Op EdsOP. ED.

Introduction

Extracting a contradiction or an omission which amounts to a contradiction is an art of the cross-examiner and the method to prove it is a science. Any contradiction if proved in accordance with the provisions of the Evidence Act, 1872 can impeach the credibility of the witness and can help in rejecting the evidence of the prosecution in criminal trials and of the other side in civil trials. Contradictions have to be proved in accordance with the procedure prescribed under the Evidence Act, 1872 otherwise it would have no evidentiary value and would not be admissible. A witness can be contradicted with its previous statements either made by him in writing or reduced into writing by someone.

In criminal trials, statements recorded by the Police during the course of any investigation cannot be used for any purpose during the trial except to contradict the witness as provided under Section 145[1] of the Evidence Act, 1872. The police officer has the power to examine the witnesses who are acquainted with the facts and circumstances of the case as provided under Section 161[2] of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”). The investigating officer will invariably reduce into writing any statement made by the witness before him in accordance with Section 161(3) of the Code of Criminal Procedure, 1973 and the said statements will be a part of the final report (charge-sheet) to be submitted under Section 173 of the Code to the Magistrate concerned. Section 162[3] of the Code provides that such statements made to the police officer by any person is not required to be signed and it further imposes a bar for use of such statements for any other purpose except as provided under the proviso to the said section.

The statements recorded under Section 161(3) of the Code are not substantive piece of evidence and the Court cannot suo motu make use of such statements in case if the testimony of the witness made during the trial is not consistent with the statement made before the police during the course of investigation. The object of Section 162 of the Code is to protect the accused against overzealous police officers and untruthful witness.  In almost every other trial the witnesses are either turning hostile or are giving exaggerated testimonies. Sometimes clever witness in their examination-in-chief conforms to what they have stated earlier to the police, but in the cross-examination introduces statements in a subtle way contradicting in effect what they stated in the examination-in-chief. In either case, for the defence as well as for the prosecution it becomes important to bring the earlier part of the statement which is inconsistent with the deposition, on the record of the case as otherwise it cannot be used for any purpose and the court will not be in a position to refer to it.

If the witness turns hostile and resiles from his earlier statement made before the police, then it becomes important for the Public Prosecutor to bring that part of the earlier statement on record of the trial and the manner is provided under Section 145 of the Evidence Act, 1872 read with the proviso to Section 162 of the Code. If the earlier part of the statement where the witness has supported the case of the prosecution is not brought on record and if the contradiction between the testimony in court and the earlier statement is not proved then the said statement though supporting the case of the prosecution would not be used for any purpose by the court. How much evidentiary value to attach to the earlier statement is for the court to decide on the sound principles of appreciation of evidence however it is foremost important to bring it on record. Similarly, if there are material improvements or contradictions or omissions which amount to contradictions found in the deposition then it would be necessary for the defence to bring the earlier statement made before the police on record and to further prove it in accordance with the manner prescribed under Section 145 of the Evidence Act, 1872. It is only after such contradictions are brought on record and thereafter proved the question would come of evaluating the testimony. Therefore, it becomes very important for both the prosecution as well as the defence to first bring the contradiction on the record and thereafter to prove it in accordance with the manner prescribed.

The Supreme Court while hearing a criminal appeal noticed certain inadequacies and deficiencies in recording of evidence during the criminal trial across the country. To deal with such deficiencies the Supreme Court issued suo motu[4] notice to Registrar General of all the High Courts, Chief Secretaries, Advocate General, etc. of all State/Union Territories to arrive at uniform best practices across the country. One of such inadequacy and deficiency which the Supreme Court noticed was regarding ‘Marking of Contradictions’. The Supreme Court in its order observed that “A healthy practice of marking the contradictions/omissions properly does not appear to exist in several States”.

 Divan, J. in his judgment in the matter of State of Gujarat v. Hiralal Devji[5] emphasised on the duty of the Presiding Judge to draw the attention of the advocate to the provisions of the Evidence Act so that the contradiction is proved in accordance with the provisions of law.  Divan, J. observed:

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…”

Let us examine what is contradiction and when can an omission amount to a contradiction and how it can be proved during the trial.

Contradiction: Meaning and Purpose

The word ‘contradict’ according to the Oxford Dictionary means “to affirm to the contrary; to be directly opposed to; to go counter to; to deny categorically”. The word contradiction is not defined under the Evidence Act or under the Code. Contradiction means “A state or condition of opposition in things compared; variance, inconsistency, contrariety”. The Cambridge Dictionary defines the word contradiction as “the act of saying something that is opposite or very different in meaning to something else what is said earlier”. To illustrate:

‘X’ states in the witness box that ‘Y’ stabbed ‘Z’;

But before the Police ‘X’ stated that ‘A’ stabbed ‘Z’.

This is a pure and simple case of contradictory statements. Contradictions have to be brought on record during cross-examination of the witness.

The purpose of cross-examination is three-fold, one is to test the veracity of the statement made by a witness in his examination-in-chief, second is to shake/impeach his credit[6] and third is to elicit from that witness any relevant facts which may be favorable to the case for the cross-examiner. Right to cross- examine the witness by the accused is the cardinal rule of a fair trial which is a fundamental right of every accused, similarly it is the duty of the court trying the accused to satisfy itself regarding the reliability/credibility of the witness. In order to impeach the credibility of the witness one of the methods provided under Section 155 of the Evidence Act is to bring out the proof of former statement inconsistent with any part of his evidence in court, which is liable to be contradicted. So, in order to impeach the credibility of the witness, if there is any inconsistency in the deposition with the earlier statement then the proof of the former statement has to be brought on record and thereafter it has to be proved.

In some cases, an omission to state a fact or circumstance in the statement under Section 161(3) of the Code, may amount to contradiction during the deposition in court, if the omission appears to be significant and otherwise relevant. The condition for the omission to amount to contradiction is that what is stated in deposition becomes irreconcilable with what is omitted and impliedly negatives its existence.

Let us understand when omission would amount to contradiction by an example: ‘X’ made a statement before the police under Section 161(3) of the Code, that he saw ‘A’ stabbing ‘C’ to death;

In the witness box, he states that he saw ‘A’ and ‘B’ stabbing ‘C’ to death.

‘X’ omitted to mention that he saw ‘A’ and ‘B’ both stab ‘C’ to death.

Not mentioning the name of ‘B’ in the statement before the Police amount to significant and relevant omission as it is not comprehensible that a witness who saw two persons stab ‘C’ would mention in the statement before the Police that he saw only one person stab ‘C’ to death and therefore in such situations omissions can also amount to contradiction and will have to be proved in the manner prescribed. If the statement before the Police does not come on record of the trial and if the court is not in a position to refer to it then it would lead to a miscarriage of justice. If the statement before the Police is brought on record and thereafter proved in accordance with the procedure then the court will be in a position to imply that B was not present. Therefore, whenever there is an inherent repugnancy between the testimony and the statement before the Police, then even an omission can become a contradiction.

Let us take an example of inherent repugnancy to understand the concept. If a witness makes a statement before the Police and the officer records the statement under Section 161(3) of the Code wherein:

The witness mentions that he saw ‘X’ shooting ‘Y’ dead with a gun,

During the trial, he deposes that he saw ‘Z’ stabbing ‘Y’ dead;

Both statements cannot stand together and are inherently repugnant. Third category of omissions resulting into contradiction would be where a negative aspect of a positive recital is found in the statement.

Example of this third category would be when in the recorded statement under Section 161(3);

The witness states that a dark man stabbed ‘X’,

whereas in the witness box the witness deposes that a fair man stabbed ‘X’.

As explained in the judgment of Tahsildar Singh v. State of U.P.[7], sometimes a positive statement may have a negative aspect and a negative one a positive aspect. When the witness says that ‘a man is dark’ which is a positive statement, it also means that ‘the man is not fair’, which is a negative aspect of the statement and which is implied in the positive statement. These are the three categories of omissions which may amount to contradiction and will have to be proved during the trial.

The benefit of proving contradictions correctly can be explained by demonstrating the judgment of State of Madhya Pradesh v. Banshilal Behari[8], it was a case of a double murder with 3 eyewitnesses, where the trial court sentenced the accused to death and the High Court acquitted the accused as the credibility of the witnesses were impeached by proving the contradictions on the record. The eyewitness during his deposition in the witness box stated as under:

“that when he went inside the house along with Mst. Bhanwari Bai, he saw the accused, standing there with his sword embedded in the neck of Banwari.”

The High Court disbelieved this fact because the witness in his statement to the Police made no mention that he saw the accused, standing there with his sword thrust in the neck of Banwari.

The High Court observed reagrding omission and how it was a contradiction in the following words:

“He was confronted with this omission under Section 145 of the Evidence Act, but he could offer no satisfactory explanation. Wigmore in his Treatise of Evidence has observed that failure to assert: a fact when it would have been natural to assert it, amounts in effect to an assertion of the non-existence of the fact. In such cases an omission amounts to contradiction or inconsistency. Now it is most natural that if this witness had seen the accused in a position to which he testified before the Additional Sessions Judge; he would have certainly stated it before the Police. This omission amounts to contradiction.”

The Court further goes on to explain the effect that if the inconsistency is found in the evidence then his entire evidence will have to be scrutinised carefully and if found unsatisfactory then his entire evidence will have to be rejected. The Court observes as under:

“It is true that the Courts in India have been reluctant to act on the maxim “falsus in uno falsus omnibus”, yet the disregard of the maxim cannot be pushed too far. The whole statement should be scrutinised and if found unsatisfactory, it must be rejected. I venture to suggest that where it is proved that a witness has deliberately lied in material particulars, his evidence will have to be looked upon with considerable suspicion.”

Method of marking previous inconsistent statements to prove contradiction 

Under the rule of best evidence in common law, the question of weight comes after the question of admissibility and the question of admissibility comes after the question of relevancy. The first requirement is that the evidence to be introduced during the trial should be relevant to the charge, second the oral, as well as documentary evidence, should be admissible under the best evidence rule and then comes the question of appreciation or giving weight to such evidence.

For bringing the contradiction on record, the cross-examiner can ask a witness about any previous inconsistent statements he may have made, but if the statement was to be brought on record during trial, the witness must be shown the document before he could be asked whether he had said something different on another occasion[9]. This common law principle requiring the cross-examiner to confront a witness with the contents of a prior inconsistent statement before the introduction of extrinsic statement was laid down in the famous case of Queen Carolines in the year 1820. The witness must be confronted with the time, place, persons present and the substance of an impeaching statement before extrinsic evidence could be admitted as proof that the statement had been made. The Rule in Queen Carolines caselaid down the requirement that a cross-examiner, prior to questioning the witness about his own prior statement in writing, must first show it to the witness.”[10] The same rule finds place in Section 145 of the Evidence Act, 1872. The rule is based on the principle of fair-play and is essential for proving the contradiction regarding any inconsistency in the previous statements.

In the judgment of Bal Gangadhar Tilak v.  Sriniwas Pandit[11], the Bombay High Court provides the purpose of bringing the attention of the witness before using the documents or earlier statements to impeach his credit. The High Court observes that On general principles it would appear to be sound that if a witness is under cross-examination on oath he should be given the opportunity, if documents are to be used against him, to tender his explanation and to clear up the particular point of ambiguity or dispute. This is a general, salutary, and intelligible rule, and where a witness’s reputation and character are at stake the duty of enforcing this rule would appear to be singularly clear.”

Let us understand the true meaning and purport of Section 162 of the Code for making use of the statements recorded by the Police as evidence during trial. It is in essence allowing the use of statements recorded by the Police during the course of investigation to be used in evidence for a limited purpose. The first proviso to Section 162(1) makes an exception to the use of the statements recorded under Section 161(3), but it is an exception most jealously circumscribed under the proviso itself. “Any part of his statement” which has been reduced to writing may in certain limited circumstances be used to contradict the witness who made it. The High Court of Patna in the judgment of Badri Chaudhary v. Emperor [12], while interpreting the amendment to Section 162 of the Code of 1898 (which is almost identical to Section 162 CrPC, 1973) stated the limitation regarding the exception to the use of the statements in evidence. It held as under:

“The limitations are strict: (1) only the statement of a prosecution witness can be used; and (2) only if it has been reduced to writing; (3) only a part of the statement recorded can be used; (4) such part must be duly proved; (5) it must be a contradiction of the evidence of the witness in Court; (6) it must be used as provided in Section 145, Evidence Act, that is, it can only he used after the attention of the witness has been drawn to it or to those parts of it which it is intended to use for the purpose of contradiction,…”

Statements before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of the Evidence Act that is by drawing attention to the parts intended for contradiction.  Under Section 145 of the Evidence Act, the attention of the witness has to be called to those parts of it which are to be used to contradict him. The Supreme Court in the judgment of V. R. Mishra  v. State of Uttarakhand [13] at para 19 has reiterated the procedure for bringing the contradiction on record of the trial. The procedure prescribed is as under:

Let us first understand the procedure for proving a pure and simple contradiction and then we will examine how to prove an omission which amounts to contradiction.

Once the examination-in-chief is completed by the Public Prosecutor and the witness deposes something contradictory to the previous statement then during cross-examination by the defence:

  • His attention has to be drawn to that part of the statement made before the Police which contradicts his statement in the witness box.
  • The attention of the witness drawn to that part must reflect in the cross-examination.
  • While recording the deposition of the witness, it becomes the duty of the trial court to ensure that the part of the police statement/case diary with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination.
  • Ideally the relevant portions of case diary/statement used for contradicting a witness must be extracted fully in the deposition. If the same is cumbersome at least the opening and closing words of the contradiction in the case diary statement must be referred to in the deposition and marked separately as a prosecution/defence exhibit.
  • If he admits to have made the previous statement then no further proof is necessary to prove the contradiction. The contradiction is brought on record and it is proved. It can be read while appreciating the evidence.
  • But if the witness after going through the earlier statement denies having made that part of the statement then it must be mentioned in the deposition.
  • By this process the contradiction is merely brought on record, but it is yet to be proved.
  • Thereafter when the investigating officer or the officer who recorded the said statement is examined in the court, his attention should be drawn to the passage marked for contradiction.
  • After going through the police statement if he says that the witness had made that statement then the contradiction can be said to have been proved.
  • 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 accordance with Section 145 of the Evidence Act.

During the examination-in-chief, if the witness does not support the case of the prosecution and ultimately, he is declared hostile by the court then with the permission of the court the Public Prosecutor will have to cross-examine the witness. The method of proving the contradiction and bringing the earlier statement on the record would be the same as mentioned above. If the Public Prosecutor does not confront the witness with earlier statements the contradiction would not be on record and he will not be in a position to prove it through the investigating officer. This has been held by 4-Judge Bench judgment of the Supreme Court in Tara Singh v. State[14] wherein it is held as under:

“….if the prosecution wishes to go further and use the previous testimony to the contrary as substantive evidence, then it must in my opinion, confront the witness with those parts of it which are to be used for the purpose of contradicting him. Then only can the matter be brought in as substantive evidence under Section 288. As two of the eyewitnesses were not confronted in the manner required by Section 145, their statements will have to be ruled out, and if that is done, the material on which the conviction is based is considerably weakened.”

Further, the Supreme Court in the judgment of State of Rajasthan v. Kartar Singh[15] has held that if the witness resiles completely from its earlier statement than, if the entire previous statement is read over to the witness and then confronted with the said statement that would be in compliance with Section 145 of the Evidence Act. The Supreme Court observed that it would have been pointless to draw the witness attention to each sentence and ask his explanation because the explanation would have been the same that it was false and given under pressure of police. However, the earlier statement will have to be read over in order to comply with the requirement of Section 145 of the Evidence Act. If a clever witness faithfully conforms to what he stated earlier to the police or in the committing court, but in the cross-examination introduces statements in a subtle way contradicting in effect what he stated in the examination-in-chief then such witness can be cross-examined by the prosecution as held by the Supreme Court in the judgment of Dahyabhai Chhaganbhai Thakkar  v. State of Gujarat[16].

Method of marking previous inconsistent statements to prove omission which amounts to contradiction  

Omissions may have vital bearing upon the truth of the story given. But to prove the omission there is a slightly different technique. In the case of omission of the most vital and relevant aspect the contradiction is implied and is not so direct. In order to confront with the earlier statement there is nothing in the earlier statement which is contradictory as the witness might have improved his version during the testimony. So first the contradiction will have to be brought by asking questions in cross-examination which are permitted under Section 162 of the Code. Let us understand this by an illustration which is explained in the landmark judgment of Tahsildar Singh (supra):

  • ‘X’ makes a statement before the Police that “When I arrived at the scene I saw ‘A’ running away, chased by ‘B’ and caught by ‘C’”.
  • In the witness box ‘X’ says that “When I arrived at the scene, I saw A take out a dagger from his pocket, stab ‘D’ in his chest and run away. He was chased by ‘B’ and caught by ‘C’.

Here is an example of omission of two facts in the statement before the Police:

  • ‘A’ takes out a dagger from his pocket;
  • ‘A’ stabbed ‘D’ in his chest;

The said omissions are vital. It is not believable that the witness who says ‘A’ took out a dagger and stabbed D in the chest would not mention such a crucial and important fact. Further, it is also not possible that a police officer investigating the case would miss out on such a crucial piece of information. Therefore, it can be implied that the witness has improved his version and is not giving out the correct facts and therefore the omission becomes a contradiction.

However, in order to bring the contradiction on record first, the omission will have to be converted into a contradiction by asking the question in the cross-examination which will bring out the contradiction. The cross-examination in the case of omission becomes very important and it should be aimed at bringing out the contradiction between the statements. Let us understand what kind of questions would be admissible and what would not be admissible.

In the above case the cross-examiner may ask:

  1. I put it to you that when you arrived at the scene ‘A’ was already running away and you did not actually see him stab ‘D’ as you have deposed?
  2. No, I saw both the events.
  3. If that is so, why is your statement to the police silent as to stabbing?
  4. I stated both the facts to the Police.
  5. I am showing you from the original record your statement before the police where you have mentioned “When I arrived at the scene I saw ‘A’ running away, chased by ‘B’ and caught by ‘C’”
  6. I had stated but the Police did not write accordingly.

So the first thing to do is to convert the omission by putting a question which will bring out the contradiction. What is required is to take the statement of the police as it is and establish a contradiction between that statement and the evidence in court. If the cross-examination does anything else but to bring out the contradiction then it is barred under Section 162 of the Code and such questions will not be allowed to be put to the witness. Questions which cannot be asked are as follows:

  1. What did you state to the Police?
  2. Did you state to the police that A stabbed D?

Such questions cannot be asked as they attempt to get a fresh version of the witness and not a contradiction. Contradiction under Section 162 of the Code should be between what a witness asserted in the witness box and what he stated before the police officer. After bringing the contradiction on record the next step is to ask the Investigating officer or the officer who recorded the statement of the witness under Section 161(3) the question regarding whether he had given such a statement before the officer. If the officer states that the witness had not mentioned the said facts then the omission is proved during the trial.

Conclusion

The importance of proving contradiction in accordance with the manner prescribed is absolutely important and very crucial for practicing in the trial courts. If contradictions are proved as per the procedure then it can have a considerable impact on the trial. The illustrations given above are to highlight the best practice to prove contradictions. However, cross-examinations may vary from case to case and on the facts and circumstances as well as on counsel to counsel as well as on statements to statements.


*Jeet J Bhatt is a practicing Advocate at Gujarat High Court. He can be reached at jeetbhatt@gmail.com

[1] Section 145. Cross-examination as to previous statements in writing.— A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

[2]Section 161. Examination of witnesses by police.– (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.

[3] Section 162. Statements to police not to be signed: Use of statements in evidence.– (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872 ); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act. Explanation.- An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.

[4]In Re: To issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials, 2017 SCC OnLine SC 298.

[5] 1963 SCC OnLine Guj 32

[6]Section 146 of the Evidence Act, 1872

[7] 1959 Supp (2) SCR 875

[8]  1957 SCC OnLine MP 83

[9]Queen Carolines Case, (1820) 2 Brod& Bing 287,

[10]United States v. Cottrell, 1986 U.S Dist. LEXIS 19272 (E.D. Pa.Oct, 9, 1986)

[11] 1915 SCC OnLine PC 16

[12] 1925 SCC OnLine Pat 148

[13] (2015) 9 SCC 588

[14] 1951 SCR 729

[15](1970) 2 SCC 61

[16] (1964) 7 SCR 361

Case BriefsHigh Courts

Delhi High Court: Brijesh Sethi, J., allowed a criminal writ petition filed under Article 226 of the Constitution read with Section 482 CrPC wherein the petitioner-accused had prayed that he be allowed to confront the Prosecution Witness — Constable Ajit Singh — with his statement recorded under Section 161 CrPC with reference to the answer given by him in his cross-examination: i.e., “diary entry was recorded of my departure from police station on that day. I had instructed the DD Writer to record the entry of my departure. I do not know if the IO has seized the said diary entry.”

The trial court had declined such permission to the petitioner stating that this was a fact that had come across in answer to a question put in the cross-examination and was not a fact deposed to by the witness in his examination-in-chief and, therefore, cannot be confronted as an improvement.

Akshay Bhandari and Digvijay Singh, Advocates, represented the petitioner. Per contra, Sanjay Lao, ASC, with Karan Jeet Rai Sharma, Advocate, opposed the petition on behalf of the State.

Considering the rival submissions, the High Court observed that: “As per section 145 of the Indian Evidence Act, a witness can be contradicted with his previous statement. It is also a settled law that omission to mention the fact in the previous statement is contradiction and witness needs to be confronted with the said facts. Section 162 of the Code of Criminal Procedure contemplates that the previous statement recorded 161 Code of Criminal Procedure has to be confronted to the witness in accordance with Section 145 of the Indian Evidence Act. In these circumstances, if the petitioner is not allowed to confront the witness with his previous statement, prejudice will be caused to him and he will not be able to take advantage of the said contradiction.”

in such circumstances and in the interest of justice, the Court allowed the petition and directed the trial court to permit the petitioner to confront the witness concerned as prayed for. [Deepak Kumar Chaudhary v. State, 2019 SCC OnLine Del 11321, decided on 07-11-2019]

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K. Agrawal, J., allowed a second appeal against the order of the trial court as well as the First Appellate Court whereby the suit brought by the plaintiffs (respondents herein) for declaration of title, permanent injunction, partition and possession of the suit property was decreed.

It is pertinent to note that during the pendency of the said suit, affidavit-evidence under Order 18 Rule 4 CPC (recording of evidence) was filed by the plaintiffs. On two subsequent dates when the matter was posted, the plaintiff — Kunti Bai — was partly cross-examined. However, after that, she could not appear before the trial court though the matter was fixed for evidence from time to time. Ultimately, her opportunity to lead evidence was closed and thereafter, the suit was decreed in favour of the plaintiffs.

The question for consideration of the High Court was whether the affidavit-evidence of the Kunti Bai, which was not subjected to cross-examination, could be said to be “evidence” within the meaning of Section 3 (interpretation clause) of the Evidence Act.

The Court was of the opinion that a careful perusal of Section 3 would show that the affidavit is not included in the definition of “evidence”, and can be used only if the Court permits it for sufficient reasons. An affidavit can be termed to be an “evidence” within the ambit of Section 3 only in those cases where the same is filed at the instance or under the direction of the Court or law specifically permits for proof of anything by affidavit. Thus, the filing of an affidavit or one’s own statement, in one’s own favour, cannot be regarded as sufficient evidence for any Court.

Reliance was placed on Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465, wherein the Supreme Court had held that affidavit can be relied upon when the deponent is available for cross-examination in terms of Order 18 Rule 4 CPC. The High Court held that: “Thus, it is now well settled that affidavit is not evidence within the meaning of Section 3 of the Evidence Act unless an opportunity to effectively cross-examine to the person(s) examined is given to another side as provided in Order 18 Rule 4(2) of the CPC.”

In the instant case, since the defendants did not get a proper opportunity to cross-examine Kunti Bai, the court held that the affidavit filed by her under Order 18 Rule 4 remained an affidavit and did not turn into evidence. In such view of the matter, the impugned order was set aside and the matter was remanded back to the trial court to give an opportunity to the defendants to cross-examine Kunti Bai and other prosecution witnesses. [Premlal v. Kunti Bai, 2019 SCC OnLine Chh 107, decided on 11-09-2019]

Case BriefsHigh Courts

Karnataka High Court: B.A. Patil, J. while allowing the appeal set aside the Judgment of the trial court with a direction to recall the witnesses who have not been cross-examined.

Asif Hussain, the appellant/accused in the instant case preferred this appeal against the judgment and order of his conviction and sentence for the offence punishable under Section 397 of Penal Code, 1860 passed by the Additional City Civil and Sessions Judge, Bengaluru City.

Sirajuddin Ahmed, Counsel for the appellant submitted that the trial court did not give full opportunity to the accused to cross-examine all the witnesses and passed the impugned order erroneously. 

In consonance to the Counsel for the appellant, M. Divakar Maddur, High Court Government Pleader submitted that the evidence of PW7 was not fully chief examined and for this no reason was assigned. 

The Court after analyzing the evidences given in the trial court observed that witnesses were examined. But, after the Public Prosecutor was done with the examination-in-chief, counsel for the accused took time for preparation. However, the court below rejected the prayer without any justifiable reasons and took that there is no cross examination. Moreover, PW7 was examined-in-chief in part. The cross examination of PWs 9 and 10 was not even recorded. The material witnesses who were examined before the Court were also not cross-examined. Thus, it was clear that principles of natural justice were not followed. 

The Court remitted back the matter and directed the trial court to expeditiously dispose of the case.[Asif Hussain v. State, 2019 SCC OnLine Kar 1600, decided on 04-09-2019]

Case BriefsHigh Courts

Delhi High Court: In view of the failure of justice on account of lack of effective cross-examination of prosecution witnesses, Sanjeev Sachdeva, J. quashed the trial court’s order convicting and sentencing the accused (appellant) for offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012.

The appellant had challenged the order of the trial court whereby he was convicted and sentenced under POCSO Act. He contended that the manner in which the trial was conducted showed that the principles of natural justice were violated and he was declined a fair opportunity of being defended.

The High Court found that some prosecution witnesses were not cross-examined and for others, there was very sketchy cross-examination. It was noted that the manner in which cross-examination was conducted on part of the accused by the amicus curiae appointed by the trial court clearly showed that he made no serious efforts to defend the accused. It was observed: “If the Amicus Curiae does not or is not in a position to effectively provide assistance to an accused, the Trial Court is obliged to correct the situation. Even the trial court failed to take any remedial steps. The manner in which the cross-examination has been conducted has clearly led to failure of justice.” Holding it to be a clear case of failure of justice, the Court quashed the impugned order and remanded the matter to the Court of Additional Sessions Judge for re-trial from the stage of cross-examination of prosecution witnesses.

Before departing with the case, the High Court recorded appreciation for the assistance rendered by Adit S. Pujari, Advocate appearing on behalf of Delhi High Court Legal Services Committee and also by Meenakshi Dahiya, Additional Public Prosecutor for the State. [Dev Kumar Yadav v. State (NCT of Delhi), 2019 SCC OnLine Del 8485, decided on 10-05-2019]

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Delhi High Court: Sunil Gaur, J., while putting petitioners to terms, allowed their application filed under Section 311 CrPC to recall three prosecution witnesses for cross-examination.

Earlier, the trial court had dismissed the petitioner’s application for recall of prosecution witnesses. Dinesh Sah and Rajeev Rajan, Advocates appearing for petitioners submitted that the witnesses sought to be recalled were material witnesses who could not be cross-examined due to the negligence of the previous counsel. It was submitted that petitioners may be put to terms for their negligence, however, recalling of prosecution witnesses was essential. Per contra, Izhar Ahmad, Additional Public Prosecutor supported the trial court’s order.

On perusal of the record, the High Court found that the petitioners did not exercise due diligence in defending themselves before the trial court and the blame was sought to be put on the previous counsel, whose name was not disclosed. Be that as it may, the Court was of the view that cross-examination of prosecution witnesses was necessary for a just decision of the case. Deeming it appropriate that petitioners be put to terms, the Court allowed their application filed under Section 311 while inflicting a cost of Rs 30,000 to be deposited with Prime Minister’s Relief Fund. [Ashok v. State, 2019 SCC OnLine Del 7059, dated 04-02-2019]

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Kerala High Court: A Single Judge Bench comprising of Sunil Thomas, J. set aside the order of Sessions Judge requiring advance submission of questions to be put to witness in cross-examination holding the same to be improper.

The instant petition was preferred by an accused facing trial for offences punishable under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) alleging lack of fair trial. It was submitted that, after the conclusion of victim’s examination-in-chief, a questionnaire of cross-examination was advanced to the Court, copy whereof was also furnished to the prosecutor and the case was adjourned after ten days. The petitioner contends that this procedure was in total disregard of principles of cross-examination as it would enable the prosecutor to prepare the witness to answer the questions.

The High Court observed that as per Section 33 (2) of the POCSO Act, counsel appearing for the accused, while recording the examination-in-chief, cross-examination or re-examination of the child, is obliged to communicate the questions to be put to the child to the Special Court, which shall, in turn, put those questions to the child. 

While the Act does insulate a victim against aggressive cross-examination, the court has to ensure that the relevant questions which may be embarrassing to the witness are decently conveyed to him without leaving out the spirit and soul of the said question, to ensure fair trial of the accused.

Section 33 of the Act does not empower the Court to demand a questionnaire from either side in advance before the examination of witness. Such an act would negate the right of the accused to a fair trial since, defeat the very purpose of cross-examination and make it an empty formality.

In view of the above, the petition was allowed with a direction to the court below to permit the counsel for petitioner to continue cross-examination in accordance with law.[Unnikrishnan R v. Sub Inspector of Police,2018 SCC OnLine Ker 4642, decided on 31-10-2018]

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Delhi High Court: A Single Judge Bench comprising of Sanjeev Sachdeva, J. allowed a petition filed against the order of the trial court whereby the two of the prosecution witnesses were discharged only after recording of their testimony and without cross-examination.

The trial court had recorded the testimony of the said witnesses and thereafter discharged them. The petitioner submitted that sufficient opportunity was not granted for the defence counsel to be ready for cross-examination of those witnesses. Aggrieved by such discharging of the witnesses, the present petition was filed by the accused-petitioner.

The High Court perused the orders passed by the trial court. They, inter alia, showed that the matter was adjourned from time to time for examination and cross-examination and the same was being deferred either for want of FSL report or securing the presence of witness. It was seen that one of the witnesses was discharged after recording the testimony without cross-examination as on that date only a proxy counsel was present who sought passover or an adjournment which was not granted. Similarly, the opportunity for cross-examination of the other witness was not sufficient as the FSL report was produced by the Investigating Officer for the first time on the same date the witness was examined and discharged. In such facts and circumstances, the Court was satisfied that the petitioner was not afforded a sufficient opportunity to be ready for cross-examination. Thus, the petition was allowed and the trial court was directed to re-summon the witnesses concerned. [Deepak Kumar v. State (NCT of Delhi),2018 SCC OnLine Del 11517, dated 25-09-2018]

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Delhi High Court: A Single Judge Bench comprising of J.R. Midha, J. allowed a petition filed against the order of family court whereby opportunity of the petitioner to cross-examine the respondent was closed.

The family court, by its impugned judgment also dismissed the petitioner’s application for waiver of costs of Rs 10,000. Learned counsel for the petitioner sought an opportunity to cross-examine the respondent on payment of costs as imposed by the family court. Learned counsel for the respondent opposed the prayer.

The High Court relied on A. v. T., 2018 SCC OnLine Del 9395, wherein it was observed that it is very difficult to find the truth if the right of cross-examination of any witness is closed in undue haste. Further, cross-examination is a powerful weapon by which the defence can separate the truth from falsehood by piercing through the evidence given by a witness. In view of these categorical observations, the High Court held that one opportunity should be granted to the petitioner to cross-examine the respondent. The date for cross-examination before the family court was fixed, and orders made accordingly. [P. v. R.,2018 SCC OnLine Del 10052, dated 19-07-2018]

 

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Madras High Court: Setting aside the decision of the Court of Special Judge under the Prevention of Corruption Act, refusing the petitioner accused the right to recall an important witness for cross-examination, the Bench of Dr. P. Devadass, J., allowed the petitioners to recall the witness for cross-examination cautioning that the cross-examination should be completed as soon as possible and that deferring the same would not be permitted. However, taking the opportunity to ponder upon the conflict between an accused person’s constitutionally guaranteed right of defense, the duty of the State to punish the offenders and the plight of the victims/witnesses due to prolonged trials, the Court observed that a court should be magnanimous in protecting the rights of the accused, however it must ensure that this magnanimity does not become a headache for the victims of the offences and the witnesses, thereby resulting in failure of justice.

The petitioners  were charged for the offence under Sections 7 and 13(2) read  with Section 13(1)(d) of  the Prevention of Corruption Act, 1988. The witness that the petitioners were seeking for cross-examination was a trap operation witness. However, the Special Judge referring to Vinod Kumar v. State of Punjab, (2015) 3 SCC 220, refused to entertain the recall petition. It was contended by the petitioners that the trial court cannot deny the accused their right to cross-examine a witness. Moreover, the Special Court has misunderstood the Supreme Court dictum in Vinod Kumar thinking that recalling of witnesses for cross-examination is not permitted at all. However, the respondents rebutted by contending that, the petitioners have not cited any proper reason for the recall of witness.

Perusing the contentions, the Court observed that in Vinod Kumar case, the Supreme Court had raised concerns over unnecessary adjournments in the trial courts, thereby deferring the cross-examination of witnesses; however it was never said that recalling witnesses for cross-examination is prohibited. In fact the Supreme Court advised the trial courts to avoid unnecessary adjournments and try to finish the cross-examination of the witnesses on the same day or at least on the next day. The Court further observed that the examination-in-chief of the trap operation witness has already been conducted, however, if under Section 138 of Evidence Act, the testimony is not tested at the altar of cross-examination, then it shall cause a great prejudice to the petitioner accused. However the Court addressed the sufferings the victims and the witnesses face during the trial. The Court stated that victims/witnesses are guests who assist the courts in fact finding, therefore deferring their examination on flimsy grounds by the trial courts, and employment of mean tricks by the accused to dilute their testimony should be avoided to uphold the ends of justice.  [Vincent v. The State, 2016 SCC OnLine Mad 9048, decided on 22.08.2016]