Rathinraj Joseph and K. J. Rafi v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V`** ``` TUESDAY,THE13[TH]DAYOFJUNE2023/23RDJYAISHTA,1945 ``` ## **`CRL.MC NO. 4599 OF 2023`** ``` INCC364/2016OFJUDICIALMAGISTRATEOFFIRSTCLASS-II,ERNAKULAM PETITIONERS/PETITIONERS/ACCUSED: ``` ``` 1RATHINRAJJOSEPH AGED32YEARS S/O.RAFI,KANNAMPUZHAHOUSE,THRISSUREAST.P.O., - KIZHAKKUMPATTUKARA,THRISSURDISTRICT,PIN680005. 2K.J.RAFI AGED64YEARS S/O.JOSEPH,KANNAMPUZHAHOUSE,THRISSUREAST.P.O., - KIZHAKKUMPATTUKARA,THRISSURDISTRICT,PIN680005. BYADVS. DINESHMATHEWJ.MURICKEN VINODS.PILLAI NAYANAVARGHESE MOHAMMEDTHAYIBN.M. AHAMMADSACHINK. ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATEOFKERALA REPRESENTEDBYTHEINSPECTOROFPOLICE,CENTRALPOLICE STATION,THROUGHTHEPUBLICPROSECUTOR,HIGHCOURTOF - KERALA,ERNAKULAM,PIN682031. ``` ``` SRIM.PPRASHANTHPP ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 13.06.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C No. 4599 of 2023 2 ## **ORDER** The petitioners have approached this Court being aggrieved by the order dated 7.6.2023 in C.M.P No.1661 of 2023 in C.C No.364 of 2016 of the - Judicial First Class Magistrate Court II, Ernakulam. 2. C.M.P No.1661 of 2023 was filed stating that while cross-examining PW4, the counsel appearing for the accused had brought out certain omissions and contradictions in his evidence. From the final report, the only deed attributed to CW11, the Sub Inspector of Police, Central Police Station was the registration of the FIR. The entire investigation and questioning of witnesses were carried out by CW12, the Investigating Officer. When CW12 was examined, the omissions and contradictions brought out from the evidence of PW4 were put to him to discredit the prosecution witness. However, PW10 responded by saying that the statement of PW4 was recorded by CW11 who was examined as PW9 and not by him. In the said circumstances, it has become necessary to recall PW9 so as to prove the omissions and contradictions. 3. The learned Magistrate was of the view that though PW10 was examined on 24.11.2022, the application was filed only on 25.05.2023 and that too after the examination of the accused under Section 313 of the Code. By holding that the application was filed only to drag and delay the proceedings, the same was dismissed. Crl.M.C No. 4599 of 2023 3 4. I have considered the submissions. 5. I find from the final report that CW 11 was cited only to prove the registration of the FIR. It was only when the Investigating Officer was examined as PW10 that the fact that the 161 statement of PW4 was recorded by PW9 was revealed. As rightly submitted by the learned counsel appearing for the petitioners, the contradictions and omissions brought out subject to proof while cross-examining PW4 must be put to the officer who recorded the statement to prove the same. 6. A Division Bench of this Court in **Thankappan Mohanan v. State of Kerala** [1990(1)KLT 21] had occasion to detail the procedure to be adopted in following Section 145 of the Evidence Act. It would be worthwhile to extract paragraph Nos. 7 to 12 of the judgment wherein, U.L Bhat, J has lucidly explained the procedure to be followed. 7. We do not think any hard and fast rule can be laid down in regard to the procedure to be adopted in following S.145 of the Evidence Act, with particular reference to case diary statement. Case diary statements are recorded under S.161(3) of the Code of Criminal Procedure. Sub-section (1) of S.162 states, interalia, that such statement shall not be used for any purpose, save as provided in any inquiry or trial in respect of any offence under investigation at the time when such statement was made. The proviso permits use of the statement, if duly proved, by the accused, and with the permission of the court by the prosecution, to contradict such witness in the manner provided by S.145 of the Evidence Act. S.145 of the Indian Evidence Act is in two parts. The first part permits cross-examination of the witness as to his previous statement in writing when such writing being shown to him or being proved. The second part requires that if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts which are Crl.M.C No. 4599 of 2023 4 to be used for the purpose of contradicting him. Reading S.162(l) proviso and S.145 together, it is clear that a witness may be cross-examined as to his case diary statement without such statement being shown to him or being proved; however if the intention is to contradict him by the writing his attention must be called to those parts of it which are to be used for the purpose of contradicting him before the writing can be proved. Sometimes objection is raised regarding making the entire CD. statement or large portions of it. There cannot be a universal rule against such a procedure. Whether in a given case it amounts to substantial compliance of S.145 depends on the situation in each case. 8 . In Bhagwan Singh v. State of Punjab (A.I.R. 1952 S.C214), it was seen that the entire previous statement (it was not a case diary statement) was put to the witness point by point and passage by passage. One of the passages was reproduced in inverted commas and the Supreme Court concluded therefrom that the passage in inverted commas must have been read out from the statement. Immediately after the witness had been questioned about each separate fact point by point, the whole statement was read out to him and he admitted the same. The Supreme Court observed: “Now this procedure may be open to objection when the previous statement is a long one and only one or two small passages in it are used for contradiction -that may, in a given case, confuse a witness and not be a fair method of affording him an opportunity to explain but in the present case the previous statement is a short one and the witness was questioned about every material passage in it point by point. Accordingly, the procedure adopted here was in substantial compliance with what S.145 requires. There can be no hard and fast rule. All that is required is that the witness must be treated fairly and be afforded a reasonable opportunity of explaining the contradictions after his attention has been drawn to them in a fair and reasonable manner. We are satisfied that that was done here. The matter is one of substance and not of mere form.” In Tahsildar Singh and another v. State of U.P. (A.I.R. 1959 S.C.1012) the Supreme Court observed:- “If he admits his previous statement, no further proof is necessary; if he does not admit, the practice generally followed is to admit it subject to proof by the police officer.” Crl.M.C No. 4599 of 2023 5 9 . In Mohanan’s case (1989(1) KLN 462) reliance has been placed on the decision in Krishnan Nair v. State of Kerala (1971 K.L.T. 326). That was a case in which statements themselves were not proved or marked and there was nothing to show that the witness were confronted with the recorded statements as such, or the relevant portions thereof. Witnesses were asked whether they had not made certain statements to the police. These statements put to them were recorded in inverted commas in the depositions. They denied having made the statements. These very statements, again in inverted commas, were put to the Investigating Officer and he was asked whether the witnesses had not made them in the course of investigation under S.162 of the Code of Criminal Procedure. Dealing with this situation the court observed:- “This appears to us to be scant compliance with the requirements of S.145 of the Indian Evidence Act and of S.162 of the Criminal Procedure Code..................if it is intended to contradict the witness under the second part of S.145 of the Indian Evidence act, he should be confronted with the concerned portions of the writing..............The Investigating Officer did not even offer formal evidence that the statement within inverted commas put to him and to the witnesses were taken from the recorded statements under S.162 of the Criminal Procedure Code. The statements themselves were not marked. We are satisfied that this was a serious defect committed by the prosecution and by the Sessions Judge.” (emphasis supplied) Obviously in the above case relevant portions of the statement had been fully extracted in the deposition within inverted commas. But witness’s attention was not drawn to the fact that these statements appeared in his case diary statement recorded in writing. Relevant portion was also extracted within inverted commas in the deposition of the Investigating Officer. But he did not state that that portion was taken from the recorded statements. Portions of the recorded statements themselves were not marked. The court objected to this procedure obviously because there was nothing on record to show that the portions appearing within inverted commas were as a matter of fact found in the recorded statement. This decision will not help us in the particular controversy arising in this case. 10 . In George v. State (1988(1) KLT 256) Padmanabhan, J. observed that “The exact portion sought to be contradicted must be put to the witness and recorded in the deposition and it will have to be marked Crl.M.C No. 4599 of 2023 6 subject to proof by the Investigating Officer.” When the learned Judge referred to “marking” the reference obviously was to marking statement in writing as a document. The learned judge had no occasion to consider whether there was anyway of bringing the statement in the deposition without recording the relevant portion of the statement. In Sethumadhavan v. State (1988(1) K.L.T. Sh.N. page 9) statements given by the witnesses were straightaway marked as exhibits and were later relied on by the court. One of us (Balakrishnan, J.) noticed that “sometimes the statements which have been denied by the witness are provisionally marked for convenience to be later proved through the investigating officer who recorded the same” and held that “the cross-examiner must read out to the witness the relevant portion of the statement recorded which is alleged to be contradictory to his statement in court and give him an opportunity to reconcile the same”. In Imbayi v. State (1989(1) K.L.T.956) the Prosecutor brought the entire case diary statement marked though the statements in full were not incorporated in the depositions. Only the beginning and end were put in inverted commas. Significantly the case diary statements contain contradicted and uncontradicted portions and the portions sought to be contradicted were not put to the witnesses and were not duly proved by putting to the Investigating Officer. He was made to swear generally that the witness stated as seen in such and such exhibits. Nevertheless, the court took the view that it was not a case of non-compliance in substance or that prejudice had resulted. 11 . One of us (Bhat, J.) in A.H. Abdulla v. State of Kerala (I.L.R. (1981) 1 Kerala 508) held that:- “This does not mean that there is only one way of bringing on record a contradiction contained in a previous statement recorded under S.161(3) of the Code. There may be several ways of doing it. One way would be to read out the specific portion from the statement to the witness and incorporate that portion specifically within inverted commas in the deposition. That would be the ideal way of doing it. Some courts adopt the method of extracting only first few words and the last few words of the previous statement and marking the relevant passage. Some other courts, instead of extracting the portion in the deposition, merely mark the portion in the document containing the statement and allow it to be read out or shown to the witness.” However, in that case when the Investigating Officer was examined specific Crl.M.C No. 4599 of 2023 7 portions of the statement were not read out and extracted in the deposition, nor were portions marked and put to him. Therefore it was held that there was non compliance. 12 . On a careful consideration of the above decisions, we are unable to find any differences in approach. As observed by the Supreme Court in Bhagawan Singh’s case (AIR 1952S.C. 214) what is really necessary is substantial compliance of the requirements of S.145 of the Indian Evidence Act and the purpose of the second part of S.145 is to treat the witness fairly by giving him a reasonable opportunity to explain the contradictions after his attention has been drawn to them in a fair and reasonable manner. The matter is one of substance and not of mere form. Previous statement if denied must be properly proved through the person who recorded the statement. The court must be satisfied that there is a contradiction between the previous statement in writing and the statement made in court. When that portion has been brought to the attention of the witness he is given a reasonable opportunity to explain the contradiction and the previous statement is duly proved. The question is how and in what manner the deposition should reflect these factors. The ideal procedure would be to record and extract in the deposition relevant previous statement, whether it be a long or a short passage. But it is really unnecessary to subject the overworked Sessions Judges with the task of recording the entire portions. There is nothing wrong in principle if instead of writing the relevant portion of the statement, only the commencing words and the ending words are recorded within inverted commas to indicate the particular passage in the written case diary statement and that portion is marked subject to proof and the deposition indicates that the relevant portion has been read out to the witness. There is no reason why the same procedure should not be adopted when the previous statement is attempted to be proved through the Investigating Officer; there is nothing wrong in the officer deposing that the witness had stated to him as seen stated in such and such exhibit (already marked). What is necessary is that the deposition shows that the making of the previous statement is proved by him and that that statement is seen in the recorded statement in the case diary. When the relevant portion is marked and the Investigating Officer refers to that portion or exhibit, ordinarily that is sufficient to show that he has proved the previous statement which is part of the statement in writing. We are satisfied that in this case the procedure followed is in substantial compliance with the requirements of S.145. (emphasis supplied) Crl.M.C No. 4599 of 2023 8 7. In order to prove the omissions and contradictions brought out from the evidence of the prosecution witness, it was necessary to bring it to the notice of the police officer who recorded the same. In the case on hand, the petitioners became aware of the fact that the 161 statement was recorded by the SI only when the investigating officer was examined. It appears that the learned Magistrate has overlooked the prejudice that is likely to be caused to the accused by rejecting the application filed under Section 311 of the Cr.P.C In that view of the matter, this petition is allowed. Annexure A7 order passed by the learned Magistrate is set aside. The learned Magistrate is directed to allow Annexure A4 application and recall PW9 to enable the petitioners to prove the contradictions and omissions in accordance with law. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** Sru Crl.M.C No. 4599 of 2023 9 ## **`APPENDIX OF CRL.MC 4599/2023`** |`PETITIONERS ANNEXURES`|| |---|---| |`Annexure A1`|`TRUE COPY OF THE CHARGE SHEET IN`| ||`C.C.NO.364/2016 ON THE FILE OF JUDICIAL FIRST`| ||`CLASS MAGISTRATE COURT-II, ERNAKULAM ARISING`| ||`OUT OF CRIME NO.389/2016 OF ERNAKULAM CENTRAL`| ||`POLICE STATION DATED 17.03.2016.`| |`Annexure A2`|`TRUE COPY OF THE DEPOSITION OF PW9 DATED`| ||`19.08.2022 IN C.C.NO.364/2016 ON THE FILE OF`| ||`JUDICIAL FIRST CLASS MAGISTRATE COURT-II,`| ||`ERNAKULAM.`| |`Annexure A3`|`TRUE COPY OF THE DEPOSITION OF PW10 DATED`| ||`24.11.2022 IN C.C.NO.364/2016 ON THE FILE OF`| ||`JUDICIAL FIRST CLASS MAGISTRATE COURT-II,`| ||`ERNAKULAM.`| |`Annexure A4`|`TRUE COPY OF C.M.P.NO.1661/2023 IN`| ||`C.C.NO.364/2016 ON THE FILE OF JUDICIAL FIRST`| ||`CLASS MAGISTRATE COURT-II, ERNAKULAM DATED`| ||`25.05.2023.`| |`Annexure A5`|`TRUE COPY OF THE OBJECTION IN`| ||`C.M.P.NO.1661/2023 ON THE FILE OF JUDICIAL`| ||`FIRST CLASS MAGISTRATE COURT-II, ERNAKULAM`| ||`DATED 01.06.2023.`| |`Annexure A6`|`TRUE COPY OF C.M.P.NO.1634/2023 IN`| ||`C.C.NO.364/2016 ON THE FILE OF JUDICIAL FIRST`| ||`CLASS MAGISTRATE COURT-II, ERNAKULAM DATED`| ||`22.05.2023.`| |`Annexure A7`|`CERTIFIED COPY OF THE ORDER IN`| ||`C.M.P.NO.1661/2023 IN C.C.NO.364/2016 PASSED`| ||`BY THE JUDICIAL FIRST CLASS MAGISTRATE`| ||`COURT-II, ERNAKULAM DATED 07.06.2023.`|