'Where a party fails to question his opponent's witness, the presumption is that his evidence is accepted.' Elaborate this statement, and indicate the exceptions, if any. Also: Is it correct to say: 'The evidence of a prosecution witness is unworthy of credit in any particular case if he gives evidence contrary to his statement recorded during investigation under section 161 Cr.P.C. after he has been contradicted, with leave of the Court, with that statement.'

The Rule of Failure to Cross-Examine

The adversarial system rests on a fundamental premise: every witness who testifies must be given to the opposite party for testing by cross-examination. Section 138 of the Indian Evidence Act, 1872, now reproduced in Section 143 of the Bharatiya Sakshya Adhiniyam, 2023, lays down the order of examination — examination-in-chief, then cross-examination if the adverse party so desires, and then re-examination. The word "if the adverse party so desires" makes cross-examination optional as a matter of right, but the tactical and evidentiary consequences of declining to exercise it are profound.

The settled principle, stated compendiously in a long line of decisions, is encapsulated in the very words cited: a witness should be cross-examined on each and every point and failure to cross-examine him on a particular point would entail a presumption that the party not cross-examining the witness had accepted the evidence. This was authoritatively stated by the courts interpreting Section 138 of the IEA and is retained under Section 143 of the BSA. As the Kerala High Court observed in Mariamma Itty v. KJ Abraham (AIR 2017 CC 5), any fact asserted by a witness, if not challenged in cross-examination by the adverse party, will certainly amount to acceptance of that fact, and if the relevant facts in the examination-in-chief are not challenged, they shall be deemed to be admitted.

The origin of this principle in English law is the famous rule in Browne v. Dunn (1893 6 R 57 HL), where Lord Herschell, LC, expressed that if you intend to impeach a witness, you are bound, while he is in the witness-box, to give him an opportunity of making any explanation which is open to him — and that this is not only a rule of professional ethics but is essential to fair play and fair dealing with witnesses. This rule has been deeply absorbed into Indian jurisprudence through Section 145 and Section 138 of the IEA (Sections 148 and 143 of the BSA), where it has been repeatedly applied by the Supreme Court.

The Foundation of the Rule

The reason for this principle is rooted in the logic of the adversarial process. Cross-examination is, in the words of Taylor on Evidence, "the most effective of all means for extracting truth and exposing falsehood." When a party fails to challenge a portion of the evidence given in examination-in-chief, the court is entitled to treat that portion as accepted. The adverse party cannot wait until the stage of final arguments and then, with the record closed, invite the court to disbelieve evidence it never tested. As was observed in State of U.P. v. Nahar Singh (1998 3 SCC 561), a postman was not cross-examined on the crucial aspect of whether he was on duty and whether his endorsement was correct — and it was held that in the absence of such cross-examination, his statement in examination-in-chief had been rightly relied upon.

The principle is grounded in basic fairness to the witness as well. A witness has a right to be given an opportunity to explain, to clarify, or to contradict whatever is said to be inconsistent with his testimony. If a suggestion adverse to his character, his conduct, or his testimony is held in reserve and sprung at the stage of arguments, the witness is denied this opportunity. The rule in Browne v. Dunn requires that such challenges must be put to the witness while he is still in the box.

The Practical Dimensions of the Rule

The rule operates across both civil and criminal proceedings. In Sarwan Singh v. State of Punjab (2003 1 SCC 240), the Supreme Court held that it is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross-examination, it must follow that the evidence tendered on that issue ought to be accepted. In Ravinder Kumar Sarma v. State of Assam (1999 7 SCC 435), the appellant in a civil suit for damages against two police officers cross-examined one of them on the allegation of demanding a bribe but failed to put the same suggestion to the other officer. It was held that he had not properly substantiated his allegations against the officer he had not confronted.

Similarly, in Bilal Hajar v. State (AIR 2018 SC 4780), the Supreme Court held that where an accused had an opportunity to cross-examine the witnesses but failed to avail himself of that opportunity and merely adopted the cross-examination done by a co-accused, he could not subsequently be permitted to find fault in the evidence of those witnesses or rely upon contradictions that did not amount to major discrepancies affecting their testimony.

Illustration: In a murder trial, PW-3, an eyewitness, deposes that he saw the accused strike the deceased with an iron rod at 9 PM near the street lamp. The defence does not cross-examine him on this specific point. The defence cannot, at the argument stage, contend that the lighting was insufficient or that PW-3 was not present at the scene, since he was not confronted with these questions while in the box.

Exceptions and Qualifications to the Rule

The presumption arising from failure to cross-examine, while strong, is not absolute. The courts have recognised several important qualifications that prevent the rule from operating unjustly.

First — the rule does not make unchallenged testimony inviolable. The court retains the power and the duty to evaluate the totality of evidence on record. In Juwar Singh v. State of Madhya Pradesh (AIR 1981 SC 373), the Supreme Court held that cross-examination is not the only method of demolishing a witness — the court may discard testimony if it is not believable, even if the witness has not been cross-examined. The presumption of acceptance arising from failure to cross-examine goes only to the weight of the evidence, not to its absolute acceptance.

Second — minor omissions do not trigger the presumption. As the Bharatiya Sakshya Adhiniyam itself recognises in the context of Section 148, there are normal discrepancies and material discrepancies. It would be unreasonable to hold that failure to cross-examine on every single sentence of a long deposition amounts to acceptance of that sentence. As the Kantara High Court observed, on failure of the defence to challenge the relevant facts brought in examination-in-chief, the court has a discretion to accept that part of the evidence — it is not an irrebuttable presumption.

Third — where the evidence in examination-in-chief is self-contradictory or implausible on its face. As noted in the BSA commentary, "merely because one sentence in the examination-in-chief is not traversed in cross-examination that does not mean that what has been stated in examination-in-chief is held to be proved." The court must still assess intrinsic reliability.

Fourth — where the witness was unable to be cross-examined through no fault of the adverse party. Where a witness was examined-in-chief but died before cross-examination, the evidence is not rendered inadmissible — it is only to be treated with greater caution. The Madras High Court in Maharaja of Kolhapur v. S. Sunderam Ayyar (AIR 1925 Mad 497) held that such testimony could be given some weight depending on circumstances, and the Patna High Court in Horli Kumar v. Rajab Ali (AIR 1936 Pat 34) was to the same effect.

Fifth — in matters going only to credit and character. Section 156 of the BSA (Section 153 of the IEA) provides that when a witness is asked and answers any question relevant only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him — but if he answers falsely, he may be charged with false evidence. However, if the question pertains to matters relevant to the main issue, a failure to cross-examine on that matter will operate as acceptance.

Omissions in Police Statements as Contradictions

A related and frequently misunderstood dimension of this rule concerns the use of omissions in the police statement under Section 161 CrPC (now Section 180 BNSS) as contradictions of a prosecution witness. The Explanation to Section 162 CrPC (now Section 181 BNSS) provides expressly that an omission to state a fact or circumstance in the statement recorded under Section 161 may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs. The Supreme Court has held that whether such an omission amounts to a contradiction is a question of fact in each case, and glaring omissions that go to the core of the prosecution case may lead the court to conclude that the evidence is unreliable.

The Second Proposition: Does Contradiction with Section 161 Statement Make Evidence Unworthy of Credit?

The second proposition in the question deserves careful analytical treatment. It states: "The evidence of a prosecution witness is unworthy of credit in any particular case if he gives evidence contrary to his statement recorded during investigation under Section 161 CrPC after he has been contradicted, with leave of the Court, with that statement."

This proposition is not correct as an absolute rule. It overstates the legal position considerably. To understand why, it is necessary to trace the precise legal framework governing the use of Section 161 statements.

The Statutory Position: Section 162 CrPC and Sections 145/155 IEA

Section 162 of the CrPC (Section 181 of the BNSS) imposes a strict bar on the use of any statement made by a person to a police officer in the course of investigation at any inquiry or trial. The statement, even if reduced to writing, cannot be used as substantive evidence. The proviso to Section 162(1) carves out a single exception: the statement may be used to contradict the witness in the manner provided by Section 145 of the IEA (now Section 148 of the BSA), but for no other purpose.

Two critical distinctions must therefore be kept in mind:

The procedure for contradicting a witness with his Section 161 statement requires, as the Supreme Court emphasised in Tahsildar Singh v. State of UP (AIR 1959 SC 1012), strict compliance with Section 145 of the IEA. Before the writing can be proved and used to contradict the witness, his attention must be called to those parts of it which are to be used for the purpose of contradicting him. It is not permissible for counsel to hold the prior statement in one hand and the deposition in the other and argue at the stage of final arguments that they contradict each other — as the Madras High Court bluntly observed in Murugesan v. State Represented by Inspector of Police, Mecheri, "We are sorry to say that such a procedure is unknown to law."

Why the Proposition Is Not an Absolute Rule

Now, the core question: if a prosecution witness is properly contradicted with his Section 161 statement in accordance with Section 145 (Section 148 BSA), does his evidence become ipso facto "unworthy of credit"? The answer emphatically provided by the courts is — No.

The Supreme Court has, over a long line of decisions, firmly held that contradiction with a prior police statement is only one factor in the overall assessment of the witness's credibility. The effect of the contradiction on the witness's credit depends on:

1. Whether the contradiction is material or minor. As the BSA commentary draws from judicial decisions, there are normal discrepancies and material discrepancies. Normal discrepancies — caused by errors of observation, errors of memory, lapse of time, or shock and horror at the time of occurrence — do not corrode the credibility of the witness. Material discrepancies — those which are not normal and not expected of a reasonable person — do affect credibility. The courts must label the category to which a discrepancy belongs. Where minor contradictions between the deposition and the Section 161 statement are pointed out, the prosecution case cannot be jettisoned.

2. Whether the witness offers a rational explanation. The entire purpose of drawing the witness's attention to his prior statement under Section 145 before using it to contradict him is to give him an opportunity to explain. If the witness provides a satisfactory explanation of the discrepancy — such as that he forgot, or was frightened, or was not specifically asked about it — the contradiction loses much of its force.

3. Whether the omission in the police statement was significant. As the Explanation to Section 162 says, an omission may amount to a contradiction only if it appears to be significant and otherwise relevant having regard to the context. Where a witness fails to mention a crucial fact in his Section 161 statement but deposes about it in court, a significant omission may raise doubts — but not every omission automatically renders the testimony unworthy of credit.

Illustration: In a robbery trial, PW-2 in his Section 161 statement does not mention that the accused was wearing a red shirt. In court, he says the accused was wearing a red shirt. He is contradicted with his prior statement. This is a minor detail — an omission in a police statement that does not relate to the core of the commission of the offence. The witness's testimony on the identity of the accused and the manner of the robbery, if otherwise consistent and credible, will not be discarded merely because of this omission.

On the other hand, if PW-2 in his Section 161 statement says he was standing 50 metres away from the scene but in court says he was standing 5 metres away — a material contradiction goes to the foundation of his claim of being an eyewitness. Even so, the courts have consistently held that the testimony is not automatically rejected. As was held in Bishna v. State of West Bengal (AIR 2006 SC 302), cross-examination as to previous contradictory statements in writing goes to the weight of the evidence, not to its complete exclusion from consideration.

The Correct Legal Position

The correct proposition that the law has settled may be stated thus: where a prosecution witness is contradicted with his Section 161 statement in the manner provided by Section 145 of the IEA (Section 148 of the BSA), the contradiction is relevant to the assessment of his credibility. The court must examine:

• The nature and gravity of the contradiction

• Whether it goes to the core of the incriminating testimony or only to peripheral details

• Whether the witness has offered a satisfactory explanation

• Whether the rest of his testimony is otherwise consistent, corroborated, and credible

The court is not bound to reject the entirety of the witness's testimony merely because a contradiction has been established. If the essential portion of the witness's deposition — the part that clinches the prosecution case — is unshaken by the contradiction, the court can and should act upon it. In fact, as was established in Bhagwan Singh v. Punjab (AIR 1952 SC 214), resort to Section 145 would only be necessary if the witness denies that he made the former statement — once he admits it, the court may give it such weight as it deems fit in the totality of circumstances.

It is only when the contradiction is so fundamental and so destructive of the witness's reliability — for instance, where he claims to have been present at the scene but his own statement to the police shows he was elsewhere, or where his description of the accused in court is diametrically opposite to what he told the police — that his evidence may be regarded as wholly unworthy of credit. Even then, such a conclusion requires a careful analysis of the record, not a mechanical application of the proposition that contradiction equals unreliability.

The statement in the question, as an absolute proposition, must therefore be rejected. It reflects a misunderstanding of the legal position. Contradiction by prior police statement is a tool for testing credibility, not a guillotine that beheads testimony automatically. The distinction between impeaching the credit of a witness and completely rejecting his evidence is crucial, and the two must not be conflated.