachment of credit through prior inconsistent statements.

Fourth Purpose: Refreshing Memory — Sections 159, 160 of the IEA (Sections 162, 163 of the BSA)

A previous statement made by the witness at or about the time of the transaction — or by another person and verified by the witness — may be used by the witness to refresh his memory while under examination. This purpose has already been discussed in detail, and it is sufficient here to note that the use for refreshing memory does not make the document itself substantive evidence. The testimony refreshed from the document is the evidence; the document is the trigger.

Fifth Purpose: Proof of Contradictions in Statements Under Section 32 — Section 158 of the IEA (Section 161 of the BSA)

Section 158 of the IEA (Section 161 of the BSA) provides that whenever a statement relevant under Section 32 (dying declaration) or Section 33 (statement of persons who cannot be called as witnesses) is proved, all matters may be proved either to contradict or corroborate it, or to impeach or confirm the credit of the person by whom it was made — which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested. This is the provision that governs the specific illustration in the second part of the present question, and it deserves extended treatment.

A Summary of Purposes

Part II: The Murder Prosecution — The Problem Stated

A is prosecuted for the murder of B. C says that B, when dying, declared that A had inflicted B the wounds of which B died. On behalf of the defence, evidence is offered to show that on a previous occasion C said that the wound was not given by A or in his presence. The question is whether this proposed evidence is admissible.

The Nature of C's Statement in Court

Before addressing the admissibility of the proposed evidence, it is essential to understand the nature of what C is doing in the witness box. C is not giving direct evidence of having witnessed the crime. C is deposing to a statement made by B — the deceased — in the form of a dying declaration, to the effect that A gave him the fatal wound. C is, in effect, the conduit through whom B's dying declaration reaches the court.

B's dying declaration, if it satisfies the conditions of Section 32(1) of the IEA (Section 26 of the BSA), is relevant and admissible as an exception to the rule against hearsay. It is the statement of a person who is dead, made under circumstances that make it unlikely to be fabricated, concerning the cause of his death. The court may act upon it. But its credibility and accuracy depend critically upon the accuracy of C's account of what B said. If C is lying about what B told him, or if C on a previous occasion said something entirely different about the source of B's wound, the entire edifice of the dying declaration is undermined.

The Governing Provision: Section 158 of the IEA (Section 161 of the BSA)

Section 158 of the IEA (Section 161 of the BSA) provides:

"Whenever any statement, relevant under section 32 or 33, is proved, all matters may be proved either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested."

This provision is the master key to the problem. B's dying declaration is a statement relevant under Section 32(1) of the IEA (Section 26 of the BSA). It has been proved through C. Now, the defence offers evidence to show that C, on a previous occasion, said that the wound was not given by A or in A's presence. This previous statement of C is inconsistent with the testimony C is now giving in court — that B declared A had inflicted the wound.

The proposed evidence of C's previous inconsistent statement is admissible under Section 158 of the IEA (Section 161 of the BSA), read with Section 155(3) of the IEA (Section 158(c) of the BSA). Illustration (b) to Section 155 of the IEA makes this exact scenario a part of the statute itself.

Illustration (b) to Section 155 of the IEA

The illustration reads:

"A is indicted for the murder of B. C says that B, when dying, declared that A had given B the wound of which he died. Evidence is offered to show that, on a previous occasion, C said that the wound was not given by A or in his presence. The evidence is admissible."

This illustration admits of no ambiguity. The previous statement of C — contradicting his present deposition about the content of the dying declaration — is admissible to impeach the credit of C. And under Section 158 of the IEA (Section 161 of the BSA), all matters that could be proved to contradict or impeach the credit of B (had B been alive and called as a witness) may also be proved in the context of B's dying declaration as recorded by C.

The Logic of the Rule

The wisdom embedded in Section 158 of the IEA (Section 161 of the BSA) becomes clear when one considers the alternative. If the previous inconsistent statement of C were inadmissible, the accused would be in the gravest jeopardy. A dying declaration, by its very nature, cannot be cross-examined — the declarant is dead. If the conduit through whom that declaration reaches the court — the witness C — could not himself be impeached or contradicted by his own prior statements, the accused would have no effective remedy against a false or coloured version of what the deceased said. Justice demands that where direct cross-examination of the declarant is impossible, the cross-examination and impeachment of the witness who deposes to the declaration must be available without restriction.

Section 158 of the IEA (Section 161 of the BSA) therefore equates the evidentiary position of B's dying declaration — for the purposes of contradiction and impeachment — with what it would have been had B been alive and testifying. If B himself had been alive and had said in court what C attributes to him, the defence could have cross-examined B and could have confronted B with any prior inconsistent statement. Since B is dead and cannot be cross-examined, the law permits all the matters that could have been proved against B — in order to contradict, corroborate, impeach, or confirm his credibility — to be proved in the case of his dying declaration as well. C, as the vehicle of that declaration, is therefore fully open to contradiction by his own prior inconsistent statement.

The Procedure: Section 145 of the IEA Must Be Observed

The admissibility of the evidence is one thing; the procedure for adducing it is another. If the previous inconsistent statement of C is in writing — for example, a statement recorded under Section 164 of the CrPC or a statement given to the police — then before it can be proved against C, the requirements of Section 145 of the IEA (Section 148 of the BSA) must be complied with. C must have been asked about the previous statement in cross-examination. His attention must have been called to those parts of the document which are to be used for contradiction. He must have been given an opportunity to explain the inconsistency.

In Rammi v. State of Madhya Pradesh (AIR 1999 SC 3544), the Supreme Court held emphatically that for the purpose of contradicting a witness by a previous statement, there must be strict compliance with Section 145 of the IEA. Failure to confront the witness with the prior statement before seeking to prove it is a fatal irregularity — it cannot be cured by calling the evidence without first having put the statement to the witness.

If the previous statement of C was oral — made, say, to a neighbour or a village panchayat — it can still be used to contradict, but only through the testimony of a person who heard C make that oral statement. The oral contradiction is permissible under Section 155(3) of the IEA (Section 158(c) of the BSA), and Section 158 of the IEA (Section 161 of the BSA) extends the same privilege to the dying declaration context.

Effect of the Contradiction on the Dying Declaration

It is important to understand what the contradiction achieves and what it does not. The previous inconsistent statement of C does not, by itself, prove that A did not give B the wound. Nor does it make the dying declaration inadmissible. The dying declaration of B, if properly proved as relevant under Section 32(1) of the IEA (Section 26 of the BSA), remains on the record. What the contradiction does is damage the credit of C as the vehicle through whom the dying declaration has been transmitted to the court. If C is shown to have said something diametrically opposite on a previous occasion, the court will scrutinise the dying declaration with much greater care and may decline to act upon it without corroboration.

The Supreme Court, in Khushal Rao v. State of Bombay (AIR 1958 SC 22), laid down the principles for the appreciation of dying declarations: that a dying declaration can be the sole basis of a conviction if it inspires confidence, but the court must be satisfied that the deceased was in a fit state of mind, that the statement was voluntary, and that it has been faithfully and accurately transmitted by the witness through whom it is proved. If the transmitting witness — in our illustration, C — has made a prior inconsistent statement, the question of faithful transmission is directly placed in issue, and the court must resolve it.

In Paniben v. State of Gujarat (AIR 1992 SC 1817), the Supreme Court held that a dying declaration which is found to be reliable and consistent need not be corroborated — but if any doubt attaches to its recording or transmission, the court should look for corroboration before acting upon it. C's prior inconsistent statement would be precisely the kind of material that raises doubt about the faithful transmission of B's dying declaration, and would make the search for corroboration mandatory.

Additional Use: Section 157 — Corroboration

It must also be noted, for completeness, that the same provision — Section 158 of the IEA (Section 161 of the BSA) — operates equally in the other direction. Just as the dying declaration may be contradicted or its recorder's credit impeached, it may equally be corroborated. If C's testimony about B's dying declaration is supported by other evidence — a prior statement made by C to the same effect, or independent evidence about the circumstances of the death — that corroboration is equally admissible, and serves to strengthen the court's confidence in the declaration. The section thus creates a symmetrical system: contradiction, corroboration, impeachment, and confirmation are all available without distinction.

Conclusion of the Analysis

The evidence offered on behalf of the defence — proof of C's previous statement that the wound was not given by A or in A's presence — is clearly and expressly admissible. It is admissible under Section 155(3) of the IEA (Section 158(c) of the BSA) to impeach the credit of C, extended to the dying declaration context by Section 158 of the IEA (Section 161 of the BSA). It is supported directly by Illustration (b) to Section 155 of the IEA, which makes the precise situation in this problem a part of the statute. The procedure of Section 145 of the IEA (Section 148 of the BSA) must, however, be scrupulously observed if the prior statement is in writing. The effect of the evidence, once admitted, goes to the weight the court will attach to the dying declaration as transmitted through C — it does not automatically destroy the declaration, but it raises a question of reliability that the court must consciously address before acting upon the declaration as proof of A's guilt.