Vol. 12 · pages 666–670

645LAW OF EVIDENCE 7. What is the effect of a default in the course of the examination of a Witness prescribed by law ? (1) This question can arise only when there is a default in Cross-examination or Re-examination. Until there is Examinationin-Chief, there is no evidence at all in the legal sense of that term. It is only when evidence has been given by the witness in his Examination-in-Chief that this question can arise. The question to be considered reduces itself to the effect of default of Crossexamination or Re-examination on the testimony of a witness. (2) Such default takes place when the witness dies or falls ill, becomes insane or paralytic or disappears after his Examinationin-Chief or before X Examination. (3) The Evidence Act does not in clear terms state in express terms what the effect will be. Whether, for want of Cross-examination or Re-examination of a witness, his testimony given in Examinationin-Chief will cease to be evidence in the legal sense of the word and will have to be cancelled and excluded from the consideration of the Court or whether it will merely affect its evidentiary value, is not stated in the Evidence Act. The question is determined by Judicial interpretation. According to judicial interpretation, two propositions are well established. (1) Such default does not make the evidence inadmissible. It only affects its credibility. (2) Whether it would be credible or incredible, must depend upon the reasons for the default in Cross-examination. There are two ways in which default in X Examination may take place: (i) Where a party could have X Examined but did not do so. (ii) Where a party would have X Examined but could not do so. The question of credibility could arise only in the second case. It could not arise in the first. The Law can give an opportunity and nothing more. If opportunity is not taken, the law holds there is no injury. § Regular Course of Examination 1. The Course of examination of a witness must be regular. 2. A Course of Examination to be regular must be in accordance with the rules laid down in the Evidence Act ?

646 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES 3. The rules for a Regular Course of Examination relate to : (i) Scope of Examination. (ii) Manner of Examination. (iii) Limits of Examination. § Scope of Examination of a witness Under this head, we must deal with matters on which it is permissible to a party to ask questions to a witness. 1. The objects underlying the examination of a witness are chiefly two : (i) to elicit from him what he knows. (ii) to test the truth of what he states. 2. The object of testing the truth of what the witness has stated can be achieved, only if, the Examination of the witness is extended to such questions as relate : (i) to the corroboration and contradiction of the witness. (ii) to the confirmation or impeachment of the credit or character of the witness. 3. Under Scope of examination, we shall therefore be concerned with Rules relating to the following subjects: (i) Rules relating to matters which can or cannot be elicited in the course of the Examination of the witness. (ii) Rules for testing the credibility or incredibility of a witness. (iii) Rules regarding the corroboration or contradiction of matters deposed to by the witness. 1§ Matters which can or cannot be elicited in the course of an Examination 1. This question is dealt with by Sections 138 and 146. The effect of these sections is that there axe two kinds of matters which can be elicited from a witness in the course of his examination. (i) Matters which are relevant to the issue and (ii) Matters which relate to the credibility of the witness. These are the only two matters on which a witness can be examined.

647LAW OF EVIDENCE 2. But every party is not entitled to examine a witness on both these matters (1) With regard to matters which are relevant, both parties are entitled to examine the witness, the party who called him and the adverse party. Indeed the rule is not that the party is entitled to examine the witness on all relevant matters ; the rule is that the examination of a witness must be confined to relevant facts. This rule applies not only to Examination-in-Chief but also to Cross-examination. The only difference is that Crossexamination need not be confined to matters raised in Examination-in-Chief. It may be extended to other matters not raised in Examination-in-Chief. But these other matters must also be relevant matters. Nothing that is irrelevant is permissible either in Examination-in-Chief or Crossexamination. There is therefore no difference in the scope of the Examination-in-Chief or Cross-examination so far as relevant matters are concerned. (Here concludes Page 203 of the M.S. Page 204 is missing. Following text starts from Page 205—ed.) There is agreement on the absence of the particular virtue of truth telling has the necessary effect of shaking the man’s credit and therefore such questions as relate to this aspect of the witness character are always permissible and can be asked in Cross-examination. But there is no general agreement as to the absence of general good character on the veracity of a witness. There are two views on the subject. One is that, bad general character necessarily involves an impairment of the truth telling capacity and therefore to show general moral degeneration is to show an inevitable degeneration in veracity. The other view is, a bad general disposition does not necessarily or commonly involve a lack of veracity and that, therefore, a bad general disposition is of no probative value for the purpose of shaking a witness’s credit. Under the English law, for the purposes of shaking credit by injury to character, general character is excluded and character for veracity only is taken into account.

648 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES § Impeachment of Character otherwise than by Cross-examination Section 155 1. Impeachment of character of a witness is permitted by the production of independent evidence under the provisions of Section 155. 2. This again is a right of the adverse party. So that a party who calls a witness cannot impeach the character of that witness by evidence of other persons. 3. The impeachment may be undertaken in the following ways : (1) by evidence of persons who testify from personal knowledge that the witness is unworthy of credit. (2) by proof that has been bribed or accepted the offer of a bribe or has received other corrupt inducement to give his evidence. (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contracted. (4) by proof in rape that the prosecutrix was of generally immoral character. 3 § Rules regarding corroboration and contradiction of a witness 1. Definition of a Corroborative Evidence—Corroborative evidence simply means evidence which has the effect of confirming the truthfulness of the testimony of a witness. It is evidence which makes the assurance of a witness doubly sure. 2. Kinds of Corroborative Evidence.— The Evidence Act recognises two kinds of Corroborative Evidence. (i) Evidence of facts other than relevant facts. (ii) Additional evidence of. Section 156. § Corroborative Evidence of facts other than relevant facts There are two requirements which must be fulfilled. (i) The Corroborative circumstance of which evidence is being given must have been observed by the witness at or near to the time at which the relevant fact occurred. (ii) The Court must be of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact

649LAW OF EVIDENCE Illus. A and B jointly committed robbery at a certain place. B is charged and A, the accomplice gives evidence against him. In his evidence A describes various incidents unconnected with the robbery which occurred on the way. Prosecution call independent witnesses to prove the truth of the testimony of the accomplice relating to the incidents on the way. The relevant question is whether B committed robbery. The Evidence tendered by the prosecution does not relate to the relevant question. Still it will be allowed as a corroborative evidence if the Court is of opinion that it will help to corroborate the testimony of the accomplice as to robbery. § Corroborative Evidence by way (of)* Additional Evidence of relevant facts Section 157. 1. This can be done by giving evidence of any former statement made by the witness relating to the same fact. This is based upon the principle that he, who is consistent, deserves to be believed. The mere fact of a man, having on a previous occasion made the same assertion, may add little or nothing to the truthfulness. One may persistently adhere to falsehood once uttered, if there is a motive for it so that if consistency was conclusive nothing would be easier for designing and unscrupulous persons to procure the conviction of any innocent man, who might be obnoxious to them, by first committing offences and afterwards making statements to different people and at different times or places implicating the innocent man. R. vs. Malappa, 11 Bom. H. C. R. 196 (198). 2. The previous statement may be a statement made on oath or otherwise and either in ordinary conversation or before some persons who had authority to investigate and question the person who made it. It may be verbal or in writing. There is one distinction between a previous statement made before a person who has authority to investigate and a previous statement made before a person not so authorised. If not made before any *Word inserted—ed.