Corroboration of a Witness under Sections 159 to 161 of the Bharatiya Sakshya Adhiniyam, 2023

Three sections deal with supporting a witness rather than attacking him. One admits evidence of surrounding circumstances the witness observed; one admits his own earlier statements to confirm what he now says; and one deals with the declarant who is not in the box at all, and whose statement the other side has no other way of testing. The middle provision is the most used in Indian courts, and the limit on it is as important as the permission.

1. The Three Provisions

The three are complementary. Section 159 supports a witness by admitting evidence of things he observed around the relevant fact. Section 160 supports him by admitting what he himself said earlier. Section 161 deals with the different case of a person whose statement is in evidence although he is not a witness, and permits both contradiction and corroboration of it.

2. Section 159 — Corroborating by Surrounding Circumstances

The illustration explains the provision better than the text, and it identifies the situation in which the section is most useful: an accomplice whose account of the offence cannot be corroborated directly, because nobody else was present.

The mechanism is indirect and is worth stating. The witness describes incidents on his way to and from the place — a person he passed, a vehicle that broke down, a shop that was open. Those incidents have nothing to do with the robbery. But if they are independently proved, they establish that he was where he says he was, at the time he says, and they therefore lend support to his account of what happened there.

Two conditions confine the section.

1. The circumstances must have been observed by the witness at or near the time or place of the relevant fact. Matters remote in time or place are outside it.
2. The court must be of opinion that they would corroborate the testimony as to the relevant fact if proved. The section is not a licence to lead evidence of everything the witness noticed that day.

3. Section 160 — Former Statements to Corroborate

This is the most used of the three and one of the most used provisions in the whole chapter. It permits a party to prove that his witness said the same thing before — and therefore that the account now given is not a recent invention.

3.1 The four requirements

1. A former statement by the same witness. The section corroborates the testimony of the person who made the statement, and nobody else's.
2. Relating to the same fact. The earlier statement must be about the matter now deposed to.
3. The witness must have been examined. A former statement cannot corroborate testimony that was never given; the section presupposes a witness in the box.
4. One of the two time conditions must be satisfied — at or about the time the fact took place, or before an authority legally competent to investigate it.

3.2 The two limbs of the time condition

The first limb rests on contemporaneity. The value of the statement lies in its having been made before there was any occasion to construct an account.

The second limb rests on the setting rather than the timing, and is the route by which statements recorded by a Magistrate are used to corroborate. A statement made months later, but before a competent authority, is within it.

3.3 The critical limitation

3.4 Police statements are excluded

The most important practical restriction comes from outside the Adhiniyam. Section 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023 — corresponding to Section 162 of the Code of Criminal Procedure, 1973 — provides that a statement made to a police officer in the course of an investigation, if reduced to writing, shall not be used for any purpose save to contradict the witness in the manner provided by Section 148.

A statement to the police can therefore never corroborate under Section 160, however contemporaneous it was. The material available for corroboration is accordingly narrower than it first appears.

The position of a first information report deserves a word. It is not substantive evidence. Where the informant is examined, it may corroborate his testimony under Section 160, and it may be used to contradict him under Section 148. Where the informant is not examined, it proves nothing — save in the exceptional case where it becomes relevant on some other footing, as a dying declaration under Section 26(a) where the informant has since died of the injuries, or as conduct under Section 6(2).

4. Section 161 — Statements of Persons Not in the Box

Section 161 addresses a structural difficulty. Section 26 admits statements by persons who are dead, cannot be found, have become incapable of giving evidence, or whose attendance cannot be procured without unreasonable delay or expense — including the dying declaration. Section 27 admits evidence given in a previous judicial proceeding. In each case the statement comes before the court without its maker, and the party against whom it is used has no opportunity to cross-examine.

The section supplies a substitute. Everything that could have been proved had the maker been called and had denied the suggestion in cross-examination may be proved now.

The section operates in both directions. It is as available to the party relying on the statement as to the party attacking it, and permits corroborative material and evidence confirming the maker's credit to be led in support.

5. Corroboration Across the Adhiniyam

It is worth putting Sections 159 to 161 in the wider setting, because corroboration is dealt with in several places and the provisions do different things.

Two propositions run through the whole scheme. Corroboration is never required as a matter of law, except where a statute says so; the requirements attaching to accomplices, child witnesses and the intermediate category of witness are rules of prudence. And corroborative material never becomes substantive evidence — it supports testimony that stands on its own, and it cannot replace testimony that has failed.

6. Practical Points

1. Under Section 159, identify the circumstances and show how they would corroborate, since the court must form that opinion before the questions are allowed.
2. Under Section 160, establish which limb applies — contemporaneity, or a statement before a competent authority.
3. Examine the witness first. A former statement cannot corroborate testimony that was never given.
4. Do not attempt to corroborate by a police statement. Section 181 of the BNSS bars it for any purpose except contradiction.
5. Remember that a first information report proves nothing if the informant is not examined, save on some independent footing.
6. Never treat a corroborative statement as substantive evidence of the facts it contains.
7. When attacking a dying declaration, invoke Section 161 expressly, and identify what would have been put to the deceased in cross-examination.
8. Distinguish rules of prudence from rules of law. Corroboration is required as a matter of law almost nowhere.

7. The Position Stated Shortly

1. Section 159 admits evidence of surrounding circumstances observed by the witness at or near the time or place, where the court thinks they would corroborate.
2. It assists the reliability of the witness, not the connection of the accused with the offence, and is chiefly used for accomplices.
3. Section 160 admits the witness's own former statements made at or about the time of the fact, or before an authority legally competent to investigate it.
4. A corroborative statement is not substantive evidence and cannot survive the failure of the testimony it supports.
5. A statement to the police can never corroborate — Section 181, BNSS — though a statement to a Magistrate can.
6. A first information report corroborates the informant if he is examined, and proves nothing if he is not.
7. Section 161 permits a statement under Section 26 or 27 to be contradicted, corroborated, impeached or confirmed, as if its maker had been a witness.
8. Section 161 is how a dying declaration is answered, its maker being unavailable for cross-examination.

8. Related Topics and Provisions