16. The statement given by PW-2 before the Police under Section 161 Cr.PC, during investigation were relied by the defence in order to contradict the witness as to her statement in her examination-in-chief. The witness in her earlier statement before the police, had said that the accused Jethnath was working on his adjacent field and he had some altercation with the deceased regarding their boundary in which heated arguments were exchanged between the two. Jethnath, then, raised an alarm which resulted in his sons and relatives coming to the spot, who were all armed with weapons. It is true that this fact of Jethnath working in the field and the altercation she did not state in her examination-in-chief. The High Court thus finds a discrepancy in the statement of PW-2 made under section 161 Cr.PC and her examination-in-chief, which it believes to be sufficient to discredit this witness.
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18. Statement given to police during investigation under Section 161 cannot be read as an “evidence”. It has a limited applicability in a Court of Law as prescribed under Section 162 of the Code of Criminal Procedure (Cr.P.C.).
19. No doubt statement given before police during investigation under Section 161 are “previous statements” under Section 145 of the Evidence Act and therefore can be used to cross examine a witness. But this is only for a limited purpose, to “contradict” such a witness. Even if the defence is successful in contradicting a witness, it would not always mean that the contradiction in her two statements would result in totally discrediting this witness. It is here that we feel that the learned judges of the High Court have gone wrong.
20. The contractions in the two statements may or may not be sufficient to discredit a witness. Section 145 read with Section 155 of the Evidence Act, have to be carefully applied in a given case. One cannot lose sight of the fact that PW-2 Rami is an injured eye witness, and being the wife of the deceased her presence in their agricultural field on the fateful day is natural. Her statement in her examination in chief gives detail of the incident and the precise role assigned to each of the assailants. This witness was put to a lengthy cross examination by the defence. Some discrepancies invariably occur in such cases when we take into account the fact that this witness is a woman who resides in a village and is the wife of a farmer who tills his land and raises crops by his own hands. In other words, they are not big farmers. The rural setting, the degree of articulation of such a witness in a Court of Law are relevant considerations while evaluating the credibility of such a witness. Moreover, the lengthy cross examination of a witness may invariably result in contradictions. But these contradictions are not always sufficient to discredit a witness.
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22. The purpose of the cross examination of a witness in terms of Section 145 and 155 of the Evidence Act is to bring contradictions in the two statements of the witness, in the case at hand, one given to police under Section 161 Cr.PC., and the other given before the court. Even assuming for the sake of argument that there is a difference in the two statements of PW-2 as she evidently does not disclose in her examination-in-chief that Jethnath was also working in the adjacent field and there was altercation between the two, this may discredit the witness only so far as the beginning of the incident; how it started. The fact that the incident happened is not in doubt. The offenders were the accused is also not in doubt. There is no doubt that the incident took place, which resulted in one death and grievous injuries to another. It may not have happened exactly as narrated by PW-2, yet for this discrepancy the entire testimony of PW2 cannot be discarded
PARTY: BIRBAL NATH vs. THE STATE OF RAJASTHAN & ORS. – CRIMINAL APPEAL NO. 1587 OF 2008 – October 30, 2023
https://main.sci.gov.in/supremecourt/2007/32810/32810_2007_2_1501_47838_Judgement_30-Oct-2023.pdf
