Section 158 of the Indian Evidence Act and Section 161 BSA: Statements and Credibility
When a statement of a person who cannot ordinarily be examined is admitted under the statutory exceptions, the opposing party is not deprived of the opportunity to challenge its accuracy or the maker's credibility. Section 158 of the Indian Evidence Act, 1872, and its successor, Section 161 of the Bharatiya Sakshya Adhiniyam, 2023, address this issue.
Section 158 of the Indian Evidence Act, 1872: Statutory provision
Heading: What matters may be proved in connection with proved statement relevant under section 32 or 33.
Whenever any statement, relevant under section 32 or 33, is proved, all matters may be proved either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested.
Meaning: If a statement is admitted under Section 32 (statements of persons who cannot be called as witnesses in specified circumstances) or Section 33 (certain evidence given in earlier judicial proceedings), the court may also receive admissible material that supports or contradicts that statement, or strengthens or challenges the credit of its maker, subject to the statutory hypothetical cross-examination test.
Section 161 of the Bharatiya Sakshya Adhiniyam, 2023
Heading: What matters may be proved in connection with proved statement relevant under section 26 or 27.
Whenever any statement, relevant under section 26 or 27, is proved, all matters may be proved either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested.
The operative rule remains substantially the same. The cross-references have changed: Section 26 BSA broadly corresponds to former Section 32, and Section 27 BSA broadly corresponds to former Section 33.
Explanation of key legal expressions
Proved statement
A statement whose existence and admissibility have been established under the applicable evidence law. Admission of a statement does not automatically establish the truth of everything asserted in it.
Corroboration and contradiction
Corroboration means supporting the reliability of the statement through other admissible evidence. Contradiction means presenting admissible material inconsistent with the statement.
Impeaching or confirming credit
To impeach credit is to challenge the maker's credibility; to confirm credit is to support it. The statutory rule permits such evidence only to the extent it could have been proved if the maker had testified and denied the suggested matter during cross-examination.
How the provision operates
- First establish that the underlying statement is relevant and admissible under Section 26 or 27 BSA, or under Sections 32 or 33 of the former Act where applicable.
- Identify whether the additional evidence is offered to contradict, corroborate, impeach credit or confirm credit.
- Apply the statutory test: could that matter have been proved if the maker were a witness and had denied it on cross-examination?
- Apply other relevant rules of admissibility and evaluate the weight of the statement together with the supporting or opposing evidence.
Illustrative example
Suppose a deceased person's statement about the circumstances of death is admitted under Section 26 BSA. Evidence may be offered that is legally admissible to support or contradict that account, or to test the deceased person's credibility, within the limits of Section 161. The provision does not itself make every allegation or unrelated item of evidence admissible.
Old and new law: Section comparison
| Indian Evidence Act, 1872 | Bharatiya Sakshya Adhiniyam, 2023 |
|---|---|
| Section 158: Challenge or support a proved statement | Section 161: Corresponding rule |
| Section 32: Specified statements by unavailable persons | Section 26: Corresponding category |
| Section 33: Evidence from earlier judicial proceedings | Section 27: Corresponding category |
| Section 157: Former statements corroborating testimony | Section 160: Corresponding rule |
Which Act applies after 1 July 2024?
Section 170 BSA repeals the Indian Evidence Act, 1872, while saving specified pending applications, trials, inquiries, investigations, proceedings and appeals. The applicable law therefore depends on the proceeding and the statutory savings rule, not merely on the date when evidence is offered. Check the relevant court's directions and any applicable transitional interpretation.
Official statutory references
- India Code: Bharatiya Sakshya Adhiniyam, 2023 (official PDF) - see Sections 26, 27, 161 and 170.
- Bureau of Police Research and Development: BSA reference and section correspondence.
- India Code official legislation portal - consult the Indian Evidence Act, 1872, and current amendments.
Frequently asked questions
Is Section 158 of the Evidence Act still the current provision?
For matters governed by the BSA, the corresponding provision is Section 161. The former Act remains relevant where the savings provision applies.
Can a deceased person's statement be challenged?
Yes. Where the statement is relevant and proved under the applicable statutory exception, the parties may offer qualifying evidence to contradict or corroborate it or to challenge or confirm the maker's credit.
Does Section 161 itself make a statement admissible?
No. The underlying statement must first be admissible under Section 26 or 27 BSA. Section 161 addresses what additional matters may be proved in relation to that statement.
Disclaimer: This article provides general legal information and is not a substitute for advice about a specific case.