Law of Evidence

By Nizam Azeez Sait,

MODULE No. 16

CHARACTER EVIDENCE

This is the 16th Module of the subject ‘Law of Evidence’, covering Sections 46 to 50 under the sub heading ‘Character when relevant’ of the Bharatiya Sakshya Adhiniyam (Sections 52 to 55 of the Evidence Act) in Part II Chapter II dealing with ‘Relevancy of Facts’.

MODULE INDEX

  1. Introduction
  1. Character of Parties in Civil Cases
  1. Character of Parties in Criminal Cases
  1. Evidence of character or previous sexual experience not relevant in certain cases – Section 48
  1. “Character” includes both Reputation and Disposition
  1. Credibility and Character of Witnesses

1. Introduction

Relevancy of character of parties is dealt with in Sections 46 to 50 of the Bharatiya Sakshya Adhiniyam (Sections 52 to 55 of the evidence Act).

Section 46 lays down that in civil cases character of parties are generally irrelevant.

Section 47 states that in criminal proceedings the fact that the person accused is of a good character is relevant.

Section 48 corresponds to Section 53 A of the Evidence Act and  specifies that character of victim not relevant when question of consent is in issue in certain sexual offences.

Section 49 states that the previous bad character of the accused is irrelevant, unless evidence of good character is given.

Section 50, states that in civil cases the fact that the character of any person is such as to affect the amount of damages which he ought to receive is relevant. In the it is stated that the word “character” includes both reputation and disposition.

It may be noted that the character of a witness even if he himself is a party is always material, as affecting his credit. Character of a witness will tell upon his creditworthiness. Questions to impeach the credit by injuring his character are permissible in cross examination under Section 149 of the Bharatiya Sakshya Adhiniyam (Section 146 of the Evidence Act).

2. Character of Parties in Civil Cases

As per Section 46 (Section 52 of the Evidence Act) in civil cases character of parties are generally irrelevant. The section reads as follows:

In civil cases the fact that the character of any person concerned is such as to render probable or improbable any conduct imputed to him, is irrelevant, except in so far as such character appears from facts otherwise relevant.

A bad man can also have a good cause and hence the law has excluded character evidence on grounds of public policy. But if the character forms a fact in issue in a particular case it becomes otherwise relevant. For example, in a case for maintenance by wife, whether she has lost her right in view of her leading a life of promiscuity could be a fact in issue and that way proof of such bad character becomes admissible in such cases.

As per 50 (S.55 of the Evidence Act), in civil cases the fact that the character of any person is such as to affect the amount of damages which he ought to receive is relevant. For example, in the case of defamation the plaintiff’s character may be relevant in deciding the amount of damages to be decreed likewise in a case for breach of promise to marry the defendant may rely on the subsequently revealed bad character of the plaintiff for persuading the court to assess the damages on the lesser side.

3. Character of Parties in Criminal Cases

As per Section 47 (Section 53 of the Evidence Act), in criminal proceedings the fact that the person accused is of a good character is relevant.

In Habeeb Mohammed v. State of Hydrabad, AIR 1954 SC 51, The Supreme Court observed:

“In criminal proceedings a man’s character is often a matter of importance in explaining his conduct and in judging his innocence or criminality. Many acts of an accused person would be suspicious or free from all suspicion when we come to know the character of the person by whom they are done. Even on the question of punishment an accused is allowed to prove general good character.”

In, Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra, AIR 1965 SC 682, one Bhagwan Swarup among others was prosecuted for the offence under S.120B, read with S.409 of the Indian Penal Code.  Two prominent public men of the country the then Prime Minister Jawaharlal Nehru and Shri Sri Prakasa, the erstwhile Governor of Bombay, gave evidence as to the good character of shri Bhagwan Swarup. The Court observed:

“But, in any case, the character evidence is very weak evidence; it cannot outweigh the positive evidence in regard to the guilt of a person. It may be useful in doubtful cases to tilt the balance in favour of the accused or it may also afford a back ground for appreciating his reactions in a given situation. It must give place to acceptable positive evidence. The opinion expressed by the witnesses does credit to the accused, but, in our view, in the face of the positive evidence we have already considered, it cannot turn the scale in his favour.”

4. Evidence of character or previous sexual experience not relevant in certain cases – Section 48

Section 48 of the Bharatiya Sakshya Adhiniyam corresponds to Section 53 A of the Evidence Act which was Inserted by Criminal Law (Amendment) Act, 2013 w.e.f. 03/02/2013 in the Indian Evidence Act). This section prohibits evidence of previous sexual experiences or character of the prosecutrix in cases of rape and outraging of modesty. Section 48 reads as under:

“In a prosecution for an offence under section 64, section 65, section 66, section 67, section 68, section 69, section 70, section 71, section 74, section 75, section 76, section 77 or section 78 of the Bharatiya Nyaya Sanhita, 2023 or for attempt to commit any such offence, where the question of consent is in issue, evidence of the character of the victim or of such person’s previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent.”

(Corresponding offences in the Indian Penal Code are under Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Section 376, Section 376A, Section 376B, Section 376C, Section 376D or Section 376E)

As a corollary to Section 48, a proviso is also added to Section 149 of the Bharatiya Sakshya Adhiniyam (Section 146 of the Evidence), which reads as follows:

Provided that in a prosecution for an offence under section 64, section 65, section 66, section 67, section 68, section 69, section 70 or section 71 of the Bharatiya Nyaya Sanhita, 2023 or for attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.

As per Section 49 of the Bharatiya Sakshya Adhiniyam (S.54 of the Evidence Act) the previous bad character of the accused is irrelevant unless evidence has been given that he has a good character, in which case it becomes relevant.

Explanation 1.–This section does not apply to cases in which the bad character of any person is itself a fact in issue.

Explanation 2.–A previous conviction is relevant as evidence of bad character.]

The Prosecution cannot take the aid of the previous bad character of the accused to establish its case. The prosecution must prove the guilt of the accused beyond reasonable doubt by cogent evidence. Even a bad man can have a good cause. If evidence of bad character is allowed to be proved that could cause prejudice to the accused.

In view of the above the prosecutor cannot call a witness to prove the fact that the accused is a person of bad character and the injured in the case is person of good character. But the accused can tender evidence of his good character. What would be the evidentiary value of good character of an accused would depend upon the facts and circumstances of each case.

5. “Character” includes both Reputation and Disposition

As per Explanation to S.50 of the Bharatiya Sakshya Adhiniyam, “Character” includes both Reputation and Disposition. Section 50 along with its explanation reads as under:

In civil cases, the fact that the character of any person is such as to affect the amount of damages which he ought to receive, is relevant.

Explanation. —In this section and sections 46, 47 and 49, the word “character” includes both reputation and disposition; but, except as provided in section 49, evidence may be given only of general reputation and general disposition, and not of particular acts by which reputation or disposition has been shown.

The word “character” includes both reputation and disposition: but except as provided in Section 49 of the Bharatiya Sakshya Adhiniyam (S.54 of the Evidence Act), evidence may be given only of general reputation and general disposition, and not of particular acts by which reputation or disposition were shown.

In this regard the Supreme Court in Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra observed that, “It is clear from the said provisions that the evidence of general reputation and general disposition is relevant in a criminal proceeding. Under the Indian Evidence Act, unlike in England, evidence can be given both of general character and general disposition. Disposition means the inherent qualities of a person; reputation means the general credit of the person amongst the public. There is a real distinction between reputation and disposition. A man may be reputed to be a good man, but in reality he may have a bad disposition. The value of evidence as regards disposition of a person depends not only upon the witnesses’ perspicacity but also on their opportunities to observe a person as well as the person’s cleverness to hide his real traits. But a disposition of a man may be made up of many traits, some good and some bad, and only evidence in regard to a particular trait with which the witness is familiar would be of some use. Wigmore puts the proposition in the following manner.

“Whether, when admitted, it should be given weight except in a doubtful case, or whether it may suffice of itself to create a doubt, is a mere question of the weight of evidence, with which the result of admissibility have no concern.”

6. Credibility and Character of Witnesses

The character of a witness even if he himself is a party is always material, as affecting his credit. Character of a witness will tell upon his creditworthiness. Questions to impeach the credit by injuring his character are permissible in cross examination under Section 149 of the Bharatiya Sakshya Adhiniyam (Section 146 of the Evidence Act)

Section 149  reads as :

When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend—

(a) to test his veracity; or

(b) to discover who he is and what is his position in life; or

(c) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him, or might expose or tend directly or indirectly to expose him to a penalty or forfeiture:

Provided that in a prosecution for an offence under section 64, section 65, section 66, section 67, section 68, section 69, section 70 or section 71 of the Bharatiya Nyaya Sanhita, 2023 or for attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.

With that we come to the close of this Module on the subject ‘Law of Evidence’. Hope you enjoyed and found it useful.

See you again in another module with another interesting topic on the ‘Law of Evidence.

Option for Payment

The Author has put in a lot of effort in preparing this study material/commentary comprising 28 modules spreading across 1000 pages. If you feel that this material is useful for you, you may send your contributory remuneration to the following phonePe No or to the following Bank Account:

Phonepe No – 9846151718    QR code

Bank Account:

Name – Nizam. A, SB A/c No 30083188312, IFS Code SBIN0003054,

ADB Alleppey Branch, State Bank of India.

Payment is optional and not mandatory

Exercise Questions

  1. ‘Relevancy of character evidence in civil and criminal cases.’ Elucidate with the relevant provisions in the Bharatiya Sakshya Adhiniyam and case laws.
  2. In prosecuting a criminal case, prosecutor called a witness to prove the fact that the accused is a person of bad character and the injured in the case is person of good character.

(a) Is the Court to allow such facts to be proved? Give reasons.

(b) Would it make any difference if the accused calls a witness to prove his good character? Give reasons.