Delhi High Court
Case BriefsHigh Courts

Delhi High Court: Manoj Kumar Ohri, J., while discussing the scope of Section 311 of the Criminal Procedure Code, 1973 with regard to recalling and cross-examining the witness expressed that,

It is the duty of every Court to ensure that fair and proper opportunities are granted to the accused for just decision of the case.

A petition was filed under Section 482 of the Criminal Procedure Code on behalf of the petitioner seeking setting aside the orders of the lower court whereby the opportunity of the petitioner to cross-examine the witness (PW-1) was closed and an application filed under Section 311 CrPC seeking recall of the said witness was dismissed.

Scope of Section 311 CrPC

 Supreme Court considered the scope of Section 311 CrPC in P. Sanjeeva Rao v. State of Andhra Pradesh, (2012) 7 SCC 56.

Further, in the decision of Natasha Singh v. CBI, (2013) 5 SCC 741, while referring to its earlier decisions in Mir Mohd. Omar v. State of W.B., (1989) 4 SCC 436, Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271, Rajeswar Parasad Misra v. State of W.B., (1966) 1 SCR 178, Rajendra Prasad v. Narcotic Cell, (1999) 6 SCC 110, P. Sanjeeva Rao v. State of Andhra Pradesh, (2012) 7 SCC 56 and T. Nagappa v. Y.R. Muralidhar, (2008) 5 SCC 633, Supreme Court held as under:

  1. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at “any stage” of “any enquiry”, or “trial”, or “any other proceedings” under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.

xxx xxx xxx

  1. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as “any court”, “at any stage”, or “or any enquiry, trial or other proceedings”, “any person” and “any such person” clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.”

 In the instant case, petitioner had initially sought to cross-examine both the parents of the deceased on one day, however, the prosecution subsequently chose to drop the mother of the deceased from the array of the witnesses.

Petitioner had ample opportunity to cross-examine the witnesses, but he did not utilize the same.

Court cannot lose sight of the fact that a fair trial is the hallmark of criminal procedure. It entails not only the rights of the victims but also the interest of the accused.

High Court while observing the above added that, it is the duty of every Court to ensure that fair and proper opportunities are granted to the accused for just decision of the case.

Elaborating more on its observations, Court stated that, adducing of evidence by the accused in support of his defence is also a valuable right and allowing the same is in the interest of justice.

Considering the fact that the petitioner had been charged for the offence punishable under Section 304B IPC and the witness was the father of the deceased, High Court deemed it apposite to grant one opportunity to the petitioner to cross-examine the witness, subject to a cost of Rs 5,000 to be deposited with Delhi State Legal Services Authority.

The matter was fixed before the trial court for 25-2-2022 and the investigating officer shall take appropriate steps to summon the witness and the matter shall be listed before the Trial Court on 14-2-2022.

Further, the Bench added that in case the petitioner does not cross-examine the witness on the date fixed and seeks an adjournment, his right to cross-examine shall stand closed.

In view of the above petition was disposed of.[Krishan Kumar v. State (GNCT) of Delhi, 2022 SCC OnLine Del 215, decided on 21-1-2022]


Advocates before the Court:

For the petitioner: Inderpal Kokhar, Advocate

For the respondent: Hirein Sharma, APP for State

Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: Sandeep Sharma, J., allowed the petition and quashed the impugned order dated 17-07-2017.

 The facts of the case are such that husband filed divorce petition under Section 13 of the Hindu Marriage Act, against the wife on the ground of cruelty. During the pendency of aforesaid divorce petition, husband filed an application under Order 18 Rule 17-A read with Section 151 CPC seeking therein permission of the Court to allow him to lead additional evidence, which may be necessary and just for the proper adjudication of the case. It was averred that he is in possession of original recording of the conversation, which is intended to be adduced on record by way of additional evidence would show that father of the wife has openly threatened him as well as his family members. The said application was allowed. Being aggrieved and dissatisfied with the order, petitioner (wife) approached the Court in the instant proceedings, praying therein to set-aside the order.

The Court observed that that by way of additional evidence husband intended to prove factum with regard to threats extended to him and his family members by the father of the wife, which fact was very much in his knowledge at the time of filing replication. Careful perusal of cross-examination conducted upon the wife witnesses, nowhere reveals that suggestion, if any, was ever put to the wife with regard to existence of audio CD or recording of the conversation qua the meeting held at Shimla. It was further observed that wife in his examination-in-chief or cross examination has admitted the factum with regard to meeting held at Shimla, but there appears to be no attempt on the part of the husband to put a suggestion to wife that during meeting at Shimla he and his family members were threatened and he was in possession of the CD, which omission on the part of the husband certainly compels the Court to agree that application having been filed by the husband at the time of arguments is an afterthought merely to fill up the lacuna.

The Court observed that basic purpose of Rule 17 is to enable the Court to clarify any position or doubt. While exercising power Under Order 18 Rule 17-A CPC, Court may, either suo motu or on the request of any party, recall any witness at any stage in this regard. No doubt, power can be exercised at any stage, once the Court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the Court. The power under Rule 17 cannot be stretched any further, however said power cannot be invoked to fill up omission in the evidence already led by a witness.

The Court held “since factum with regard to existence of audio CD sought to be adduced on record as additional evidence was very much in the knowledge of the husband before commencement of trial and at the time of leading evidence, has no hesitation to conclude that application filed under Order 18 Rule 17-A CPC is nothing, but an attempt to protract the trial and as such, same deserves to be dismissed.”[Dr Honey Johar v. Ramnik Singh Johar, 2018 SCC OnLine HP 3295, decided on 21-12-2018]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For the Petitioner: Mr. Anuj Nag, Advocate.

For the Respondent: Mr. R.G.S. Saini, Advocate

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: The Division Bench of Devika Abeyratne and P.  Kumararatnam, JJ., allowed an appeal and set aside the conviction and the sentence acquitting the appellant from charges of bribery on account of inconsistent evidence produced.

In this case, the Director General of the Commission to Investigate Allegations of Bribery or Corruption, on the directions of the Commission had indicted the accused-appellant who was the school Principal of Mahanama Navodya School in Panadura in the High Court of Colombo under section 19(b) and section 19(c) of the bribery act.The Counsel for the Appellant argued that the prosecution had failed to prove the case beyond reasonable doubt since the date, place or time of solicitation had not been proved and that the trial judge had failed to consider these important points.

The Court observed that it was a trite law that it was not necessary to call a certain number of witnesses to prove a fact. However, if Court was not impressed with the cogency and the convincing character of the evidence of the sole testimony of the witness, it was incumbent on the prosecution to corroborate the evidence as stated in Sunil v. AG, 1999 (3) SLR page 191.

The Court also referred to the case of Liyanage v. Attorney, (1978-79) 2 SLR 111 CA ), to reiterate that in a trial under the Bribery Act on a charge of solicitation it is unsafe to allow a conviction to stand solely on the uncorroborated testimony of the complainant.

The Court noted that there were contradictions in the testimony of PW 1 and PW 3 which cannot be considered as minor discrepancies. On that note, the Court held that when considering the serious charge against the appellant, especially when there is no acceptable reason given why Hansani was not called as a prosecution witness, it was dangerous to rely on the sole evidence of PW 1.

The Court referred to the case of K Padmathillake v.  Director General, Commission to Investigate Allegations of Bribery or Corruption, 2009 2 SLR 151 SC, where it was held that,

 “No hard and fast rule can be laid down about appreciation of evidence. It is after all a question of fact and each case has to be decided on the facts as they stand in that particular case. Where a witness makes two inconsistent statements in his evidence with regard to a material fact and circumstance, the testimony of such a witness becomes unreliable and unworthy of credence”

 It was further concluded that it was not safe to allow the conviction solely on the uncorroborated testimony of PW 1. It was observed that when considering the totality of the evidence it is apparent that the prosecution has failed to prove beyond reasonable doubt that there was solicitation by the appellant on the date specified in the indictment the benefit of that doubt must ensue to the appellant.[Thelge Nadeeka Kaumadi Peiris v.  Bribery Commissioner, 2021 SCC OnLine SL CA 1, decided on 17-12-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Counsel:

Eraj De Silva with Hafeel Fariz, Janagam Sundaramoorthy and Daminda Wijesuriya for the Accused-Appellant.

Subashini Siriwardena with Anusha Sammandapperuma for the Complainant-Respondent

Case BriefsSupreme Court

 Supreme Court: In a case where a 74-year-old has been behind the bars since 2012 as an undertrial prisoner, after being arrested under the Unlawful Activities (Prevention) Act, 1967 (UAPA), the bench of Ajay Rastogi and Abhay S. Oka, JJ has directed that the accused be released on post-­arrest bail by the trial Court.

Asim Bhattacharya was arrested on 6th July, 2012 for offences under Sections 120B, 121, 121A, 122 IPC, Section 25(1A) of the Arms Act 1959, Section 5 of the Explosive Substances Act, 1908 and Sections 18,20,40(1)(b)(c) of the Unlawful Activities(Prevention) Act, 1967. The matter was then tranfereed to the National Investigation Agency (NIA).

The Court noticed that though the charges against the accused are “undoubtedly serious”, the same will have to be balanced with certain other factors like the period of incarceration which the appellant has undergone and the likelihood period within which the trial can be expected to be finally concluded.

The Court, hence, considered the following factors,

  • the old age of the accused
  • the statement of the de-facto complainant has still not been completed,
  • there are 298 prosecution witnesses in the calendar of witness although the respondent has stated in its counter affidavit that it may examine only 100 to 105 witnesses but indeed may take its own time to conclude the trial.
  • The Accused is in custody since 6th July, 2012 and has completed nine and half years of incarceration as an undertrial prisoner.

Section 19 of the National Investigation Agency Act, 2008 mandates that the trial under the Act of any offence by a Special Court shall be held on day-to-day basis on all working days and have precedence over the trial of any other case and Special Courts are to be designated for such an offence by the Central Government in consultation with the Chief Justice of the High Court as contemplated under Section 11 of the Act 2008. The Court, however, noticed that the ground realities are totally different. In the instant case, after the charge-sheets came to be filed way back in 2012, the charges have been framed after 7 years of filing of the charge-sheet on 20th June, 2019. The order sheets indicate that hearing is taking place only one day in a month.

The Court, hence, noticed that,

“looking to the voluminous record and number of the prosecution witnesses which are to be examined, it may take its own time to conclude and indeed the undertrial prisoner cannot be detained for such a long period of incarceration.”

Noticing that deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21 of the Constitution of India, the Court said that,

“While deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long. At the same time, timely delivery of justice is part of human rights and denial of speedy justice is a threat to public confidence in the administration of justice.”

Hence, once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the Courts would ordinarily be obligated to enlarge him on bail.

The Court, hence, directed that the accused be released on post-arrest bail. However, the trial Court will be at liberty to consider and impose appropriate conditions.

[Ashim v. National Investigation Agency, 2021 SCC OnLine SC 1156, decided on 01.12.02021]

*Judgment by: Justice Ajay Rastogi

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Sophy Thomas, J., quashed proceedings against the petitioner who was charge sheeted for being under the influence of alcohol during his visit to police station for identifying an accused. The Bench stated,

“Consuming liquor in a private place without causing nuisance or annoyance to anybody will not attract any offence”

Facts of the Case

The petitioner, a Village Assistant was called to the Police Station in order to identify an accused, against whom a case was registered under Section 353 of IPC and Section 20 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act.

The grievance of the petitioner was that since that accused was a stranger to him, he could not identify him, and only because of that fact, Police had charge sheeted him under Section 118(a) of the Kerala Police Act alleging that he was under the influence of alcohol at that time.

While the FIR suggested that the petitioner was intoxicated and was unable to control himself and the 161 statements of the witnesses were to the effect that the petitioner challenged the Police and committed rioting inside the Police Station.

Findings of the Court

In order to attract an offence punishable under Section 118(a) of the KP Act, a person should be found in a public place in an intoxicated manner or rioting condition incapable of looking after himself.

The Bench opined that even if it was taken for argument sake that the petitioner had consumed alcohol at that time, the available records did not show that the petitioner was sent to doctor for a clinical examination, or to show that his blood test was conducted to prove that he was intoxicated.

The records show that he was subjected to Alco-quant test using Alcometer. All the witnesses are Police Officers except one Saseendran, who was the accused arrested under the Sand Act, to identify whom the petitioner was called to the Police Station.

The meaning of the word ‘intoxicated’ as given in Advanced Law lexicon by P.Ramanatha Aiyar is that “a man is intoxicated whenever he is so much under the influence of spirituous or intoxicating liquors that it so operates upon him, that it so affects his acts or conduct or movement, that the public or parties coming in contact with him could readily see and know that it was affecting him in that respect.”

The Bench observed, the expression ‘rioting condition’ used in Section 118 (a) would mean that the person was behaving in a way that is violent and/or not in control. While the condition ‘incapable of looking after himself’ envisaged under Section 118 (a) of the KP Act, means weakening of self-control, weakening of self-awareness, and incapacity to know or realize the consequences of the action etc are relevant factors. Similarly, incoherent speech, unsteady gait, staggering etc., and the manner in which he conducts himself towards fellow-men were also relevant factors to hold whether the accused person was in proper control of himself.

Decision

Having observed various terms used against the petitioner with regard to the particular case against him, the Bench held that even if it was taken for argument sake that the petitioner had consumed alcohol, the available facts and materials were not sufficient to suggest that, he was not able to control himself or he committed rioting inside the Police Station causing nuisance.

Moreover, the petitioner had reached Police Station, only because he was asked to be present there. Hence, the petition was allowed and the proceedings against the petitioner were quashed. The petitioner was directed to be discharged. [Salim Kumar B.S. v. State of Kerala,2021 SCC OnLine Ker 4136, decided on 10-11-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Advocate I.V.Pramod, Advocate K.V.Sasidharan and Advocate Saira Souraj P.

For the Respondent: Devi Shri R., Public Prosecutor

Case BriefsHigh Courts

Madhya Pradesh High Court: Subodh Abhyankar, J., allowed a petition which was filed aggrieved by the order whereby the right of the petitioner/accused to cross examine the Investigating Officer had been closed.

Petitioner was facing trial for offence under Sections 342, 366, 376 of the Penal Code, 1860 in the Court of IIIrd Additional Sessions Judge wherein the Investigation Officer, was being examined and in the course of his cross examination a question was asked by the counsel appearing of the petitioner/accused which, according to the Judge of the trial court, was a matter of argument only and was not relevant. After which judge of the trial Court directed the counsel appearing for the petitioner not to ask such irrelevant questions, otherwise his right to cross examine the witness could be closed. Unfortunately the next question asked by the counsel for the petitioner, came to be as irrelevant, after which the Judge closed the right of the petitioner/accused to cross examine the witness.

Counsel for the petitioner submitted that the questions which were put to the Investigating Officer were relevant and even otherwise the Judge of the trial court ought not to have closed the right of the petitioner which is a valuable right and all the more important in a serious offence like Section 376 of IPC.

The Court before giving any merits of the case referred to the questions that led to the controversy and opined that order passed by the Judge of the trial court leaves no manner of doubt that viewed from any angle, the impugned order cannot be sustained in the eyes of law as it defeats the entire purpose of the right of an accused to cross examine the witness.

It is trite that cross-examination is the only tool available to a defence lawyer to test the veracity of a prosecution witness, it is the only way out to an accused to clear his name from the alleged offence hence his right to cross examine a witness cannot be curtailed in such a cavalier manner.

The Court however explained that the art of cross examination was very difficult to master and the same takes years of hard work and exposure to trials that one can have some expertise in it. The Court stated it is only through a long and hard exercise of trial and error method that a lawyer learns the art of cross examination but if the judge presiding over the matter is impatient or edgy, it not only culminates into an order like the impugned one, but also hampers the overall learning process or grooming of a lawyer who, before becoming an expert trial court lawyer, is bound to falter many a times by asking irrelevant or inadmissible questions to a witness in the box.

The Court further stated that it is expected from the judges of the Trial court to be patient and tolerant in their approach towards the Trial Court lawyers during the examination of witnesses.

The Court was of the opinion that if Judge was of the opinion that despite his warnings the counsel appearing for the petitioner has continued to ask irrelevant questions, then other modes were also available to the learned Judge of the trial court as are prescribed in the Evidence Act, 1872 from Sections 146 to 152 and in some exceptional cases, the learned judge may also resort to the measure like imposing cost on the counsel for repeatedly and recklessly asking the irrelevant and inadmissible questions but, instead of taking resort of such procedure, the learned Judge has closed the right of the accused to cross examine the witness, which cannot be countenanced in the eyes of law.

The Court set aside the impugned order and directed to recall the Investigating Officer and allow the counsel for the petitioner to cross-examine him.[Sachin v. State of M.P., Miscellaneous Criminal Case No. 35901-2021, decided on 30-07-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Advocates before the Court:

Counsel for the applicant: Ms Sonali Goyal

Govt. Advocate for the respondent/State: Shri Valmiki Shakargayen

Op EdsOP. ED.

Introduction

Identity may be thought of as a quality of a thing or a person. In an instance where the court must know the identity of any person or thing which would substantially help in adjudicating upon a case, then every fact which establishes such identity becomes relevant. With the development of law, police use visual, scientific, audio, etc. modes for obtaining identification of suspects. Indeed, there is no restriction on facts to be given in court to establish the identity in question, but their admissibility may vary. This paper focuses on the study of witness evidence that are admissible in proving the identity of a suspect and problems which may curtail the admissibility of such shreds of evidence.

Significance of identification evidence

The two questions which hold great importance in criminal trials are: whether the offence that is alleged was committed and if yes, then who committed it. Talking particularly about the questions pertaining to identity may come up in two ways—

  1. A person’s identity with an ascertained person.
  2. A person’s identity as the doer of a particular act.

When a person’s identity with an ascertained person is in issue then it may be proved and disproved presumptively by similarity or dissimilarity of characteristics like weight, size, hair, voice, etc[1].

The identity of a person or thing is necessary to prove relevant facts of the case and the identification test is not a substantive piece of evidence. It provides a kind of assurance to the investigating agency and the court that they are proceeding in the right direction. The same was held by the court in Musheer Khan v. State of M.P.[2].

There is this notion that witnesses are the best sources of extracting reliable evidence because of the assumptions that if a person sees someone commit a crime especially a stranger he or she would not forget the accused face or appearance because the person witnessed an unusual event and it is a human tendency to remember such things somewhere in the back of their minds which was not normal to them. Also, Bentham said “witnesses are the eyes and ears of justice”, this makes the role of a witness of paramount importance in the justice delivery system.

Though identification evidence is potentially unreliable and merely corroborative in nature, errors in recording them or cases of mistaken identity though in good faith can lead to effects like wrong convictions which can prove to be extremely serious for the defendants and his/her family also many times. For a long time misidentifications have bedeviled our justice system and continue to, with a rate of 52% wrongful convictions every year as a consequence of it. So, the testimonies and identification evidence made by a witness must be dealt with utmost sensitivity as they play a vital role in deciding a matter and delivering judgment. Any false or wrong identification made on part of the witness becomes a gateway to the wrongful conviction of an innocent for the crime which that person to all intents and purposes didn’t commit. It is of paramount importance for the Judge to check and weigh the credibility and accuracy of such identification evidence given by the witnesses along with keeping a check that the evidentiary standards are maintained to avoid a miscarriage of justice.

Many times, it becomes difficult to identify the accused as the crimes are committed under the cover of darkness. In such cases, the identity of a person or thing and commission of a crime can be established using circumstantial evidence[3]. In cases where the guilt gets established by circumstances in such cases, the identification of the accused either in court or through test identification parade is not a sine qua non[4].

Under Indian law

Section 9 of the Evidence Act, 1872 deals with the facts which establish the identity of anything or person.

As per the section, all these facts are relevant[5]

  1. One’s which are necessary to explain a fact in issue or relevant fact.
  2. Which are required to introduce any fact in issue or relevant fact.
  3. That support the inference suggested by a fact in issue or relevant fact[6].
  4. Which rebut any or all conjectures made by a fact in issue or relevant fact[7].
  5. Which establish the identity of a person or a thing whose identity is relevant.
  6. Which fix the time or place at which the facts in issue or relevant fact happened[8].
  7. Establish the relations of parties between whom any such fact was transacted.

These facts are not otherwise admissible as far as they are necessary for the purpose pointed out in each category[9]. These facts sometimes give strength to the evidence given by one side and sometimes break the force of evidence given by the adverse side. These are explanatory pieces of evidence that are not relevant in themselves and the effect of these may not be affirmative in all cases, still, they prove to be substantial for corroboration of other shreds of evidence.

As we know that our criminal law stands on the saying “innocent until proven guilty” and this principle makes it mandatory for the prosecution to establish the evidence beyond reasonable doubt for the conviction to take place. The cases which rely on identification evidence tend to fail even if there exist any room for misidentification to occur because then the probative value of such evidence slump down[10].

There are various modes of identification—

  1. Photofits

Photofit is a reconstructed picture of a person what in layman terms we know to be a sketch of the face of a person or an attempted description of someone[11]. This technique is basically used as an attempt to reproduce the face of the suspects soon after the crime takes place so that the witness can let out whatever he can recall from the incident which he witnessed. It is claimed by Psychologist Ebbinghaus in “forgetting curve” that–

if attempts are made to recall and rehearse information then it can become a part of long-term memory otherwise at its first stage the information forms a part of our short-term memory which tends to fade away over a period of time[12].

The chances of misidentification increase with the increase in the time interval between the crime and identification exercise. In Reg. v. Cook (Christopher) the appeal that a photofit was not a written statement that could come under the purview of the rule against hearsay was dismissed and the photofit evidence was held to be admissible by virtue[13].

  1. Identification by photographs

Identification by photograph is another method used specifically at the investigation stage. It was held by the Supreme Court that there is no legal provision which states that identification by photograph is not admissible. In fact, it becomes a substantive piece of evidence when such identification is made in the Court[14]. Moreover, according to the court, identification by photograph must take place of test identification[15]. It is to be noted that in cases where the witness lays out some identifying features of the accused the course of action to be adopted by the investigating officer should be the one where the witness is shown more than one photograph of the suspect if available to draw out a confirmation as to the identity of the accused[16].

  1. Video and voice identification

Identification of the accused by the witness through video recording is admissible. In the case of D. Gopalakrishnan v. Sadanand Naik[17], it was said by the court that where there is the availability of video recording through which the witness can testify the identity of the accused then the photographs of the suspects should not be shown before such identification.

On the other hand, identification by voice is a bit risky in criminal trials particularly where the witness is not acquainted with the suspect and there are fine variations in overtones.[18] Many a time the legality of the orders passed by courts directing the accused to furnish the sample of his or her voice as a part of the identification process has been challenged. This question particularly was dealt with by the Law Commission of India in its 87th Report[19] on the Identification of Prisoners Act, 1920[20] when on the realisation of the fact that there is no legal provision in Indian laws, the necessity to amend Section 5[21] of the Act of 1920 was suggested which would empower the courts to direct the accused to give a sample of his voice. The controversy was finally settled by the Supreme Court in Ritesh Sinha v. State of U.P.[22], invoking its plenary power under Article 142[23] of the Constitution of India through the process of judicial interpretation the court under the cover of Section 54-A of the Criminal Procedure Code, 1973[24] engrafted the power on the Magistrate to pass orders directing the voice samples to be furnished by the accused or the suspect whenever in the case, the witness is capable of confirming the identity of the accused on the basis of voice recognition[25].

  1. Test identification parade

One of the most popular and widely used methods of identification of witness is the identification parade. Test identification parade is one where the witness who claims to have seen the culprit at the time of occurrence is to identify the accused from the midst of suspects without any aid or other source. These are meant to test the veracity of the witness and the capability to identify unknown persons. Test identification parade should be conducted at the earliest possible so as to eliminate the chance of the accused being shown to witness prior to the identification parade which might otherwise affect the memory of the witness along with the credibility of the evidence to be sought.

Test identification parade belongs to the investigation stage and there is no provision in the Code of Criminal Procedure, 1973[26] under which the accused can claim it as a matter of right or makes it mandatory for the investigating officer or agency to hold an identification parade[27]. In Ramanathan v. State of T.N.[28] the Supreme Court explained the utility of the evidence created by test identification parade (TIP). The Court said that the purpose behind holding a test identification parade by placing suspects in a line up so that the witness of the incident could recall the features in sufficient details and to find out who is the perpetrator of the crime.

It is not a substantive piece of evidence rather is used for the purpose of corroboration and to strengthen the trustworthiness of substantive evidence of a witness in the Court[29].The parades come under the purview of Section 164[30] of the Code of Criminal Procedure, 1973[31].

Delay or failure in holding the TIP does not by itself render the evidence inadmissible or unacceptable but affects the credibility and weight attached to such identification[32]. The Supreme Court held that the identification by witness of the accused for the first time in the court is worthless till the time it is not tested prior by test identification parade[33]. But this view was changed later on in Ravi Kapur v. State of Rajasthan[34] it was held that court identification is itself a good identification in the eye of the law, it depends on the facts and circumstances of each case and is not necessary that it must be preceded by test identification parade.

Procedure for test identification which is generally followed is

  1. Test identification parade is conducted by the Magistrate.
  2. Such parades are conducted in special rooms with one side view glass where on one side of it the suspects are lined up and on the other side the witness and Magistrate.
  3. The witness and Magistrate must not be on the side where they are not visible to the suspects. The main reason behind this is the protection of the witness and also to avoid any kind of influence or threat which could compel the witness to make false identification.
  4. Also, the attire of the suspects must be changed every time a witness is called to identify the accused among them.
  5. The Magistrate must prepare, certify and carry multiple copies of TIP reports[35].

With the development of technology and sophisticated computer systems countries like Britain nowadays use VIPER (video identification parade electronic recording) as a replacement for live parades where a line up of 15-second clips are shown in a sequence which starts with the person’s front face and then slowly turning to show left and right profiles[36]. There is a dire necessity to introduce such a system in India as well.

Conclusion

Though there are many ways to set up accused identity, the admissibility and credibility of such identification evidence given by a witness need to be weighed, especially in cases where the case of prosecution solely depends on such identification evidence. Therefore these evidences are a paradox in themselves because the memory of the witness can be easily flawed due to factors like duress or stress after witnessing a crime, influence from accused, family or acquaintance, and lapse of time, etc. and this affects the quality and credibility of such evidences making them hopelessly unreliable. Research tells that the memory of the witness of the accused appearance may remain in short memory for a brief period of time which can be easily lost. Also, the chances of memory for face getting affected and altered are substantial, particularly in situations where the eyewitness receives any misleading information through any source. Therefore these evidences are merely corroborative and not substantive in nature because their credibility and accuracy remain in question which prevents them from being the sole basis of conviction of the accused. Still, the importance of the identification evidence given by witness cannot be ignored completely while adjudicating upon a case. Steps should be taken by the courts to understand the subjectivity of the question involved, carefully weigh the identification evidence and accordingly apply legal principles[37].


3rd year student, BA LLB, Delhi Metropolitan Education affiliated with GGSIP University, e-mail: prerna_mohan@yahoo.com.

[1] Irshad v. State of Rajasthan, 2004 SCC OnLine Raj 474

[2] (2010) 2 SCC 748

[3] Prakash v. State of Karnataka, (2014) 12 SCC 133 : (2014) 6 SCC (Cri) 642

[4] Visveswaran v. State, (2003) 6 SCC 73 : 2003 SCC (Cri) 1270

[5] The Evidence Act, 1872, S. 9

[6] Shantanu Chakrak, S. 9 of the Evidence Act, 1872, Shareyouressays (25-3-2021, 12.02 a.m.), <https://www.shareyouressays.com/knowledge/section-9-of-the-indian-evidence-act-1872-2/120396>.)

[7] SRD Law Notes (22-3-2021, 16.00), <https://www.srdlawnotes.com/2016/12/identification-parade_23.html>.

[8] Tan Shoo May, Visual Identification: Recognition and Identification, Law of Evidence (23-3-2021, 11.10 a.m.), <http://evidencejournalist.weebly.com/bloggers/visual-identification-recognition-identification>.

[9] Batuk Lal, The Law of Evidence, 129 (22nd Edn., Central Law Agency, 2018).

[10] Riya Sharma, The Eyewitness Enigma: A Paradox in the Law of Evidence, The Criminal Law Blog, National Law University, Jodhpur (23-3-2021, 17.31),  <https://criminallawstudiesnluj.wordpress.com/2019/03/07/the-eyewitness-enigma-a-paradox-in-the-law-of-evidence/#_ftn1>.

[11] Reg. v. Cook (Christopher), (1987) 2 WLR 775

[12] Siegen K. Chou, What is the Curve of Forgetting? 45(2) The American Journal of Psychology 348 (1933).

[13] (1987) 2 WLR 775

[14] Umar Abdul Sakoor Sorathia v. Narcotic Control Bureau, (2000) 1 SCC 138

[15] Laxmi Raj Shetty v. State of T.N., (1988) 3 SCC 319

[16] D. Gopalakrishnan v. Sadanand Naik, (2005) 1 SCC 85

[17] (2005) 1 SCC 85

[18] Dola v. State of Odisha, (2018) 18 SCC 695

[19] <http://www.scconline.com/DocumentLink/515Y2gm2>.

[20] Law Commission of India, 87th Report on the Identification of Prisoners Act, 1920,(1980) 

[21] <http://www.scconline.com/DocumentLink/Wz2R58rl>.

[22] (2019) 8 SCC 1, para 27

[23] <http://www.scconline.com/DocumentLink/z3Hfxsu4>.

[24] <http://www.scconline.com/DocumentLink/WRitQgBb>.

[25] P.N. Prakash, Sanjay S. Jain and Sharath Chandran, The Legality of Voice Exemplars: An Opportunity Missed: Ritesh Sinha v. State of U.P., (2021) 1 SCC J-73 

[26] <http://www.scconline.com/DocumentLink/y587uE3Q>.

[27] Malkhansingh v. State of M.P., (2003) 5 SCC 746

[28] (1978) 3 SCC 86 at pp. 1211-1212

[29] Ram Babu v. State of U.P., (2010) 5 SCC 63; Vijay v. State of M.P., (2010) 8 SCC 191, 199

[30] <http://www.scconline.com/DocumentLink/JD3w6KNb>.

[31] Sarvesh Kumar Shahi, Rules and Principles of Identification under Criminal Justice System, SCC OnLine (25-3-2021, 13.00), <https://www.scconline.com/blog/?p=234322#_ftn23>.

[32] Shyamal Ghosh v. State of W.B.,  (2012) 7 SCC 646

[33] V.C. Shukla v. State (Delhi Admn.), (1980) 2 SCC 665 at p. 1396

[34] (2012) 9 SCC 284

[35] Murugasamy v. State, 2017 SCC OnLine Mad 37658

[36] Sarvesh Kumar Shahi, Rules and Principles of Identification under Criminal Justice System, at p. 6, SCC OnLine (25-3-2021, 13.00), <https://www.scconline.com/blog/?p=234322#_ftn23>..

[37] Riya Sharma, The Eyewitness Enigma: A Paradox in the Law of Evidence, The Criminal Law Blog, National Law University, Jodhpur (23-3-2021, 17.31), at p. 3  <https://criminallawstudiesnluj.wordpress.com/2019/03/07/the-eyewitness-enigma-a-paradox-in-the-law-of-evidence/#_ftn1>.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of led by former CJI SA Bobde, along with AS Bopanna and V. Ramasubramanian, JJ has set aside the order of the Allahabad High Court granting bail to a gangster arrested under Section 3 (1) of the U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986

“There is no doubt that liberty is important, even that of a person charged with crime but it is important for the courts to recognise the potential threat to the life and liberty of victims/witnesses, if such accused is released on bail.”

Rajnarain Singh was murdered by the accused, a contract killer and a sharpshooter, in conspiracy with others. In fact, previously, the accused has been prosecuted in fifteen cases for serious offences including murder, attempt to murder and criminal conspiracy.

It was argued before the Supreme Court that the Allahabad High Court granted bail on very liberal terms, such as the execution of a personal bond to the satisfaction of the jail Authorities and the furnishing of sureties within a month of his release. “The High court has simply ignored the antecedents of the accused and the potential to repeat his acts by organising his criminal activities.”

The deceased victim’s wife also contended that the conduct of the accused during the trial has been one of non-cooperation, by not cross examining the witnesses first, then praying for their recall and then threatening witnesses through his henchmen. In fact, the conduct of the accused impelled the Sessions court to direct the police to provide security in the court during the trial and provide security to the witnesses.

Making a strong case, the appellant also argued that the grant of bail in a routine manner to gangsters, has had an adverse effect in the past, upon the law and order situation. The Court was reminded of the case where Vikas Dubey, who was prosecuted in connection with 64 criminal cases which included cases of murders, offences of dacoity, criminal intimidation, extortion and offences under the UP-Gangster Act, etc., was released on bail. Ultimately, when a police team went to apprehend him in a case, allegedly 8 policemen were killed and many grievously injured.

Taking note of all the factors concerned, the Court said that the high court has overlooked several aspects, such as the potential threat to witnesses, forcing the trial court to grant protection.

“It is needless to point out that in cases of this nature, it is important that courts do not enlarge an accused on bail with a blinkered vision by just taking into account only the parties before them and the incident in question. It is necessary for courts to consider the impact that release of such persons on bail will have on the witnesses yet to be examined and the innocent members of the family of the victim who might be the next victims.”

[Sudha Singh v. State of Uttar Pradesh, 2021 SCC OnLine SC 342, decided on 23.04.2021]

Case BriefsSupreme Court

Supreme Court: The bench of Surya Kant and Aniruddha Bose, JJ has held that the strict principles of evidence and standards of proof like in a criminal trial are inapplicable in Motor Accident Claims cases.

“The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eye-witnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant’s version is more likely than not true.”

The Court was hearing the case relating to an accident resulting into the death of a 34-year-old man named Sandeep who was survived by his wife widow, two minor children and a mother; all of whom were dependent on him. His dependents had claimed Rs 60,94,000 as compensation alleging, inter alia, that Sandeep died as a result of the injuries suffered in the abovementioned accident of 25.03.2009, which occurred due to the rash and negligent driving of one Sanjeev Kapoor, the owner­cum-driverof the car in which Sandeep was travelling.

Sanjeev disowned responsibility for the accident by asserting that it was the truck which was coming from the opposite side at a very fast speed, and was being driven in a rash and negligent manner.

According to an eyewitness, however, Sanjeev was driving the car at a very fast speed when it overtook a vehicle and collided head­on against the oncoming truck. The Credibility of the eyewitness was questioned.

Noticing that the eyewitness had, acting as a good samaritan and a responsible citizen, taken the injured persons to the hospital, the Court said that it is commonplace for most people to be hesitant about being involved in legal proceedings and they therefore do not volunteer to become witnesses. Hence, it is highly likely that the name of Ritesh Pandey or other persons who accompanied the injured to the hospital did not find mention in the medical record. There is nothing on record to suggest that the police reached the site of the accident or carried the injured to the hospital.

“Without any personal interest or motive, he assisted both the deceased by taking him to the hospital and later his family by expending time and effort to depose before the Tribunal.”

Further, it is quite natural that such a person who had accompanied the injured to the hospital for immediate medical aid, could not have simultaneously gone to the police station to lodge the FIR. Hence, the High Court ought not to have drawn any adverse inference against the witness for his failure to report the matter to Police especially when the police had themselves reached the hospital upon having received information about the accident.

Not impressed with the way the High Court had approached the matter, the Court said,

“Unfortunately, the approach of the High Court was not sensitive enough to appreciate the turn of events at the spot, or the appellant-claimants’ hardship in tracing witnesses and collecting information for an accident which took place many hundreds of kilometers away in an altogether different State.”

[Anita Sharma v. New India Assurance Co. Ltd., 2020 SCC OnLine SC 1002, decided on 08.12.2020]

Case BriefsHigh Courts

Delhi High Court: While deciding the instant matter which revolved around the interplay and interpretation of Sections 306 and 308 of the CrPC, C. Hari Shankar, J., observed that pardoning an accomplice under Section 306 (1) CrPC, and his conversion into an approver, must mandatorily be followed by his examination as a witness under Section 306 (4) of CrPC. However, during the course of such statement, if the Public Prosecutor is able to discern that the approver is not abiding by the conditions, subject to which pardon was tendered to him, i.e. making a full and true disclosure of all facts within his knowledge; or the approver is concealing something essential; or is tendering false evidence, then the Public Prosecutor would so certify under Section 308 (1) of CrPC.

As per the facts, a case was registered against the respondent under various provisions of IPC and Prevention of Money Laundering Act, 2002. The respondent filed application under Section 306 of CrPC, for grant of pardon, which was allowed by the Special Judge, CBI. Later on the petitioner (Directorate of Enforcement) moved an application for revocation of the pardon. However, the Special Judge, in his Order dated 05-03-2020, disposed off the application moved by the petitioner on the ground that the application is premature and there is no merit in the interpretation of Sections 306 and 308 implying that pardon granted to any person can be revoked at any stage, even before the approver is examined before Session Court/Trial Court. The ED therefore challenged the impugned Order in the instant case. Appearing on behalf of the petitioners, Aman Lekhi, ASG, contended that the Special Judge has misconstrued the scheme of Sections 306 and 308 of CrPC and has erred fundamentally in holding that the statement of the approver is required to be recorded, before deciding on the issue of revocation of the pardon extended to him. R.K. Handoo on behalf of the respondent submitted that at the first instance, the application of the petitioner, before the learned Special Judge, was itself not maintainable, as the CrPC does not contemplate revocation of pardon tendered to an accused; pardon, once granted cannot be revoked, cancelled or withdrawn.

Perusing the rival contentions and referring to various Supreme Court decisions, especially State v. Jagjit Singh, 1989 Supp (2) SCC 770 and Bipin Behari Sarkar v. State of West Bengal, AIR 1959 SC 13, the Court observed that examination of the approver, as a witness under Section 306 (4) is intended, inter alia to ascertain whether the approver is abiding by the conditions of his pardon, or is an untrustworthy witness. It was further observed that a holistic and conjoint reading of Sections 306 and 308 reveals an “inexorable sequence”, in which the most mandatory step is the examination, of the approver, as a witness, under Section 306 (4).

The Court therefore observed that ex facie, the view adopted by the Special Judge in the impugned order is in sync with the law laid down in multiple Supreme Court decisions and as well as the statutory scheme of Sections 306 and 308 of the CrPC, and does not merit any interference. Thus endorsing the view expressed by the Special Judge, the Bench therefore decided to dismiss the instant petition. [Directorate of Enforcement v. Rajiv Saxena, 2020 SCC OnLine Del 719 , decided on 08-06-2020]

Case BriefsHigh Courts

Calcutta High Court: Rajasekhar Mantha, J., has referred to three important questions, which in the Court’s opinion are required to be settled by an appropriate larger bench.

In the instant case, the Investigating Officer (“IO”) had prayed for a voice sample of the petitioner to enable FSL experts to compare the same with certain evidence that was already in custody of the IO. The Magistrate has allowed the IO’s prayer and directed the petitioner to provide a voice sample before the FSL expert. Aggrieved thereby, the petitioner filed the instant revision.

Notably, the petitioner was not named as accused in the FIR and the investigation was still on.

The petitioner argued that as the law presently stands, a witness cannot be compelled to give a voice sample. Per contra, the State relied on the decision of the Supreme Court in Ritesh Sinha v. State of U.P., (2019) 8 SCC 1, to contend that if an accused can be compelled to give voice sample, as held in the said case, then a witness who is not an accused, at an investigation, can be definitely asked to give voice sample.

Considering the submissions of the parties, the High Court was of the view that the following questions require to be settled by an appropriate larger Bench:

“(a) Whether Section 311-A read with Section 53 and 53-A CrPC along with Section 5 of the Identification of Prisoners Act, 1920, empowers a Magistrate to compel a witness in course of investigation into an FIR, to give voice sample in the aid of such investigation?”

(b)Can the principle laid down by the Supreme Court in the Ritesh Sinha v. State of U.P. be applied also to witnesses in course of investigation?

(c)Whether a witness even in course of an investigation can be compelled to give evidence, that could subsequently emerge as a ground for including him as an accused in the final investigation report?”

The High Court directed the matter to be placed before the Chief Justice for reference to an appropriate Bench.

In the meantime, however, the petitioner was ordered to give voice samples to the IO in the presence of the FSL expert. It was directed that the said sample shall be kept sealed and unopened, and the parties shall abide by the result of the reference proposed. [Mukul Roy v. State of W.B., 2019 SCC OnLine Cal 4341, decided on 12-12-2019]

Case BriefsHigh Courts

Delhi High Court: V. Kameswara Rao, J., dismissed the present petition in respect to the appearance of Nitish Kumar, Chief Minister of Bihar, as a witness in the copyright infringement matter regarding the violation to authorship rights of the literary work titled as “Special Category Status: A Case for Bihar”.

Facts leading to contentions stated below

Plaintiff was a Senior Research Scholar pursuing his Ph.D. programme in Economics at Jawaharlal Nehru University. Plaintiff registered for his Ph.D. in July 2006 after successfully completing his Masters in Arts and M.Phil. Topic of his thesis was “Role of State in Economic Transformation: A case study of Contemporary Bihar”.

Defendant 2 came to know about plaintiff’s research work through plaintiff’s guide and when the plaintiff was in Bihar for his research work, defendant 2 approached the plaintiff and made a request that while doing his own survey, if the plaintiff could fill up certain additional forms relating to “Bihar State Land Reform Commission’s research work” then in return the defendant 2 would take care of the expenses of plaintiff’s field work on actual basis.

Defendant 2 being aware of the plaintiff’s research area, suggested to the plaintiff that his personal research could be used for supporting the cause of Bihar and requested the plaintiff to give his study/research material which would be used to support the PIL pending in the Patna High Court.

Trusting defendant 2 and in the larger public interest, the plaintiff gave his research work in soft copy to defendant 2.

Later, when the plaintiff was in Delhi, he was shocked by reading newspaper reports wherein it was stated that “the original work of the plaintiff” viz. “Special Category Status: A Case for Bihar” was being published by ADRI and the Centre for Economic Policy and Public Finance as a book authored by Bihar Chief Minister, Nitish Kumar.

Contentions

Plaintiff submits that witness 1 in Part C of his list of witnesses which was also served to the defendants was Nitish Kumar, present Chief Minister of Bihar. He is also defendant 1 in the present suit.

According to the plaintiff, the said witness is significant and will have a material impact in establishing the case of the plaintiff with regard to the violation to authorship rights of the literary work titled as “Special Category Status: A Case for Bihar” in which the defendant 1 is the principal actor.

Plaintiff further submits that though the witness is also defendant 1, there is no bar under the CPC to examine the opposite party as his own witness, more particularly when defendant 1 is included in the list of witnesses.

Senior Counsel, P.D. Gupta representing defendant 1, opposed the prayer on the ground that application preferred by the plaintiff is barred by limitation under Order 16 Rule 1 itself. He also submitted that the present application is an abuse of process inasmuch as Nitish Kumar/defendant 1 can be cross-examined by the plaintiff at his evidence stage.

Cases relied on by the plaintiff in support of his contentions

Plaintiff by contending that there is no bar on the right of a party to summon or examine another party including the opposite party to give evidence as his witness under CPC, had relied upon a judgment of the Karnataka High Court in the case of Syed Yasin v. Syed Shaha Mohd. Hussain, AIR 1967 KANT 37.

Plaintiff, along with a list of cases, relied on a Supreme Court Judgment in Kokkanda B. Poondacha v. K.D. Ganapathi, (2011) 12 SCC 600, wherein it was held that,

 “oblique motives of parties should be looked into by the Court while deciding application for summoning of witnesses under Order 16 Rule 1.”

Karnataka High Court Judgment in Krithi Constructions v. K. Thippa Reddy, ILR 20156 Kar 122, was also relied on, in which it was held that,

“Though it is true that the party to the suit can examine another party to the suit as a witness, such procedure has to be permitted in rarest of rare cases”

High Court’s analysis and observation

Court noted that the dispute in the suit is whether the defendants have violated the copyright in the original work of the plaintiff. The witness Nitish Kumar is defendant 1 in the case. Issues that were framed in the suit were:

  1. Whether the plaintiff is the owner of the copyright in the work “Special Category Status: A Case for Bihar” and if so, whether the defendants are infringing the copyright of the plaintiff?
  2. Whether the plaintiff is entitled to damages, if so, of what amount? 3.
  3. Whether the work “Special Category Status: A Case for Bihar is a Government publication of the defendant no. 4 and accordingly whether the defendant no. 4 is entitled to relief filed in its counter claim against the plaintiff?
  4. Relief

The Court stated that it is clear from the facts and circumstances of the case that on Issue 1, the onus is on the plaintiff to prove that he is the owner of the copyright. Vide the written statements the defendants are contesting the said position and the stand is at variance.

It was further stated that,

Each of the parties shall have to enter the witness box to prove his case. The opposite party shall naturally cross-examine the party in the witness box. So it follows, that defendant 1, coming as a witness, shall in his evidence make good the stand taken by him in his written statement. He shall not prove the case of the plaintiff.

Thus the reasoning of the plaintiff calling defendant 1 as a plaintiff’s witness being so-called “principal actor” and a bona fide act is not convincing.

Hence in the Court’s opinion, the present application was filed only to put pressure on the Chief Minister of State of Bihar as he was being summoned, not in the normal course, but as plaintiff witness without cogent reason as such is not bona fide nor in the interest of justice.

In the above view, the present application has been dismissed. [Atul Kumar Singh v. Nitish Kumar, 2019 SCC OnLine Del 11084, decided on 13-11-2019]

Case BriefsHigh Courts

Bombay High Court: Sadhana S. Jadhav, J. allowed an appeal filed against the decision of the trial court whereby the appellant was convicted for offences punishable under Section 376 IPC (punishment for rape) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (punishment for penetrative sexual assault).

The appellant was accused of committing rape upon the prosecutrix on pretext of marriage. He was tried and convicted by the trial court as aforesaid.

Arjun Rajput, counsel for the appellant assailed the judgment of the trial court. Per contra, S.S. Pednekar, Assistant Public Prosecutor appearing for the State supported the impugned judgment.

The High Court noted that evidence of the prosecutrix, on which appellant’s conviction was primarily based, did not inspire confidence. Also, several witnesses turned hostile. The Court stated, “witness may lie, but the circumstances will not lie.” As per the FIR, the appellant and prosecutrix had already made a plan to go out on the day of the alleged incident. It was observed, “The papers of investigation would indicate that the appellant was in love with the prosecutrix and that has led to initiation of criminal prosecution. The parents of the prosecutrix and that has led to initiation of criminal prosecution. The fact that the prosecutrix had voluntarily missed the classes and decided to accompany him would be sufficient to indicate that she was not forced to accompany the appellant.”

The Court noted further, “The appellant seemed to be so frustrated with the criminal prosecution that he made no efforts even to defend himself. In his statement under Section 313 CrPC he has only stated that he does not wish to speak about the incident. The papers of investigation would further indicate that the appellant felt betrayed by the prosecutrix. That it was a love affair between two youngsters, which had landed in criminal prosecution of a young boy.”

In such circumstances, the Court allowed the appeal and set aside the conviction and sentence awarded to the appellant by the trial court. [Gorakshya Arjun Mahakal v. State of Maharashtra, 2019 SCC OnLine Bom 520, dated 13-03-2019]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of S.B. Shukre and S.M. Modak, JJ. allowed a set of criminal appeals filed against the judgment of Sessions Judge whereby the appellants were convicted under Section 376 (2)(n) IPC and under various sections of Protection of Children from Sexual Offences Act, 2012 and Prohibition of Child Marriage Act, 2006.

The appellants were the husband, parents, neighbours, etc. of the victim. The prosecution alleged that the victim was married to her husband when she was 15 years of age. She was pressurised by her parents. Soon after the wedding, the husband consummated the marriage with the victim. She was not able to resist the advances and acts of the husband who was 29 years of age. One day, on the pretext of celebrating he birthday with her parents, the victim ran away and lodged an FIR against the husband, her parents and other accused. The matter went to trial and the court convicted the accused as aforesaid. Aggrieved thereby, the convicts preferred the present appeals.

Mahesh Rai and A.A. Dhawas, Advocates for the appellants vehemently argued against the conviction and seriously disputed age of the victim at the time of the incident. They relied on evidence of one Vasanti, an employee of Municipal Council, Chandrapur. Notably, Vasanti was a prosecution witness but her evidence wherein she brought birth register proved that the victim was born in 1994 and not in 1999 as claimed by the prosecution. Thus, at the relevant time, the victim was more than 18 years of age. Therefore she could not be treated as a ‘child’ for the purpose of either POCSO or the Child Marriage Act.

The High Court, noting the above evidence stated that the same was reliable. It observed, “After having examined its own witness and after having not declared the witness with the permission of the Court as hostile to the prosecution, it is not permissible under the law for the prosecution to disown its own witness”. On the aspect of other evidence especially the ossification test, the Court relied on Mahadeo v. State of Maharashtra, (2013) 14 SCC 637 and State of M.P. v. Anoop Singh, (2015) 7 SCC 773. The Court stated, “The ossification test would come into picture only when the documentary and other evidence brought on record by the prosecution does not convincingly or beyond reasonable doubt establish the age of the victim, wherever it is relevant”. Thus, the victim not being a ‘child’ at the relevant time, the appellants were acquitted of offences under POCSO and Child Marriage Act. Further, regarding Section 376(2)(n) IPC, it was noted that the victim admitted that after the marriage she did not object to the acts of the husband and therefore even that offence was not established. Hence, the appellants were acquitted of all the charges. [Vimalbai Manohar Doballiwar v. State of Maharashtra, 2018 SCC OnLine Bom 6956, dated 19-12-2018]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: A Single judge bench comprising of Alexander Thomas, J. allowed a petition seeking mandamus against Marriage Registrar and directed him to correct errors in petitioner’s marriage certificate in the presence of two witnesses and a signed declaration of his wife expressing her consent thereto.

The petitioner’s wife was employed in USA and he had to submit his papers before the immigration authorities who advised him that the name in his marriage certificate should be the same as in his birth certificate and passport. In order to correct his name as contained in his marriage certificate, the petitioner submitted an application before Marriage Registrar under Section 49 of the Special Marriage Act, 1954 which stipulates correction of erroneous entries in a marriage certificate to be made in the presence of persons married.

The petitioner submitted that his wife was residing in USA and it was not practically feasible for her to come down to Kerala only for the purpose of taking action in relation to his application. It was averred that Section 49(1) permits taking of action for correction of erroneous entries even in the absence of the parties, in the presence of two other credible witnesses.

In view of the above, the High Court held that in case the petitioner’s wife cannot come over to Kerala, then a declaration signed by her may be submitted before the

Marriage Registrar stating that she fully concurs with the petitioner’s for correction of entries in their marriage certificate. Further, it should be ensured that two credible witnesses, preferably parents of the petitioner or that of his wife or any other responsible relatives in their family be present before the Marriage Registrar for effectuating action as envisaged in Section 49(1) of the Act.

Accordingly, a mandamus was issued to the respondent directing consideration of the petitioner’s request.[Rinilraj Raju v. Department of Registration, 2018 SCC OnLine Ker 4895, decided on 31-10-2018]

 

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Sanjeev Sachdeva, J.allowed a criminal revision petition filed against the judgment of the Appellate Court whereby it confirmed the order of conviction under Section 304-A and 279 IPC passed by the trial court against the petitioner while reducing the sentence therefor.

The petitioner was accused of causing death of the deceased due to his rash and negligent driving. On the fateful night, according to the witnesses, the petitioner was driving his vehicle at a high speed which hit the deceased who was crossing the road. As a consequence, the deceased succumbed to the injuries sustained. The petitioner was charged, tried and convicted by the trial court under the aforementioned sections. He challenged the said order before the Appellate Authority which, while reducing the sentence imposed, confirmed the order of conviction. Aggrieved thereby, the petitioner preferred the instant petition.

The High Court, after perusal of the record, noted that the prosecution mainly relied on witness testimonies. referring to earlier decisions, the Court observed that the witnesses can no doubt depose as to the manner of driving or speed of the vehicle; however, they cannot render an opinion as to rashness and negligence. It was further noted that there was no evidence to prove whether the vehicle was being driven in a manner which may be construed as rash and negligent by the court. It was held that high speed, by itself, in every case, cannot be a sufficient criterion to bring home guilt of the driver for rash and negligent driving. There was no evidence as to skid marks, type of injuries sustainedly the deceased, etc. In such circumstances, the Court gave benefit of the doubt to the petitioner and acquitted him of all the charges. The petition was allowed and the order impugned was set aside. [Kishore Chand Joshi v. State,2018 SCC OnLine Del 12337, decided on 12-11-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of B.R. Gavai and Sarang V. Kotwal, JJ. dismissed an appeal filed against the judgment of the trial court whereby the appellant was convicted for the offence punishable under Section 302 IPC.

The appellant was convicted for the murder of his son. On the fateful day of the incident, wife of the appellant came back home from selling fish and saw that her husband and her son were quarreling as the husband had given the food meant for her, to some other person. Later, the convict and his wife went to sleep on the mezzanine floor of the house while the son was sleeping on the ground floor. The wife woke up on hearing the cries of his son, she ran to the ground floor and saw that her husband was assaulting her son with an iron rod which resulted in death of the son. When the wife tried to stop the appellant, she too was hit by the rod. The appellant threatened her not to tell this to anybody or else she had to face consequences. Subsequently, an FIR was registered and the appellant was convicted by the trial court under Section 302. Aggrieved thereby, the appellant preferred the instant appeal.

The High Court noted that the wife (PW 1) was the star witness in the case. No doubt, in her testimony, she did not fully support the prosecution case. However, the Court observed, that it is a well settled position of law that such part of the evidence of a hostile witness which is found to be trustworthy van always be taken into consideration. In the instant case, PW 1 had supported the prosecution case with regard to earlier incidents of quarrel, she and the appellant going to mezzanine floor. Her evidence of seeing the appellant with iron rod standing near the deceased had gone unchallenged, which was also corroborated by her sister and niece who came running to the house hearing the cries of PW 1. Furthermore, the burden under Section 106 of the Evidence Act shifted on the appellant to prove that how the injuries were sustained by the deceased. The explanation given by the appellant that the deceased fell from the mezzanine floor and thereby sustained injuries were found to be false in light of the evidence of medical expert. In such circumstances, the Court dismissed the appeal. [Babubhai Laxman Bhamaniya v. State of Maharashtra,2018 SCC OnLine Bom 2634, dated 09-08-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of G.S. Sistani and C. Hari Shankar, JJ. dismissed an appeal filed by the appellant-husband against the order of the family court whereby it granted a decree of divorce in favour of the respondent-wife.

It was contended by appellant that he wasn’t given the opportunity to recall PW 1 for fresh cross-examination as the evidence recorded by the family court was self-destructive attributable to unprofessional approach of the earlier counsel for the appellant. The appellant had filed an application under Section 151 read with Order 18 Rule 17 CPC which was dismissed as withdrawn. The present appeal was filed under Section 19 of the Family Courts Act, 1984.

The High Court considered the submissions made by the parties. It referred to Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410 and K.K. Velusamy v. N. Palanisamy(2011) 11 SCC 275. The Court observed that Order 18 Rule 17 CPC is to be exercised sparingly. The provision is not intended to enable the parties to recall any witness for further examination. It is primarily to enable the Court to clarify any issue or doubt by recalling any witness either suo motu or on application of any party so that the Court can itself put questions and elicit answers. Moreover, in the present case, the application filed by the appellant was withdrawn when it came up for hearing. Once the application was dismissed as withdrawn, the appellant could not complain that he wasn’t given the opportunity to re-examine the witness. In such circumstances, the appeal was dismissed. [Rajiv Mehta v. Savita Mehta,2018 SCC OnLine Del 10936, dated 20-08-2018]

Op EdsOP. ED.

Rule 13 of Chapter II of Part VI of the Bar Council of India Rules under the Advocates Act, 1961 specifically state that:

  1. An advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness, and if being engaged in a case, it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an advocate if he can retire without jeopardising his client’s interests.

Section 120 of the Evidence Act, 1872 only deals with who may testify as a witness and does not lay down any restriction or restraint on the advocate to be a witness in the case where he is acting as an advocate. A counsel for a party should not be his witness in the same case without retiring from the case as counsel. It is a sound principle that a person who is appearing as counsel should not give evidence as witness.

If, however, in the course of proceedings it is discovered that the advocate is in a position to give evidence and it is desirable that he should do so, his proper course is to retire from the case in his professional capacity. Failure to do the same would amount to professional misconduct under Section 35 of the Advocates Act, 1961. However, if the advocate knew or had reason to believe since the very beginning that he will be an important witness in the case, he has a choice either to appear as a witness or to appear as an advocate. Once he exercises the said choice and chooses to be an advocate in the case, then he cannot be examined as a witness on behalf of the opposite side by retiring from the suit at a subsequent stage.

It is against the etiquette of the Bar that a member of the profession should give evidence in the case in which he is engaged as counsel and no self-respecting counsel would be prepared to conduct a case for the defence after having been called as a witness for the prosecution. However, a practitioner, who is acting on behalf of one of the parties and conducting litigation for him is debarred under Section 126 of the Evidence Act, 1872 to disclose the communications made to him without the express consent of his client.

If, however, a court comes to the conclusion that a trial will be embarrassed by the appearance of an advocate who has been called as witness by the other side, and if, notwithstanding the court’s expression of its opinion, the advocate refuses to withdraw, in such a case, the court has inherent jurisdiction to require the advocate to withdraw. Nevertheless, a counsel is not incompetent to give evidence whether the facts to which he testifies occurred before or after his retainer. It should be noted that merely because the name of an advocate appears in the list of witnesses of opposite party, his vakalatnama does not automatically get relinquished.

However, recently in Kokkanda B. Poondacha v. K.D. Ganapathi[1] the Supreme Court has held that one of the parties in a suit cannot cite the advocate representing the other side as a witness in the list without indicating the purpose for the same. This will ensure that the other side is not deprived of the services of the advocate on frivolous grounds.

Conclusion

Therefore, in light of the above, an advocate can appear as witness in certain instances. However, it should be noted that an accused is entitled to be defended by a counsel of his choice and the prosecution cannot fetter that choice merely by serving subpoena on the advocate to appear as a witness. Furthermore, the Court is also bound to see that the due administration of justice is not, in any way, embarrassed by permitting the advocate to appear as witness.

 

* Associate, Khaitan & Co., New Delhi, email – susanah.naushad@khaitanco.com

[1]  (2011) 12 SCC 600.

Case BriefsHigh Courts

Punjab and Haryana High Court: The High Court of Punjab and Haryana decided on the matter arising before it from a civil suit pending before the Court of Civil Judge (Junior Division), Samrala, the issue whether Sucha Singh (petitioner witness), who was residing at USA, can be allowed to be examined by way of Video Conferencing.

The Court vide order dated 16.10.2015 passed in CR 6571 of 2014 allowed the same stating that the witness can be confronted with the documents with close proximity to the camera. Petitioner was given liberty to choose a public authority where such facility was available and inform the Court. Alternatively, the petitioner was given option to identify the Indian Consulate in the nearest place from his residence and produce the Court order to secure the permission for hearing. The petitioner was to make himself available during the court working hours in India and give a date which is mutually convenient to the Court and the Consulate or the Public Office.

The Court was of the view that the evidence of the petitioner was very material and therefore his evidence was required to be recorded. However, noticing the difference of time between India and USA, the Court was of the opinion that approaching the Public Authority at night time to allow video conferencing facility was unfeasible. The Court opined that as video conferencing is now available through many applications like Facetime, Whatsapp, Skype etc. there is no necessity of approaching the nearest Consulate.

The Court allowed examination of the petitioner by way of video conferencing through Mobile or Computer on an application, and the time and date of the same would be communicated to the trail court. The witness is to be identified by the opposite party or any other person nominated by them. The Court further ordered supply of photocopy of any document which is sought to be put to the witness in advance to the opposite party and witness himself, so that he may answer on the said document. [Sucha Singh v. Ajmer Singh, 2018 SCC OnLine P&H 637, order dated 17-05-2018]