What types of questions can be asked to witness in cross examination for examining his character?

Section 146 of the Indian Evidence Act appears in the chapter entitled "of the examination of witnesses" and permits certain questions to be put in the cross-examination of a witness. Sections 133 to 145 of the Evidence Act prescribe the order and the manner of the examination of witnesses. Those Sections also deal with the provisions relating to other questions such as when the leading questions should and should not be asked and questions as to the evidence of matters in writing, Section 146 says that when a witness is cross-examined, he may, in addition to the question referred to in the earlier Sections, also be asked questions which tend.

(1) to test his veracity, (2) to discover who he is and what is his position in life, or (3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him, or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.

Clauses (1) and (2) are self-explanatory. Clause (3) of Section 146 permits question in the cross-examination to shake the credit of a witness and for this purpose his character may he injured. In other words, injuring the character of a witness for the purpose of shaking the credit of that witness can be the subject matter of the assault. The assault on the character of a witness permitted by Clause (3) of Section 146 must be directed only for the purpose of shaking the credit of the witness and not for any other purpose, In other words, if the cross-examination was intended to shake the credit of a witness it must naturally be to impugn the credibility of that witness in relation to the matter which is involved and relevant under one or the other provisions of the Evidence Act. It is not permissible to have recourse to Clause (3) of Section 146 to ask all sorts of questions which are not necessary to shake the credibility of that witness.

9. The three types of questions which are permitted Under Section 146 may be relevant under the other provisions of the Evidence Act or they may not be relevant though they are permitted to be asked Under Section 146. In case the question relates to a matter relevant to the suit or the proceeding the provisions of Section 132 shall apply to that question as provided Under Section 147. If, on the other hand, such questions relate to a matter not relevant to the suit or proceeding, powers have been given to Court to decide whether the witness Shall be compelled to answer and prescribe the limits and the manner in which that question can be asked and answer to that question be given. This is provided by Section 148 of the Evidence Act which however is not applicable if the question which is not relevant relates to the shaking of the credibility of the witness by injuring his character as provided in Clause (3) of Section 146. The question aimed at injuring the character of a witness must be only with the object of shaking his credit and therefore limitation on that question is contained in Clause (3) of Section 146 itself. That the permission given under Clause (3) of Section 146 of the Evidence Act cannot be allowed to degenerate into a licence for the purpose of shaking the character of a witness indiscriminately is fairly well-established. In S. Pillay v. G. S. T. Shaikh Thumby, AIR 1940 Rang. 113: 41 Cri LJ 790 the practice of asking questions indiscriminately by having recourse to the provisions of Section 146has been rightly frowned upon. Mosley, J. has commented on a matter of which he regretted to find frequent recurrences in trial in Rangoon Magistrate's Court, The question in issue in that case was whether the trade-mark claimed by the complainant as his own belonged to him, and if so, whether the accused had committed the offences complained of. Possession of tins with a counterfeit trade-mark, or possession of dies of that trade-mark. The complainant was however subjected to a long cross-examination on matters entirely unconnected with the case as to profit and loss and as to stock-in-trade, as to account books and as to loans incurred by him. Even the Income-tax Officer was cited as a witness to give inadmissible evidence as to the complainant's account books. Mosley, J. proceeded to say:--

Section 146, Evidence Act, allows question in cross-examination to shake the credit of the witness by injuring his character. Section 148 of the Act lays down that where a question is only relevant to character, the Court should decide whether the question should be asked, and such questions are improper if the imputation which they convey is of such character that the truth of the imputation would not affect or would only slightly affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies.

He commented that there was an impression prevalent that any witness may be asked any questions at any time as to whether he is a man of substance, and that if the accused can show that the complainant or other witness is in embarrassed circumstances, or is not a man of substance, that necessarily affects the credibility of the witness on any matter to which he deposes.

10. To the same effect are the following observations of the Privy Council in The Bombay Cotton Manufacturing Co., Limited v. Raja Bhadur Shivlal Motilal, 17 Bom LR 455: AIR 1915 PC 1 Cross-examination to credit is necessarily irrelevant to any issue in an action, its relevancy consists in being addressed to the credit or discredit of the witness in the box so as to show that his evidence for or against the relevant issue is untrustworthy ;

In R. B. Chari v. State it has been held that Sections 145, 148 and 155 indicate that the credit of a witness can be said to have been shaken only if it can be shown that he is not a man of veracity, and not that he is of bad moral character. A black-marketeer is not necessarily untruthful nor a non-black-marketeer necessarily a man of veracity. There is, therefore, no reason for rejecting the evidence of a witness on the ground alone that he is a black-marketeer.

It is not necessary to multiply the authorities but from what has been stated above and considering the clear terminology of Sections 146 to 148 it is clear that Clause (3) of Section 146 does not open the gates to unbridled cross-examination of a witness in order to assail his character except in so far as it is necessary to shake his credit in relation to the matter in issue. This proposition is now a matter of text-book knowledge. Sir James Fitzjames Stephen has been quoted in Sarkar on Evidence (on page 1318, 12th Edition) as follows:

I shall not believe, unless and until it is so decided upon solemn agreement, that by the law of England a person who is called to prove a minor fact not really disputed, in a case of little importance, thereby exposes himself to having every transaction in his past life, however private, inquired into by persons who may wish to serve the basest purposes of fraud or revenge by doing so, Suppose for instance, a medical man was to prove the fact that slight wound had been inflicted and been attended to by him would it be lawful under pretence of testing his credit, to compel him to answer upon oath a series of questions as to his private affairs extending over many years and tending to expose transactions of the most delicate and secret kind, in which the fortune and character of other persons might be involved? If this is the law, it should be altered.

 

Published in Criminal Law
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