Impeaching the Credit of a Witness under Section 158 of the Bharatiya Sakshya Adhiniyam, 2023

Section 149 permits a cross-examiner to ask questions injuring a witness's character. Section 158 is the separate and narrower provision that says what he may actually prove. The distinction matters because the finality rule ordinarily forbids evidence to contradict a witness on a collateral matter — and Section 158 enumerates the three exceptions to that silence, together with a restriction on how the first of them may be led.

1. The Provision

Section 158 corresponds to Section 155 of the Indian Evidence Act. The earlier provision contained a fourth clause permitting it to be shown, in a prosecution for rape or attempted rape, that the prosecutrix was of generally immoral character. That clause was omitted in 2003 and has no place in the Adhiniyam, which reinforces the protection now found in Section 48 and in the proviso to Section 149.

2. Asking and Proving

The most useful thing to grasp about Section 158 is how it differs from Section 149, because the two are constantly cited together and do different work.

3. Clause (a) — Evidence of General Unworthiness

A party may call witnesses to credit — persons who testify that, from their knowledge of the witness, they believe him to be unworthy of credit.

Three requirements are contained in the clause.

1. The impeaching witness must have knowledge of the witness. He must be in a position to form a view, and a stranger giving evidence of reputation he has merely heard is not within the clause.
2. He testifies to belief, not to facts. What he gives is his opinion that the witness is unworthy of credit.
3. The belief must relate to credit — to whether the witness is to be believed on oath — and not to whether he is a disagreeable or disreputable person generally.

3.1 The Explanation — the restriction that defines the clause

The Explanation is the operative part of clause (a) in practice, and it imposes an unusual sequence.

The reason for the sequence is practical. If the impeaching witness could give his reasons in chief, the trial would be diverted into an enquiry about incidents in the principal witness's past, each of which would generate its own contest. The Explanation confines him to the bare belief, and leaves it to the cross-examiner to decide whether to open up the reasons — knowing that once he does, the answers are final.

4. Clause (b) — Bribery and Corrupt Inducement

Proof that the witness has been bribed, has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence.

The clause is drafted widely and covers three distinct situations.

• Actual bribery — money or valuable consideration given and received.
• Acceptance of an offer — it is enough that he accepted the offer; the clause does not require the bribe to have been paid.
• Any other corrupt inducement — which extends beyond money to any improper benefit procured in exchange for the evidence.

Two features distinguish this clause from clause (a).

It permits proof of facts, not opinion. Clause (a) admits a belief; clause (b) admits proof that a specific thing occurred.

There is no restriction corresponding to the Explanation. The Explanation is confined by its terms to 'a witness declaring another witness to be unworthy of credit', which is clause (a). Evidence under clause (b) is led in the ordinary way, and may be contradicted in the ordinary way.

The clause overlaps with Exception 2 to Section 156, which permits contradiction where a witness is asked a question tending to impeach his impartiality and answers it by falsely denying the facts suggested. Where the bribery has been put to the witness and denied, both provisions are available.

5. Clause (c) — Former Inconsistent Statements

The most used of the three. Proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.

The closing words carry the whole of the limitation, and they import Section 156. A former statement may be proved under clause (c) only where the evidence it contradicts is itself liable to be contradicted — that is, where the matter is not one relevant solely to credit.

Clause (c) is the substantive provision under which a contradiction is used against credit; Section 148 is the procedural provision governing how it is done. The two must be satisfied together.

Section 148 requires that, before the writing can be proved, the witness's attention be called to those parts of it which are to be used for the purpose of contradicting him. A former statement tendered under clause (c) without that step has not been properly brought on the record.

Two further restrictions apply to the commonest kind of former statement. A statement made to a police officer during investigation is governed by Section 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023 and may be used only to contradict — never to corroborate, and never as substantive evidence. A statement recorded by a Magistrate is outside that bar and may both contradict under Sections 148 and 158(c) and corroborate under Section 160.

6. Impeaching One's Own Witness

The opening words permit impeachment by the adverse party, or, with the consent of the Court, by the party who calls him.

This is the substantive counterpart of Section 157, under which the court may in its discretion permit the calling party to put cross-examination questions. The two are ordinarily sought together and do different things.

A party whose witness has turned should therefore apply for both: leave under Section 157 to question him as in cross-examination, and the consent of the court under Section 158 to impeach his credit by the methods the section permits.

7. What Was Removed

The Indian Evidence Act contained a fourth method of impeachment: in a prosecution for rape or an attempt to ravish, it might be shown that the prosecutrix was of generally immoral character. The clause was omitted in 2003 and is absent from Section 158.

The omission is part of a coherent scheme, and the three provisions that replaced it should be read together.

The three close the question from three directions — relevance, questioning, and impeachment. Together with the holding in Lillu alias Rajesh v. State of Haryana, (2013) 14 SCC 643 that a finding that a survivor is habituated to sexual intercourse is of no consequence, the material is comprehensively excluded.

8. Practical Points

1. Distinguish asking from proving. Section 149 governs the question; Section 158 governs what may be led in evidence.
2. Check Section 156 first. Where the matter is relevant only to credit, the answer is final unless an exception or a clause of Section 158 applies.
3. Under clause (a), do not attempt to lead the reasons in chief. The Explanation forbids it, and an objection is bound to succeed.
4. Decide deliberately whether to cross-examine a witness to credit, since the reasons elicited cannot be contradicted.
5. Under clause (c), comply with Section 148 first — draw attention to the specific words before proving the writing.
6. Where the former statement was made to the police, remember it can only contradict, and never corroborate.
7. To impeach your own witness, seek both Section 157 leave and Section 158 consent.
8. Never seek to impeach a victim of a sexual offence by character. The former clause (4) is gone and three provisions now exclude the material.

9. The Position Stated Shortly

1. Section 158 governs what may be proved to impeach credit, as distinct from Section 149 which governs what may be asked.
2. Three methods — evidence of general unworthiness, proof of bribery or corrupt inducement, and proof of former inconsistent statements.
3. The methods are exceptions to the finality rule in Section 156, and clause (c) expressly imports it by the words 'liable to be contradicted'.
4. Under the Explanation, the impeaching witness may not give his reasons in chief, may be asked them in cross-examination, and his answers cannot be contradicted.
5. Clause (b) covers an accepted offer of a bribe, not merely a bribe paid.
6. Clause (c) operates with Section 148, which requires the witness's attention to be drawn to the specific words before the writing is proved.
7. A party may impeach his own witness with the consent of the Court, and should seek Section 157 leave alongside.
8. The former clause permitting a prosecutrix to be impeached by character was omitted in 2003, and Sections 48 and 149 now exclude the material entirely.

10. Related Topics and Provisions