Scope of Cross-Examination; Lawful and Forbidden Questions (ss. 149–156) — BSA (Law of Evidence) Notes

Scope of Cross-Examination; Lawful and Forbidden Questions (ss. 149–156)

Cross-examination is powerful — but power invites abuse. A cunning advocate can try to destroy an honest witness by dragging up an old, shameful, irrelevant secret, hoping the jury will think less of her. So the same Adhiniyam that hands the advocate the “greatest legal engine” also fits it with brakes: some questions are lawful, some the court may forbid, some it must forbid, and to some the witness’s answer is final. The two classic problems — the pocket-picking victim and the rape victim — are both tests of those brakes.

Cross-examination has a wide scope and a set of limits. Learn the width first, then the four brakes.

A. The width — questions lawful in cross-examination (s. 149)

Under s. 149 [IEA s. 146], a witness under cross-examination may, besides questions on the facts, be asked any question tending:

to test his veracity (truthfulness);
to discover who he is and what his position in life is; or
to shake his credit by injuring his character — even though the answer might criminate him or expose him to a penalty or forfeiture.

So the cross-examiner may legitimately attack the witness’s credit. But s. 149 carries a proviso built into the BSA: in a prosecution for a sexual offence under ss. 64–71 of the Bharatiya Nyaya Sanhita, 2023 (rape and allied offences), where consent is in issue, it is not permissible to put questions to the victim about her general immoral character or previous sexual experience. (This mirrors s. 48 on character evidence — cross-referenced there.)

B. The four brakes — the court’s control

Compulsion, with a shield (s. 150 [IEA s. 147]). If a credit-question relates to a matter relevant to the suit, the witness is compellable to answer it — s. 137 applies, so he cannot refuse merely because the answer incriminates him, but that compelled answer cannot be used against him elsewhere.
The court decides — and disallows remote imputations (s. 151 [IEA s. 148]). Where the question is relevant only to credit, it is the court that decides whether the witness shall be compelled to answer. The court must disallow the question if the imputation is about a matter so remote in time, or of such a character, that even if true it would not affect the witness’s credit now, or if there is a gross disproportion between the imputation and the importance of the evidence.
Indecent or scandalous questions (s. 154 [IEA s. 151]). The court may forbid any question it regards as indecent or scandalous, even if it bears on the case — unless it relates to a fact in issue or to a matter needed to decide a fact in issue.
Questions to insult or annoy (s. 155 [IEA s. 152]). The court shall forbid any question that appears intended to insult or annoy, or which, though proper in itself, is needlessly offensive in form.

C. The answer that is final (s. 156)

Section 156 [IEA s. 153] is the punchline that decides the pocket-picking problem. When a witness answers a question that is relevant only to shaking his credit (injuring his character), no evidence may be led to contradict him — his answer is final. Two exceptions: if he denies a previous conviction, it may be proved; and if he denies facts suggesting he is partial/biased, he may be contradicted.

Put together: the cross-examiner may ask about credit, but the court screens the question for remoteness (s. 151), indecency (s. 154) and insult (s. 155); and where the matter goes only to credit, the answer, once given, cannot be contradicted (s. 156).

🧩 WORKED EXAMPLE — the pocket-picking victim

Facts. A woman prosecutes a man for picking her pocket. In cross-examination the defence wants to ask whether she gave birth to an illegitimate child ten years earlier. Is this a proper question? Can evidence be led if she denies it?

Rule. Credit may be tested (s. 149), but the court must disallow an imputation too remote to affect credit (s. 151) and any indecent/scandalous (s. 154) or insulting (s. 155) question; and where a matter goes only to credit, the answer is final and cannot be contradicted (s. 156).

Apply. An illegitimate birth ten years ago has no bearing on whether her pocket was picked today and does not touch her present credit; it is remote in time and needlessly humiliating. The court should disallow it under ss. 151 and 154–155. Even if allowed and denied, s. 156 makes her answer final — no evidence may be led to contradict it.

Conclusion. It is not a proper question; the court should forbid it, and no contradicting evidence could be given in any event.

Decoy. “Anything may be asked in cross-examination to shake credit” is the trap — the width of s. 149 is fenced by ss. 151, 154–156.

🧩 WORKED EXAMPLE — the rape victim’s past

Facts. A is charged with rape. His advocate wants to cross-examine the victim about her previous sexual experience to suggest she consented. May he?

Rule. The proviso to s. 149 bars questions to a victim of a BNS sexual offence about her general immoral character or previous sexual experience where consent is in issue; s. 48 makes such character evidence irrelevant to consent.

Apply. Consent is the very issue, and the questions go to the victim’s previous sexual experience — precisely what the proviso to s. 149 forbids. The advocate cannot put them.

Conclusion. The questions are impermissible; the court must disallow them. Her past sexual history is not relevant to whether she consented on this occasion.

Note the limit. The bar protects the victim on the issue of consent; it does not stop cross-examination on other genuinely relevant matters (e.g. identification, contradictions in her account).

Section 156, BSA 2023: “When a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him; but, if he answers falsely, he may afterwards be charged with giving false evidence.”

In Simple Terms: You may ask a witness questions just to dent his credibility — but once he answers a purely credit-shaking question, you are stuck with the answer: you cannot bring other evidence to prove he lied (though you could prosecute him for perjury if he did). And the court can block such questions altogether if they are stale, indecent or meant only to humiliate.

flowchart TD
    ROOT["Cross-examination question offered"]:::root
    ROOT --> Q1{"Relevant to a fact in issue?"}
    Q1 -->|"Yes"| REL["Ask freely (subject to ss. 154-155)"]:::leaf
    Q1 -->|"Only to shake credit (s. 149)"| Q2{"Remote in time / disproportionate? (s. 151)<br/>Indecent (s. 154)? Insulting (s. 155)?"}
    Q2 -->|"Yes"| BAR["Court disallows / forbids"]:::diamond
    Q2 -->|"No"| ASK["Question allowed;<br/>witness may be compelled (s. 150)"]:::leaf
    ASK --> FINAL["Answer is FINAL — no contradiction (s. 156)<br/>except prior conviction / bias"]:::diamond
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    classDef diamond fill:#FDECEA,stroke:#B22222,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

State of Punjab vs Gurmit Singh (1996) — the character or previous sexual history of a rape victim is not relevant to consent; humiliating cross-examination of the prosecutrix on her past is impermissible.
A.G. of Hong Kong vs Wong Muk Ping (1987) — the credit of a witness is a legitimate subject of cross-examination, but the court must guard against questions that only degrade without bearing on the issue.
Varkey Joseph vs State of Kerala (1993) — cross-examination and questioning must stay within the statutory limits; the court controls questions that are irrelevant, oppressive or intended merely to prejudice.

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