Section 161 CrPC

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

Jammu & Kashmir High Court: Tashi Rabstan, J. upheld the finding of the revisional court as it was found to be well reasoned and no abuse of process of law was visible, warranting any interference from the instant Court.

The petitioner filed the instant petition under Section 561-A of the Code of Criminal Procedure (“Cr.P.C”) for setting aside the order passed by learned Additional Sessions Judge, Jammu whereby the order, passed by learned Judicial Magistrate First Class (Munsiff) Jammu discharging the petitioners from the offences mentioned in the Challan against them by the prosecution was set aside.

It was contended by the petitioners that they were being falsely implicated in the FIR by to satisfy a personal vendetta. The material collected by the prosecution during the investigation did not support the prosecution’s case in the framing of charges under Sections 498-A, 323, 504, 506, 109 of the Ranbir Penal Code as the petitioners No. 3 and 4 were not related to the husband of the respondent so as to constitute the offence under Section 498-A RPC.

The counsel for the respondents while trying to defend the Trial Magistrate submitted that the court could not have sifted the evidence placed before it or appreciated the evidence intrinsically at the stage of framing of charge, which was to be considered final. It was further submitted that the allegations in FIR and statements recorded under Section 161 of CrPC prima facie established the offences with which the petitioners were challaned and were required to be put on trial by framing the charge against them.

On perusal of the challan filed after the complete investigation, it was found that statements of nine witnesses recorded under Section 161 CrPC corroborated the allegations leveled against the petitioners in the FIR. The learned Trial Magistrate had appreciated the evidence including the medical report of injuries sustained by the respondent as if she was considering the case either to convict or acquit the accused. The learned Magistrate had observed that petitioner’s 3 and 4 were not related to the husband of the respondent, therefore, the offence under Section 498-A RPC were not made out against them, which was required to proved/disproved by leading evidence and not a mere prima facie case.

The court held that at the time of framing charge, the court had to consider the final investigation report, statement of witnesses under Section 161 CrPC, documents and other evidence adduced by the prosecution and if they saw that the allegations were groundless and no case was made out against the accused, that is, if it was unrebutted, it would not have warranted a conviction, however, if there were even probable chances of commission of offence by accused persons the court needs to frame charges. All this had to be done by prima face appreciation of material on record and not by a roving enquiry by scanning and evaluating the evidence as if the court had to decide whether the accused had committed the offence or not. For such limited purposes of prima facie satisfaction, the court may sift through the evidence produced by the prosecution to find out whether the ingredients of offences were satisfied or not a conduct a mini-trial by marshaling the evidence on record.  [Tamandeep Singh v. State of J&K, 2019 SCC OnLine J&K 855, decided on 25-10-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Division Bench of Rajiv Sharma and Harinder Singh Sidhu, JJ. dismissed an appeal initiated against the judgment of trial court whereby appellant herein was convicted of murder under Section 302 of Penal Code,1860 (hereinafter ‘IPC’) and sentenced to life imprisonment, holding that prosecution had proved the case against the appellant beyond any reasonable doubt. In doing so, the Court issued detailed directions for witness protection.

The facts of the instant case were that one of the official witnesses was standing with two of his friends inside the Court complex when a car pulled up and three to four unidentified men came out of it, all armed with pistols. These men began abusing one of the witness’ friends and opened fire at him. A bullet hit him in the head and he died. Another person was injured due to the firing and his statement was recorded. The prosecution examined the witnesses and statements of the accused were recorded, following which the appellant and his co-accused were convicted and sentenced.

Anmol Rattan Sidhu, the learned counsel for the appellant, along with Pratham Sethi contended that the prosecution had failed to prove the case against the appellant.

S.P.S. Tinna and Harbir Sandhu, the learned counsels appearing on behalf of the State, supported the prosecution’s case.

The Court held that the prosecution had proved the case against the appellant beyond a reasonable doubt. It, however, observed that the three official witnesses had not supported the case of the prosecution and were instead pronounced hostile. The Court opined that the likelihood of a witness turning hostile was alarming as it was expected that the principle witnesses in a case would support the case of the prosecution. It further added that “the trial Court instead of resorting to conclude the trial on a day-to-day basis, has given an inordinate period of six months for recording cross-examination of PW-1 Balwinder Kumar. The result was that he was won over along with PW-2 Sukhwinder Singh”. State of Punjab was asked ‘to initiate disciplinary proceedings against PW-10 HC Jagjit Singh, PW-11 HC Gurjit Singh, PW-12 HC Sunil Kumar within three months, for dereliction of their duties for not supporting the case of prosecution though they were on the spot’.

Witnesses turning hostile

The Court considered the case of Ramesh v. State of Haryana, (2017) 1 SCC 529 where it was observed that act of witnesses turning hostile may be described as “culture of compromise”. It relied on Bablu Kumar v. State of Bihar, (2015) 8 SCC 787 and opined that “The Court cannot be a silent spectator or mute observer when it presides over the trial. It is the duty of Court to see that neither prosecution nor accused play truancy with criminal trial or corrode sanctity of the proceedings. The law does not countenance a ‘mock trial’.”

Fairness of trial – for accused as well as the victim

It was opined that fairness of trial should not only be from point of view of accused, but also from point of view of victim and society. Reliance in this regard was placed on State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402.

Role of the State in witness protection

The Court further relied on Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 where it was held that crimes are public wrongs, in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to society in general. Thus, the State has an important role in witness protection, and there are a pressing and urgent need for legislative measures to protect witnesses. Relying on Himanshu Singh Sabharwal v. State of M.P, (2008) 3 SCC 602, it was observed that the State must ensure that during a trial, witnesses can safely depose truth without any fear of being haunted by those against whom he has deposed.

Witness Protection Scheme, 2018

The Court heavily relied on Mahender Chawla v. Union of India, 2018 SCC OnLine SC 2679 where the Supreme Court directed the Union of India as well as States and Union Territories to enforce the Witness Protection Scheme, 2018 in letter and spirit.

Directions for witness protection

Accordingly, this Court issued the following mandatory directions to ensure fair and expeditious enquiry, investigation, trials and to prevent the witnesses from turning hostile:

  1. All trial courts, of the State of Punjab, should examine eyewitnesses on a continuous basis and grant adjournments for next day only after recording cogent, convincing and special reasons.
  2. State of Punjab was directed to make suitable amendments in IPC and the Code of Criminal Procedure, 1973 (hereinafter ‘CrPC’) to punish the persons inducing, threatening and pressurizing any witness to give a false statement, within three months.
  3. State of Punjab was directed to provide reasonable traveling allowance to the witnesses. If the hearing got continued to next day, then boarding and lodging should also be provided by the State Government through the State Exchequer.
  4. State of Punjab was also directed to ensure the material witnesses in ‘heinous and sensitive matters’ on a short term or long term basis to enable them to fearlessly testify before the Court and also protect their identity, change their identity and relocate the witnesses.
  5. State of Punjab should install security devices in the witnesses’ home, including security doors, CCTV cameras, alarms and fencing, etc.
  6. Police should possess the emergency contact numbers of witnesses, close protection for the witnesses, regular patrolling around the witness’s house, escort to the Court and from the Court to their home with provision of government vehicle or a State-funded conveyance on the date of hearing.
  7. All the investigating officers in the State of Punjab must record statement under Section 161 CrPC by audio, video and electronic means.

The Home Secretary, State of Punjab was held to be personally responsible to implement the aforestated directions issued.[Abhijeet Singh v. State of Punjab, 2019 SCC OnLine P&H 1118, decided on 28-05-2019]

Case BriefsHigh Courts

Bombay High Court: P.N. Deshmukh and Pushpa V. Ganediwala, JJ. allowed an appeal filed against the order of the Sessions Judge whereby the appellant was convicted under Section 302 IPC for murder of one Pancham (deceased).

As per the prosecution case, the deceased failed to pay the loan he had taken from the brother of the appellant which led to the appellant assaulting the deceased, which resulted in his death. R.M. Patwardhan, Advocate for the appellant contended that the evidence of the eye-witnesses was not at all convincing and were totally contrary to each-other on material aspects. He prayed that the appellant may be acquitted. Per contra, S.A. Ashirgade, Additional Public Prosecutor appearing for the State, submitted that there was direct evidence against the appellant which was duly corroborated. He, thus, prayed for dismissal of the appeal.

The High Court noted that there was an inordinate delay of as many as 4 days in recording the statement of eye-witnesses. The Court referred to State of H.P. V. Gian Chand, (2001) 6 SCC 71 and Dilawar Singh v. State (NCT of Delhi), (2007) 12 SCC 641, to note the effect of the delay in recording statements of witnesses under Section 161 CrPC. It was noted: “If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case.”

In the case on hand, the delay in recording the statements was nowhere explained. On facts of the case, it was held that testimonies of the witnesses was in a shadow of doubt and that the evidence failed to prove the case beyond a reasonable doubt. Resultantly, the appeal was allowed and the appellant was acquitted of the offences charged with.[Sachin v. State of Maharashtra, 2019 SCC OnLine Bom 1080, decided on 21-06-2019]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Vipin Sanghi and I.S. Mehta, JJ. took notice of the status report filed by the Delhi Police in compliance of the previous order of the High Court.

In the report, Delhi Police disclosed that from 1 July 2017 to 30 June 2018, a total of 2,38,070 cases were registered and approximately 10 lakh witnesses were examined. It submitted that since IT is dynamic and existing technology becomes obsolete very soon, the storage device which is used now may not be operable while recording evidence before the Court and it may not be possible to retrieve the data at relevant time. Also, to successfully store and retrieve such data, an information retrieval system with huge capacity will have to be set up which require involvement of experts and might include issues of data security, hacking, ownership of clouds, etc.

The High Court considered the issues raised in the report and was of the view that with involvement of experts in the field, the said issues can be satisfactorily taken care of. The Court made following observations:

  • The recording of statements of witnesses and disclosure statements may be recorded by a body-wearable camera.
  • Digital recording of the proceedings under Section 161 CrPC will lend immense credibility to performance of the police.
  • Storing data in digital media will take far lesser space than manual records.
  • It is for the State to arrange the funds — either Government of NCT of Delhi or the Central Government — for installation of such technology.
  • The issues related to finance should not deter the State to implement the use of such technology in larger public interest and to preserve and advance the rule of law.

The Court issued notice regarding the same to the Commissioner, Delhi Police; Home Secretary, Delhi Government; and Secretary, Ministry of Home Affairs, Union of India. The matter is further listed on 10 September 2018. [Ramesh Kumar v. State (NCT of Delhi), Crl.  A. No. 395 of 2000, dated 20-08-2018]

Case BriefsHigh Courts

Delhi High Court: The Division Bench comprising of Vipin Sanghi and I.S. Mehta, JJ., pronounced an order in regard to the action report of the Delhi Police, that in accordance to display of immense credibility of performance on the part of the Delhi Police, digital recording of the proceedings should be conducted.

The action report pointed out some very pertinent issues, that the existing technology would soon become obsolete and the devices which are used for storage now, won’t be operable in the near future, which would make retrieving the data an impossible task. The retrieval mechanism as suggested in the report was that it needs to be set with huge capacity which would need “cloud computing technology”.

The High Court while addressing the issues stated that they do not seem to be insurmountable and with the involvement of the experts all the stated issues in the report could be resolved easily.

Further, the Court suggested that digital recording of the proceedings be conducted by the police, inter alia, Section 161 CrPC should completely take over the existing mechanisms/procedures. Court also opined that the storage of digital media in whichever way it is stored is far less space-consuming than the space required for preservation of manually recorded proceedings/statements on paper. In regard to funds needed to adopt such methods, State would be responsible to arrange the same, either by Government of National Capital Territory of Delhi or Central Government.

The matter was further listed for 10-09-2018. [Rakesh Kumar v. State (NCT of Delhi), CRL.A 395 of 2000, Order dated 20-08-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Ranjan Gogoi, Navin Sinha, and K.M. Joseph, JJ., allowed an appeal and acquitted the accused-appellant for the offences under Sections 363, 366 and 376 IPC, on the basis of  “benefit of doubt”.

The accused-appellant was charged under Sections 363, 366 and 376 of the Penal Code by the trial court and further the High Court had recorded the order of conviction under the Sections mentioned above.

The matter favoured the accused-appellant as the evidence placed stated that the stand of the prosecutrix in regard to abduction and rape was different from her statement which was recorded earlier under Section 161 CrPC, 1973. It was also recorded by one of the prosecution witnesses that the prosecutrix stayed with the accused for about 2 days in Kullu and further until she was recovered she was in the company of the accused for 12 days and yet she did not complain of any criminal act against the accused-appellant.

On the analysis of the evidence the main question arose was that of the age of the prosecutrix, whether she was a major at the time of occurrence of the incident? For that, the prosecutrix failed to prove that she was a minor.

Therefore, the Supreme Court by stating that the “benefit of doubt” should naturally go to the accused in the present case on the basis of the above-recorded pieces of evidence and facts, held that the possibility of the prosecutrix to be a consenting party cannot be ruled out altogether. Hence, setting aside the High Court’s order, the accused-appellant was acquitted from all the charges. [Rajak Mohammad v. State of Himachal Pradesh,2018 SCC OnLine SC 1222, Order dated 23-08-2018]