§ SECTION 149 · BSA 2023 · CHAPTER X — OF EXAMINATION OF WITNESSES

Questions lawful in cross-examination

Testing the witness — within limits. In cross-examination a witness may be asked questions that test his truthfulness, reveal who he is, or shake his credit — even if the answer would incriminate him. But a strict bar protects a sexual-offence victim from questions about her character or sexual history to prove consent.

How to read Section 149

Cross-examination may test a witness’s truthfulness, background and credit — even on self-incriminating matters — but not a sexual-offence victim’s character or sexual history to prove consent.

Three heads

Questions may tend to test his veracity, to discover who he is and his position in life, or to shake his credit by injuring his character.

Even if criminating

These may be asked even though the answer might criminate him or expose him to a penalty or forfeiture.

The victim’s shield

In prosecutions for rape and related offences (BNS §§ 64–71) where consent is in issue, the victim may not be questioned on her character or previous sexual experience to prove consent.

The bare Act

The section in its own words — three heads of lawful cross-examination, and a protective proviso.

Section 149 · verbatim

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:

Proviso.—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.

In short: cross-examination is the great engine for testing a witness, and this section widens the questions that may be put. Beyond the ordinary relevant questions, a witness may be asked anything tending to (a) test his veracity — is he a truthful person; (b) discover who he is and his position in life — his identity and standing; and (c) shake his credit by injuring his character. Crucially, these credit questions may be pressed even though the answer might incriminate the witness or expose him to a penalty or forfeiture — read this with § 137, which compels the answer but gives the witness use immunity for it. The proviso then carves out a vital protection: in a prosecution for rape or a related sexual offence under sections 64 to 71 of the BNS 2023 (or an attempt), where consent is in issue, it is not permissible to lead evidence or cross-examine the victim about her general immoral character or previous sexual experience with anyone, for the purpose of proving consent or its quality. This is the rape-shield rule — a victim’s dignity is not to be attacked through her sexual history.

→ This carries forward IEA 1872 § 146 — the lawful heads of cross-examination, with the rape-shield proviso.

Glossary

test his veracity

Probe whether the witness is truthful.

position in life

Who he is — his standing and circumstances.

shake his credit, by injuring his character

Undermine his credibility by exposing bad character.

although… might criminate him

Such questions are allowed even if the answer is self-incriminating — see § 137 for the use immunity.

sections 64–71, BNS 2023

The sections on rape and related sexual offences.

the rape-shield proviso

Bars questions to the victim about her character or sexual history to prove consent, in such prosecutions.

The picture

Credit may be tested on three heads, even at the cost of self-incrimination — but the victim’s sexual history is off-limits to prove consent.

The section, part by part

Tap a part — the picture-story tells it first; the word-by-word text and example follow.

The three heads (a)-(c)The victim’s shield

three headsTest truthfulness, background and credit — even if self-incriminating

In one lineA witness may be cross-examined to test his veracity, to discover who he is, or to shake his credit by injuring his character — even if the answer would criminate him.

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; orveracity · who he is / position…beyond the ordinary relevant questions, cross may probe his truthfulness and his identity and standing.

(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:→ shake credit, even if the answer criminates himhis credit may be attacked through his character, and these questions stand even though the answer is self-incriminating.

ExampleA witness may be asked about a past conviction or a habit of lying to shake his credit — and he cannot dodge it merely because the honest answer would incriminate him (though § 137 protects that compelled answer).

✗ Not thisThese heads are not a free-for-all. When such questions must be answered, and the court’s discretion to forbid needless character attacks, are governed by the sections that follow (§§ 150–151).

the shieldA sexual-offence victim’s history is off-limits to prove consent

In one lineIn a prosecution for rape or a related offence (BNS §§ 64–71) where consent is in issue, the victim may not be questioned on her character or previous sexual experience to prove consent.

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.the rape-shield — character/history off-limits to prove consentin §§ 64–71 prosecutions on the issue of consent, the victim’s character and sexual history may not be put to her.

ExampleWhere consent is disputed in a rape trial, the defence cannot cross-examine the complainant about her past relationships or reputation to suggest she was likely to consent — that line of questioning is barred.

✗ Not thisThe shield is targeted: it bars character and sexual-history questions to the victim to prove consent. It does not immunise the victim from all cross-examination on relevant facts of the incident.

Connected provisions

§ 148 · back

IEA 1872, § 146

Carried forward — the lawful heads of cross-examination, with the rape-shield proviso.

BSA 2023 § 149 — Questions lawful in cross-examination