Section 145 Evidence Act: – No court should allow a witness to be contradicted by reference to the previous statement in writing or reduced to writing unless the the procedure set out in section145 of the Evidence Act

1. These appeals are at the instance of a convict accused sentenced to death for the offence of rape and murder of a 10-year old girl named “X” and are directed against a common 2 judgment and order passed by the High Court of Judicature at Patna dated 10.04.2018 in the Death Reference No. 4 of 2017 with Criminal Appeal (DB) No. 358 of 2017 by which the High Court dismissed the Criminal Appeal filed by the appellant convict herein and thereby confirmed the judgment of conviction and sentence of death passed by the Additional Sessions Judge I, Bhagalpur in the Sessions Trial No. 581 of 2015 for the offence punishable under Sections 302 and 376 reply of the Indian Penal Code (for short, ‘IPC’) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’).
2. Before we proceed to give a fair idea as regards the prosecution case, it has to be mentioned that the High Court had before it not only the appeal filed by the accused but also a reference made by the Sessions Court for confirmation of the capital sentence under Section 366 of the Code of Criminal Procedure, 1973 (CrPC). Time and again this Court has pointed out that on a reference for confirmation of the sentence of death, the High Court is under an obligation to proceed in accordance with the provisions of Sections 367 and 368 reply of the CrPC. Under these Sections the High Court must not only see whether the order passed by the Sessions Court is correct but it is under an obligation to examine the entire evidence for itself, apart from and independently of the Sessions Court’s appraisal and assessment of that evidence. From the long line of decisions which have taken this view it would be enough to refer to the decisions in Jumman v. State of Punjab, AIR 1957 SC 469; Rama Shankar Singh @ Ram Shankar Roy v. State of West Bengal, AIR 1962 SC 1239; and Bhupendra Singh v. State of Punjab, AIR 1968 SC 1438.

Analysis

1. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the High Court committed any error in passing the impugned judgment?

Failure to conduct medical examination

1. One another serious flaw in the present case on the part of the investigating officer that has come to our notice is the failure to subject the appellant to medical examination by a medical practitioner. No explanation, much less any reasonable explanation, has been offered for such a serious flaw on the part of the investigating officer.
2. Section 53(1) of the CrPC enables a police officer not below the rank of sub-inspector to request a registered medical practitioner, to make such an examination of the person arrested, as is reasonably necessary to ascertain the facts which may afford such evidence, whenever a person is arrested on a charge of committing an offence of such a nature that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence. Section 53(1) reads as follows:-

“……………..”

1. By Act 25 of 2005, a new Explanation was substituted under Section 53, in the place of the original Explanation. The 27 Explanation so substituted under Section 53 by Act 25 of 2005 reads as follows:-

“Explanation.—In this section and in Sections 53A and 54— (a) “examination” shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case; (b) “registered medical practitioner” means a medical practitioner who possess any medical qualification as defined in clause (h) of Section 2 of the Indian Medical Council Act, 1956 (102 of 1956) and whose name has been entered in a State Medical Register.”

1. Simultaneously with the substitution of a new Explanation under Section 53, Act 25 of 2005 also inserted a new provision i.e. Section 53A. Section 53A reads as follows:

“………………………..”

1. A three-Judge Bench of this Court in Chotkau v. State of Uttar Pradesh, (2023) 6 SCC 742, had the occasion to consider Sections 53, 53A and 164 of the CrPC in details.

“………………………”

1. Thus, medical examination of an accused assumes great importance in cases where the victim of rape is dead and the offence is sought to be established only by circumstantial evidence.

Further statement under section 313 CrPC

1. The further statement of the appellant convict was recorded under Section 313 CrPC. We were shocked to see the manner in which the Trial Court recorded the further statement of the appellant convict under Section 313 CrPC. In all, four questions were put to the appellant convict to enable him to explain the incriminating circumstances pointing towards his complicity in the alleged crime. The questions are as under:-

“(1) Question :- Have you heard the evidence of the witnesses?
Answer :- Yes
(2) Question :- There is evidence against you that on 31.5.15, you took away X to your house by calling her, on pretext of watching TV. What have you got to say?
Answer :- No Sir.
(3) Question :- There is also evidence against you that you escaped after locking your house and later on the lock was broken and then the dead body of X was recovered lying under the wooden cot. What have you got to say in this regard?
Answer :- No Sir.
(4) Question :- It has also come in evidence against you that you in association with Preetam committed murder of X after raping her. What have you got to say?
Answer :- No sir, it is wrong.”

1. However, for the purpose of holding the appellant herein guilty of the alleged crime, the Trial Court looked into the following additional circumstances:-

(a) The circumstance of PW 3 seeing the Appellant lock the grill and the door of his room.
(b) The circumstance that the Appellant gave false information to PW 3 that the victim had already left after watching TV.
(c) The circumstance of the accused refusing to open the door as he did not have the key.
(d) The circumstance of the Appellant giving the keys to the villagers after he was assaulted.
(e) The circumstance of the alleged extra-judicial confession made by the co-accused Pritam Tiwari implicating the Appellant.

1. Indisputably, none of the aforesaid circumstances relied upon by the Trial Court were put to the appellant convict so that he could offer a proper explanation to the same.

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1. Thus, the case of all the witnesses before the police was that it was Pritam Tiwari who had come to the house of the victim on the fateful day and date and had taken the victim along with him to his house to watch TV. All the statements further reveal that it was Pritam Tiwari who was found locking the door when the witnesses enquired with Pritam Tiwari about the whereabouts of the victim.
2. Neither the defence counsel nor the public prosecutor nor the presiding officer of the Trial Court and unfortunately even the High Court thought fit to look into the aforesaid aspect of the matter and try to reach to the truth.

Duty of the defence counsel is to contradict the witness as per section 145 IEA

1. It was the duty of the defence counsel to confront the witnesses with their police statements so as to prove the contradictions in the form of material omissions and bring them on record. We are sorry to say that the learned defence counsel had no idea how to contradict a witness with his or her police statements in accordance with Section 145 of the Evidence Act, 1872 (for short, ‘Evidence Act’).

Public prosecutor can contradict his own witness without declaring hostile

1. The lapse on the part of public prosecutor is also something very unfortunate. The public prosecutor knew that the witnesses were deposing something contrary to what they had stated before the police in their statements recorded under Section 161 of the CrPC. It was his duty to bring to the notice of the witnesses and confront them with the same even without declaring them as hostile.

Presiding officer powers to put question to the witness regarding S.161 Cr.P.C statements

1. The presiding officer of the Trial Court also remained a mute spectator. It was the duty of the presiding officer to put relevant questions to these witnesses in exercise of his powers under Section 165 of the Evidence Act. Section 162 of the CrPC does not prevent a Judge from looking into the record of the police investigation. Being a case of rape and murder and as the evidence was not free from doubt, the Trial Judge ought to have acquainted himself, in the interest of justice, with the important material and also with what the only important witnesses of the prosecution had said during the police investigation. Had he done so, he could without any impropriety have caught the discrepancies between the statements made by these witnesses to the investigating officer and their evidence at the trial, to be brought on the record by himself putting questions to the witnesses under Section 165 of the Evidence Act. There is, in our opinion, nothing in Section 162 CrPC to prevent a Trial Judge, as distinct from the prosecution or the defence, from putting to prosecution witnesses the questions otherwise permissible, if the justice obviously demands such a course. In the present case, we are strongly of the opinion that is what, in the interests of justice, the Trial Judge should have done but he did not look at the record of the police investigation until after the investigating officer had been examined and discharged as a witness. Even at this stage, the Trial Judge could have recalled the officer and other witnesses and questioned them in the manner provided by Section 165 of the Evidence Act. It is regrettable that he did not do so.
2. We take this opportunity of explaining the aforesaid a little more explicitly.

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Suo-Motu power of presiding officer to use S.161 Cr.P.C statement

1. Section 162 CrPC says that no statement made by any person to a police officer in the course of an investigation, whether it be recorded or not, shall be used for the purpose save as provided in the first proviso to the Section. The first proviso says that when any witness, whose statement has been reduced into writing by the police in accordance with the provisions of the CrPC, is called for the prosecution in inquiry or trial the accused with the permission of the court may contradict the witnesses in the manner provided by Section 145 of the Evidence Act. It could be argued that, as the first part of Section 162 prohibits the use of the statement of a witness to a police officer for any purpose, other than that subsequently provided for in the proviso, and as the proviso says that the Court may permit the accused to contradict the witness with his previous statement, the Court has no power to do anything suo motu. In our opinion, this would be a misreading of the Section. The first part of Section 162 says that the statement made by a person to a police officer during investigation cannot be used for any purpose other than that mentioned in the proviso. We lay stress on the word “purpose”. The purpose mentioned in the proviso is the purpose of contradicting the evidence given in favour of the State by a prosecution witness in Court by the use of the previous statement made by such witness to the police officer. The purpose is to discredit the evidence given in favour of the prosecution by a witness for the State. The Section prohibits the use of the statement for any other purpose than this. It does not say that the statement can only be used at the request of the accused. The limitation or restriction imposed in the first part of Section 162 CrPC relates to this purpose for which the statement may be used; it does not relate to the procedure which may be adopted to effect this purpose. The proviso which sets 43 out the limited purpose also mentions the way in which an accused person may contradict the witness with his previous statement made to the Police, but it does not in any way purport to take away the power that lies in the Court to look into any document, that it considers necessary to look into for the ends of justice and to put such questions to a witness as it may consider necessary to elicit the truth. We realise that the proviso would prevent the Court from using statements made by a person to a police officer in the course of investigation for any other purpose than that mentioned in the proviso but it does not in any other way affect the power that lies in the Court to look into documents or put questions to witnesses suo motu. It seems to us to be absurd to suggest that a Judge cannot put a question to a witness which a party may put. In this connection we would refer to the provisions of Section 165 of the Evidence Act, where the necessity of clothing the Judge with very wide powers to put questions to witnesses and to look into documents is recognised and provided for. This is what Section 165 of the Evidence Act says:—

“Section 165. Judge’s power to put questions or order production.─ The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to crossexamine any witness upon any answer given in reply to any such question: …”

No court should allow a witness to be contradicted by reference to the previous statement in writing or reduced to writing or reduced to writing unless the procedure set out in section OR REDUCED TO of the Evidence Act has been followed

1. There is in our opinion nothing in Section 162 of the CrPC which prevents a Trial Judge from looking into the papers of the chargesheet suo motu and himself using the statement of a person examined by the police recorded therein for the purpose of contradicting such person when he gives evidence in favour of the State as a prosecution witness. The Judge may do this or he may make over the recorded statement to the lawyer for the accused so that he may use it for this purpose. We also wish to emphasise that in many sessions cases when an advocate appointed by the Court appears and particularly when a junior advocate, who has not much experience of the procedure of the Court, has been appointed to conduct the defence of an accused person, it is the duty of the Presiding Judge to draw his attention to the statutory provisions of Section 145 of the Evidence Act, as explained in Tara Singh v. State reported in – 1951 SCR 729 and no Court should allow a witness to be contradicted by reference to the previous statement in writing or reduced to writing unless the procedure set out in Section 145 of the Evidence Act has been followed. It is possible that if the attention of the witness is drawn to these portions with reference to which it is proposed to contradict him, he may be able to give a perfectly satisfactory explanation and in that event the portion in the previous statement which would otherwise be contradictory would no longer go to contradict or challenge the testimony of the witness.

Trial judges are advisable to look into the police papers

1. In our opinion, in a case of the present description where the evidence given in a Court implicates persons who are not mentioned in the first information report or police statements, it is always advisable and far more important for the Trial Judge to look into the police papers in order to ascertain whether the persons implicated by witnesses, at the trial had been implicated by them during the investigation.
2. In the aforesaid context, we may refer to and rely on a three-Judge Bench decision in the case of V.K. Mishra v. State of Uttarakhand, (2015) 9 SCC 588, wherein this Court, after due consideration of Section 161 of the CrPC and Section 145 of the Evidence Act, observed as under:-

“……………………”

1. What is important to note in the aforesaid decision of this Court is the principle of law that if the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the Court cannot suo motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act. Therefore, it is of utmost importance to prove all major contradictions in the form of material omissions in accordance with the procedure as established under Section 145 of the Evidence Act and bring them on record. It is the duty of the defence counsel to do so.
2. This Court in Raghunandan v. State of U.P. reported in (1974) 4 SCC 186, it was observed:-(SCC p. 191, para 16)

“16. We are inclined to accept the argument of the appellant that the language of Section 162, Criminal Procedure Code, though wide, is not explicit or specific enough to extend the prohibition to the use of the wide and special powers of the Court to question a witness, expressly and explicitly given by Section 165 of the Indian Evidence Act in order to secure the ends of justice. ….Therefore, we hold that Section 162, Criminal Procedure Code, does not impair the special powers of the Court under Section 165, Indian Evidence Act. …”
(Emphasis supplied)….

1. This Court in Dandu Lakshmi Reddy vs. State of A.P  it was held:-

“20. It must now be remembered that the said procedure can be followed only when a witness is in the box. Barring the above two modes, a statement recorded under Section 161 of the Code can only remain fastened up at all stages of the trial in respect of that offence. In other words, if the court has not put any question to the witness with reference to his statement recorded under Section 161 of the Code, it is impermissible for the court to use that statement later even for drawing any adverse impression regarding the evidence of that witness. What is interdicted by Parliament in direct terms cannot be obviated in any indirect manner.”
(Emphasis supplied)….

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1. The Registry shall forward one copy each of this judgment to all the High Courts with a further request to each of the High Courts to circulate the same in its respective district judiciary.
2. The appeals are disposed of accordingly.

Party

MUNNA PANDEY vs. STATE OF BIHAR – CRIMINAL APPEAL NOS. 1271-1272 OF 2018 – SEPTEMBER 4, 2023 [3 Judges Bench].

https://main.sci.gov.in/supremecourt/2018/25393/25393_2018_14_1501_46705_Judgement_04-Sep-2023.pdf

Munna Pandey

Further study on the subject

How to contradict a witness? – V. K. Mishra & anr. vs. State of Uttarakhand & anr. Cri. Apl. No: 1247 OF 2012 – JULY2 8, 2015 – [2015] 8 S.C.R. 1 [T. S. THAKUR, R. K. AGRAWAL AND R. BANUMATHI, JJ.] – In this judgment it is clearly explained how to contradict a witness with the witness’s previous statement. Also, there is a direction for the Trial judge to see whether the contradictions are coming to the deposition in a right way.

How not to contradict a witness? – Birbal Nath vs. The State of Rajasthan & ors – CRIMINAL APPEAL NO. 1587 OF 2008 – October 30, 2023.

Section 164 Cr.P.C & How to use it? Court cannot read statement recorded under section. 164 Cr.P.C and compare the same with evidence – Utpal Das & anr vs. State of West Bengal – Crl. Apl.No: 800 of 2007 – MAY 07, 2010 = [2010] 6 S.C.R. 495.

Evidentiary value of suggestions: Suggestions put to the witnesses are part of the evidence. Based on that suggestions court can convict the accused – PARTY: Balu Sudam Khalde and anr vs. The State of Maharashtra – Crl. Apl. No: 1910 OF 2010 – March 29, 2023.

When omission amounts to contradition? – Witness omitted to state about the dying declaration given to him/her is a significant omission amounts to contradiction – Subhash vs. State of Haryana – Criminal Appeal No.184 of 2006 – 16-12-2010.

Section 145 – Contradiction and impeaching the witness – Rammi v. State of M.P – AIR 1999 SC 3544

Prosecution how to cross? The prosecutor has to put the contradictions to the Investigation Officer – Thamaraikannan … Appellant -Vs State rep by Inspector of Police, Pallipalayam Police Station, Namakkal District. Crime No.903/2012. … Respondent – Crl.A. No. 655 of 201 – 31.03.2023 – THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR.

Whether the trial court can insist the defence counsel during cross-examination? – Trial court shall not insist the defence counsel to put particular question in particular manner – A.Sebastian vs. The Inspector of Police, Kumapatti Police Station, Virudhunagar District. (Crime No.95 of 2010) – Crl.A(MD)No.262 of 2020 & Crl.MP(MD)No.4046 of 2020 – 04.03.2021.

Whether defence counsel can argue if he does not ask question in cross? – Gangabhavani vs. Rayapati Venkat Reddy & ors – Criminal Appeal No. 84 of 2011 – SEPTEMBER 4, 2013 – [2013] 14 S.C.R. 155.

Resource: Hostile – A detail study – judgments extract.

Article – Whether the Public Prosecutor can contradict his own witness (partly)?

Article – Defence counsels don’t worry I teach you to take defence.