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Questions to Test Veracity in Evidence Act

Questions to Test Veracity in Evidence Act


Sections 146–152 of the Indian Evidence Act address the types of questions that can be posed to a witness in order to undermine their credibility by tarnishing their character.

Together with section 132, these sections encompass all possible questions that could be asked of a witness.

Section 146 of the Evidence Act

This section significantly broadens the powers of the cross-examiner beyond those outlined in section 138, offering a wider scope of inquiry.

As long as the cross-examiner limits his questions to evaluating the truthfulness of a witness or determining their social status, there appears to be no restriction on the breadth of questions permitted. 

However, when the cross-examiner engages in the complex and sensitive task of challenging a witness's character, subsequent sections (147–150) provide substantial protection for the witness, encouraging truthfulness and imposing strict limitations on baseless accusations against them. 

"Should any such question pertain to a matter pertinent to the case or proceeding, section 132’s provisions are invoked by section 147.”

If the question pertains only to matters that affect the witness’s credibility by damaging their character, then it is up to the court, under section 148, to determine whether the witness must respond, and the court may also advise the witness that they are not required to answer. 

Furthermore, if a question is posed that could incriminate the witness, they have the right to object on the grounds that it is irrelevant to the issues at hand, or that, even if relevant, it only pertains to their credibility by harming their character.

This extension of cross-examination powers considerably exceeds the confines of section 138, paragraph 2, which limits cross-examination to relevant facts, including the facts at issue.

"To test his veracity”

A witness can be questioned not just about the relevant facts but also regarding all facts that reasonably influence the credibility of his testimony. This process is commonly referred to as cross-examination to credit, as it largely involves facts that relate to the witness's reputation and integrity.

However, such cross-examination is only legitimate if it maintains a reasonable connection to assessing the witness's credibility.

"To discover who he is," etc.

As an initial step in the cross-examination of a witness concerning the facts of the case, it is customary to delve into his relationships with the party who has called him—covering business, social, and family ties; it is also standard to inquire about his sentiments towards the party against whom he has testified.

This is allowed in order to properly contextualise his testimony, highlighting any potential bias favouring one party or prejudice against another.

"Credit… character".

The term "credit" possesses a broad and diverse meaning and must be differentiated from "character," although the latter may encompass the former. "Credit" encompasses beliefs and the estimation of one's reputation, including aspects of good character.

Thus, "creditable" can be interpreted as honourable or trustworthy. The term "character," on the other hand, refers to the moral or ethical qualities of an individual as a member of society.

Amendments Regarding Cross-Examination in Sexual Offence Cases

Proviso Prior to 2013 Amendment:

Before the 2013 amendment, the proviso inserted by the Indian Evidence (Amendment) Act of 2002 (Act 4 of 2003), effective from December 31, 2002, specified that during a prosecution for rape or an attempt to commit rape, it was not permissible to question the prosecutrix about her general immoral character during cross-examination.

2013 Amendment:

Following the recommendations from the Justice JS Verma Committee, established in response to the Nirbhaya rape case in December 2012, significant changes were made through the Criminal Law (Amendment) Act, 2013.

The prior proviso was replaced to refine the legal framework, thus prohibiting questioning that insinuates a woman’s character as part of the defense in rape cases. 

The amendment ensures that in trials for offences under sections 376, 376-A, 376-B, 376-C, 376-D, or 376-E of the Indian Penal Code, or attempts to commit such offences, it is impermissible for the accused to introduce evidence or question the victim regarding her general immoral character or previous sexual experiences to claim her consent or the nature of her consent.

This amendment, along with Section 53-A, establishes a complete prohibition on admitting or considering evidence about the victim's character or past sexual experiences with regard to her consent.

This is to maintain the relevance and admissibility of evidence strictly within the context of the alleged offences.

While Section 53-A includes various offenses like sections 354, 354-A, 354-B, 354-C, and 354-D, the revised Section 146 specifically addresses the offense of rape and its varied classifications.

To promote a gender-neutral justice system, the Supreme Court allowed an appeal by a female witness against the transfer of her trial concerning the production and distribution of pornographic content from one Fast Track Court to another.

This ruling underscored the potential discomfort and embarrassment for all parties involved in recording such sensitive evidence.

2018 Amendment:

Section 146 of the Indian Evidence Act, 1872, saw further modification through the Criminal Law (Amendment) Act, 2018. The proviso was updated to include new sections such as 376A, 376AB, 376B, 376C, 376D, 376DA, and 376DB, expanding the legal purview to address additional specific offences under the Indian Penal Code.

This amendment was part of ongoing efforts to adapt and strengthen the legal provisions concerning the protection of victims in sexual offence cases.

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