Cross-Examination as to Previous Statements in Writing under Section 148 of the Bharatiya Sakshya Adhiniyam, 2023: Contradicting a Witness

A witness says one thing in court and had said another before. Section 148 is the machinery by which the difference is brought home to him, and it is drafted with a deliberate asymmetry: he may be questioned about the earlier statement without it being shown to him, but he may not be contradicted by it until his attention has been drawn to the very words relied upon. The permission is what makes cross-examination effective; the condition is what makes it fair.

1. The Provision

Section 148, BSA — Cross-examination as to previous statements in writing

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.

Section 148 corresponds to Section 145 of the Indian Evidence Act and is carried forward unchanged.

The section contains two limbs pointing in opposite directions, and the difference between them is the whole of the provision.

	Questioning the witness about the statement	Contradicting him by the statement
Must the writing be shown to him first?	No	Yes — his attention must be called to the parts relied upon
Must the writing be proved first?	No	Yes — and the drawing of attention must precede the proof
Purpose	To test the witness before he knows what is held against him	To place the inconsistency on the record as material the court may act upon
Effect if the condition is not met	Not applicable	The writing cannot be proved for the purpose of contradiction

⚠ Why the asymmetry exists

The first limb serves the cross-examiner. A witness who is shown his earlier statement at the outset will tailor his answers to it, and the value of the exercise is lost. He is therefore questioned freely, and may commit himself to an account before he knows what is coming. The second limb serves the witness. Once the cross-examiner intends to use the writing against him, fairness requires that he be told which words and be given the chance to explain. The section is a compromise between effectiveness and fairness, and each limb is meaningless without the other.

2. What the Section Covers

Three elements define the material to which the section applies.

A previous statement by the witness himself. A statement by somebody else is not within it. What is in issue is the consistency of this witness.

Made in writing, or reduced into writing. The second limb is the important one. An oral statement that was recorded by another person — by a police officer, by a Magistrate, in an affidavit drawn by somebody else — is 'reduced into writing' and is within the section.

Relevant to matters in question. A previous statement about something unconnected with the issues is not within the section, though it may be usable to impeach credit under Section 158.

The material that ordinarily arises is recognisable: a statement recorded during investigation; a statement recorded by a Magistrate; an affidavit filed in the same or another proceeding; a deposition in an earlier case; a complaint or a first information report made by the witness; and correspondence or documents authored by him.

3. Contradiction and Omission

The most litigated question under the section is whether an omission in an earlier statement can amount to a contradiction of what the witness now says. The answer was settled by a Constitution Bench.

📖 Tahsildar Singh v. State of Uttar Pradesh, AIR 1959 SC 1012

Held: A Constitution Bench considered the provision corresponding to Section 148 together with the bar on the use of police statements. A statement recorded during investigation can be used only to contradict a witness, and the word 'contradict' is to be given its ordinary meaning.

An omission in the earlier statement does not ordinarily amount to a contradiction. But an omission may amount to a contradiction where the statement before the court and the statement omitted from the earlier record cannot stand together — that is, where the omission is of a significant matter and is otherwise irreconcilable with what is now deposed to, so that a contradiction arises by necessary implication.

The Court gave the illustration that a recital of a fact in the deposition which, had it existed, would necessarily have found a place in the earlier statement, may by its absence contradict the deposition.

Ratio: Not every omission is a contradiction. An omission contradicts where the two versions cannot stand together, so that the contradiction arises by necessary implication.

The test the decision supplies is worked out in practice by asking three questions.

Is the matter now deposed to significant? A trivial addition is not a contradiction.
Would it necessarily have been stated earlier if true? An omission contradicts where, had the fact existed, it must have appeared in the earlier account.
Can the two versions stand together? If the earlier statement and the deposition are reconcilable, there is no contradiction however much has been added.

Situation	Contradiction?
The earlier statement says the assailant was A; the deposition says it was B	Yes — direct inconsistency
The earlier statement gives no motive; the deposition supplies one	Ordinarily no — an omission of detail
The earlier statement describes the whole occurrence without mentioning the accused; the deposition names him as the principal assailant	Yes — by necessary implication; the two cannot stand together
The earlier statement omits the weapon; the deposition supplies it	Depends — significant if the weapon is central and must have been stated
The deposition adds a detail consistent with, and merely elaborating, the earlier account	No

4. The Procedure for Contradicting

The section prescribes a condition rather than a procedure, but the practice that gives effect to it is settled and should be followed step by step.

Question the witness on the matter in cross-examination and obtain his answer on oath. This fixes the version now being given.
Draw his attention to the specific part of the earlier writing relied upon. It is not enough to refer to the statement generally; the section requires attention to those parts which are to be used.
Put the inconsistency to him and give him the opportunity to admit, deny or explain it. His answer is recorded.
Mark the relevant portion of the earlier statement, ordinarily by bracketing it and giving it an exhibit mark, so that what was put is identifiable on the record.
Prove the marked portion through the person who recorded it — in a criminal trial ordinarily the investigating officer, who deposes that the witness made that statement to him.

⚠ Step five is the one most often omitted

Putting a previous statement to a witness does not prove it. Where the witness denies having made it, the contradiction is established only by proving, through the officer or other person who recorded it, that he did. A cross-examination that puts the inconsistency and stops leaves the record showing a suggestion denied — which is worth very little. Where the witness admits the earlier statement, proof through the recorder is unnecessary, his admission having established it.

5. Statements to the Police

The great majority of contradictions in criminal trials are of statements recorded during investigation, and those are subject to a further restriction 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 at any enquiry or trial, save as the section provides. The exception permits the accused, and with the leave of the court the prosecution, to use such a statement to contradict the witness in the manner provided by Section 148 of the Adhiniyam.

Use	Permitted?
To contradict the witness who made it, in the manner provided by Section 148	Yes
To corroborate the witness under Section 160	No
As substantive evidence of the facts stated	No
To contradict a different witness	No
By the accused	Yes, as of right
By the prosecution	Yes, with the leave of the Court

Two consequences follow that are of constant practical importance.

A police statement never becomes substantive evidence. Where a witness resiles and is contradicted by his earlier statement, the earlier version does not thereby become the court's material. What remains is the deposition, discredited to the extent of the contradiction. The prosecution does not gain the earlier account; it loses the later one.

A statement recorded by a Magistrate is in a different position. It is not a statement to a police officer, is not caught by the bar, and may be used both to contradict under Section 148 and to corroborate under Section 160, having been made before an authority legally competent to investigate the fact.

6. Contradiction Is Not Proof

A previous inconsistent statement, once proved, does two things and not three. It discredits the witness's present testimony on the point, and it establishes that he said something different before. It does not prove the truth of what he said before.

📖 Bharat Singh v. Bhagirathi, AIR 1966 SC 405

Held: Admissions are substantive evidence by themselves, though they are not conclusive proof of the matters admitted. An admission duly proved is admissible irrespective of whether the party making it appeared in the witness box or not, and irrespective of whether he was confronted with the statement.

The purpose of contradicting a witness under the provision corresponding to Section 148 is very much different from the purpose of proving an admission. A previous statement used to contradict a witness does not become substantive evidence and merely serves to throw doubt on his veracity.

Ratio: Contradiction discredits; it does not prove. An admission by a party is substantive evidence; a previous inconsistent statement by a witness is not.

⚠ The distinction that decides how a contradiction is used

Where the person contradicted is a party, his earlier statement may be an admission under Sections 15 to 21 and is then substantive evidence of the fact — a separate route with a separate consequence. Where he is an ordinary witness, the earlier statement discredits and nothing more. A party contradicting an opponent should therefore consider whether the statement is also an admission, because the two produce very different results from the same piece of paper.

7. The Related Provisions

Provision	What it does	Relationship to Section 148
Section 147	Objection where a witness is about to state the contents of a document that ought to be produced	The document-based restriction operating in chief
Section 149	Questions lawful in cross-examination — veracity, position in life, and credit	The heads under which a contradiction is ordinarily relevant
Section 156	Finality rule — where a question relates only to credit and the witness answers, no evidence may be given to contradict him	A limit on contradiction where the matter is collateral
Section 158	Impeaching credit — including by proof of former statements inconsistent with any part of the evidence liable to be contradicted	The provision under which the contradiction is formally used against credit
Section 160	Former statements proved to corroborate later testimony	The mirror image — Section 148 discredits, Section 160 supports
Section 161	Matters provable in connection with a statement relevant under Section 26 or 27	Permits contradiction of a declarant who is not a witness

Section 156 deserves particular attention because it limits what Section 148 achieves. Where a question relates only to the credit of a witness — a collateral matter, not touching the facts in issue — and he answers it, no evidence may be given to contradict him. The answer is final. The two statutory exceptions permit contradiction where he denies a previous conviction put to him, and where he answers falsely a question tending to impeach his impartiality.

The practical line is therefore between a contradiction on a fact in issue, which may always be proved, and a contradiction on a collateral matter going only to credit, which ordinarily may not. A cross-examiner who obtains a denial on a collateral point has got what he is going to get.

8. Practical Points

Question first, confront second. The first limb of the section exists so that the witness commits himself before he sees the writing.
Identify the precise words to be used, and put those. A general reference to the statement does not satisfy the section.
Record the explanation. The witness is entitled to explain, and his explanation is part of the material the court weighs.
Mark the portion so that what was put is identifiable on the record.
Prove it through the recorder where the witness denies it — otherwise the contradiction is a suggestion denied.
Ask whether an omission can stand with the deposition before relying on it — Tahsildar Singh.
Remember that a police statement cannot corroborate, and that the earlier version does not become evidence.
Check Section 156 where the contradiction is on a collateral matter, since the answer may be final.

9. The Position Stated Shortly

A witness may be questioned on a previous written statement without it being shown or proved.
Before it is used to contradict him, his attention must be called to the specific parts relied upon.
The section covers statements made in writing or reduced into writing, which brings recorded oral statements within it.
An omission is a contradiction only where the two versions cannot stand together — Tahsildar Singh.
The procedure has five steps, and proving the marked portion through the recorder is the one most often omitted.
A statement to the police may be used only to contradict — Section 181, BNSS — and never to corroborate.
A contradiction discredits; it does not prove the earlier version — Bharat Singh.
Section 156 makes the answer final where the question relates only to credit, subject to two exceptions.

10. Related Topics and Provisions

Topic or provision	Connection
Questions Lawful in Cross-Examination — Section 149	The heads under which contradiction is relevant
Hostile Witness — Section 157	Where a party contradicts his own witness
Examination of Witnesses — Sections 140 to 168	The chapter as a whole
Examination-in-Chief, Cross-Examination and Re-Examination	The stage at which Section 148 operates
Admissions — Sections 15 to 21	Where the person contradicted is a party and the statement is substantive
Sections 156 and 158, BSA	The finality rule, and impeaching credit by former inconsistent statements
Section 160, BSA	Former statements proved to corroborate
Section 181, BNSS, 2023	Statements to the police, usable only to contradict