Section 145: Cross-Examination as to Previous Statements in Writing

Overview

Section 145 of the Bhartiya Sakshya Bill, 2023, deals with a common courtroom practice: using a witness’s earlier written statements to test their memory and truthfulness during cross-examination. Essentially, if a witness has previously written something relevant to the case, the opposing lawyer can question them about it, and even use that writing to show inconsistencies in their current testimony.

Key Principles / Ingredients

• Type of Evidence: This section primarily deals with documentary evidence – specifically, written statements made by the witness. It connects this documentary evidence to oral evidence (the witness’s testimony in court).
• Conditions for Admissibility/Relevancy: The written statement must be relevant to the facts in issue. This means it must relate to a matter that is important to the case’s outcome. The statement doesn’t need to be formally ‘admitted’ as evidence first; it’s used *during* cross-examination. Relevancy is key – the court won’t allow questioning about irrelevant prior writings.
• Burden of Proof Implications: This section doesn’t *shift* the burden of proof. The prosecution or plaintiff still has the overall responsibility to prove their case. However, if inconsistencies are revealed through the prior statement, it can weaken the witness’s credibility, making it harder for the party relying on that witness to meet their burden.

How Courts Use this Provision

Judges allow lawyers to show a witness their prior written statement (like a police report, deposition, or even a signed note) during cross-examination. The lawyer can then ask questions like, “Do you remember making this statement?” or “Is this your signature?” If the witness’s current testimony differs from the prior statement, the lawyer can highlight those differences to suggest the witness is unreliable or untruthful. The judge ensures the questioning stays within the scope of the written statement and doesn’t become harassing or irrelevant.

Illustrations and Examples

• Example 1 – Simple Situation: A witness testifies they saw the accused at the scene of a theft at 8 PM. During cross-examination, the lawyer shows the witness a police report they signed earlier, where the witness stated they saw the accused at 8:30 PM. The lawyer can question the witness about this discrepancy.
• Example 2 – More Complex Situation: A witness gives detailed testimony about a contract negotiation. The lawyer presents a draft of the contract, initialed by the witness, containing different terms than those the witness is now claiming were agreed upon. The lawyer can use the draft to question the witness about their recollection of the negotiation, even if the final contract wasn’t signed. The court will consider if the draft is relevant to the disputed terms.

Important Provisos / Explanations

The Bhartiya Sakshya Bill, 2023, doesn’t include specific provisos or explanations attached directly to Section 145. However, the general principles of relevancy and fairness apply. The court retains the discretion to limit cross-examination if it becomes unduly repetitive, harassing, or irrelevant.

Difference from Old Evidence Act (if applicable)

The Bhartiya Sakshya Bill, 2023, largely retains the principles of Section 145 of the Indian Evidence Act, 1872. There are no significant shifts in the core concept of using prior statements to test a witness’s credibility. The new Bill focuses on clarity and simplification of language rather than substantive changes to this provision.

Key Takeaways

• Prior written statements are fair game for cross-examination.
• The statement must be relevant to the case.
• Inconsistencies can damage a witness’s credibility.
• The court controls the scope of questioning.