Say the ratio out loud before you open Reasoning — recalling it unprompted is exactly what the exam pays for.
Why it matters
Cross-examination as to a previous statement in writing is the workhorse provision of the trial, and it is an exception to a rule the student has just learned. The general rule is that the contents of a writing cannot be used unless the writing itself is produced. This section lets a witness be cross-examined about a previous statement in writing relative to the matter in question without the writing being shown to him — but if it is to be used to contradict him, his attention must first be called to the particular parts of it to be used for that purpose.
The section does two things at once: it allows the credit of the witness to be impeached, and it prevents the previous statement from becoming positive evidence of the facts it contains. Laxman fixes its outer limit.
Facts
The point at issue was the treatment of omissions in a witness's previous statement — matters not mentioned there at all, as distinct from statements inconsistent with the evidence now given.
Held
The section applies only to contradictions. Where there are omissions in the previous statement which are not contradictions, but which throw some doubt on the veracity of what was omitted, the uncertainty may be capable of removal by questions in re-examination.
Reasoning
Step one — separate the two things a previous statement can do. It can contradict, by saying something inconsistent with the testimony; or it can be silent, by not mentioning something the witness now asserts. Only the first is a contradiction.
Step two — the section is mandatory for contradictions. If a contradiction between a witness's evidence and his previous statement is to be used, his attention must be called to that particular part of the previous statement, and the contradiction has to be proved in the appropriate manner. The rule exists so that the witness has the chance to explain.
Step three — an omission is not automatically a contradiction. Silence may sometimes amount to a contradiction, where the matter is such that it could not have been left out if the present account were true. But it does not do so as a matter of course, and where it does not, the section is not the route.
Step four — the remedy for an omission is re-examination. Doubt thrown on the veracity of what was omitted is dealt with by asking the witness about it when he is re-examined, so that the explanation is on record.
Exam use
Use Laxman in any problem that turns on a police statement or earlier deposition being put to a witness. The structure is: identify whether the discrepancy is a contradiction or an omission; if it is a contradiction, apply BSA s. 148 and check whether the witness's attention was drawn to the particular part; if it is an omission, say that the section does not apply and that re-examination is the remedy.
Carry the neighbouring sections in the same answer, because an examiner testing s. 148 usually tests its neighbours. Under BSA s. 149 (IEA s. 146) a witness may in cross-examination be asked questions which tend to test his veracity, to discover who he is and what his position in life is, or to shake his credit by injuring his character, although the answer might criminate him or expose him to a penalty or forfeiture. Under BSA s. 150 (IEA s. 147), if such a question relates to a matter relevant to the suit or proceeding, the compulsion provision applies — the witness must answer even if the answer injures his character, but an answer admitting the allegation cannot be used to subject him to arrest or as evidence against him in any suit or proceeding. Under BSA s. 151 (IEA s. 148), where the question relates to a matter not relevant except so far as it affects credit by injuring character, the Court decides whether the witness shall be compelled to answer.
Laxman does not decide that omissions are irrelevant, and it does not make a previous statement substantive evidence of its contents — that is the point of the section, and it is worth saying expressly.