State of Kerala v. Ramadas

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 9[TH] DAY OF DECEMBER 2021 / 18TH AGRAHAYANA, 1943 CRL.MC NO. 3840 OF 2021** **CRIME NO.520/2012 OF Adoor Police Station, Pathanamthitta SC 586/2018 OF THE SESSIONS COURT,PATHANAMTHITTA** ## **PETITIONER/PLAINTIFF** STATE OF KERALA, REPRESENTED BY THE STATE PUBLIC PROSECUTOR. BY AMBIKA DEVI, SPL. PUBLIC PROSECUTOR ## **RESPONDENT/DEEFENDANT** RAMADAS, S/O. CHANDRASEKHARAN NAIR, KULANGARA MELETHIL HOUSE, MULLURKULANGARA, PARAKKODUMURI, ADOOR VILLAGE, PATHANAMTHITTA.-691523 BY ADVS. MANSOOR.B.H. SAKEENA BEEGUM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24.11.2021, THE COURT ON 09.12.2021 DELIVERED THE FOLLOWING: Crl.M.C.3840 of 2021 2 ## ORDER Dated : 9[th] December, 2021 1. The State through the Special Public Prosecutor filed this Criminal M.C against the refusal of the Sessions Judge, Pathanamthitta during the examination of PW1 in S.C.586/2018 to record the contradictory statements of PW1 who retracted from the statements given to the police under Section 161 of the Code of Criminal Procedure, 1973. 2. The prosecution allegation against the respondent/accused is that, the accused who is not a member of schedule cast/schedule tribe knowing that the de facto complainant is a minor belonging to Schedule cast community made her believe that he would marry her and took her to a house at Parakkode on 19.3.2012 and subjected her to repeated sexual intercourse from 8.00 pm on 19.3.2012 till 6.00 am on 20.3.2012. Upon the statement given by the de facto complainant Crime No.520/2012 of Adoor Police Station in Pathanamthitta District was registered against the respondent/accused on 23.3.2012 under Section 376 IPC and Section 3(1)(xi), 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (in short 'SC/ST (POA) Act'). Crl.M.C.3840 of 2021 3 Thereafter the Sessions Court, Pathanamthitta took the case on file as S.C.586/2018 and after the formalities summons was issued to the witnesses. 3. On 18.3.2021 CW2 was present and examined as PW1. But in absolute disregard of the procedure to be adopted during examination of witnesses under Section 145 of the Indian Evidence Act, 1872 the Sessions Judge did not permit the Prosecutor to put questions to PW1 on the basis of facts disclosed by the prosecutrix regarding the commission of rape on her by the accused and attending circumstances. The observation of the learned Judge was that it is only a hearsay information. Though PW1 started deposing against the statement recorded by the police under Section 161 Cr.P.C, the Prosecutor was not allowed to put question permissible in cross-examination and he was not allowed to elicit the contradictions or get it marked and that has caused miscarriage of justice. It is recorded by the learned Judge in the deposition of PW1 that request of the Prosecutor to mark all contradictory statements in the 161 statements of the witnesses is refused. That according to the learned Prosecutor amounts to an order and this Criminal M.C has been filed to quash the same to prevent the abuse of process of Court and to meet the ends of Crl.M.C.3840 of 2021 4 justice. 4. Notice was issued to the respondent/accused and he appeared through counsel. Heard both sides. 5. The learned counsel for the respondent/accused would contend that there is no order as such to be challenged and only portion of deposition of PW1 has been made use of for challenging in this Criminal M.C. and that cannot be entertained. 6. But by the impugned order passed by the learned Sessions Judge the prosecution was denied an opportunity of confronting with the 161 statement to contradict the witness as provided under Section 145 of the Evidence Act. That definitely would amount to an abuse of process of Court and hence the contention that the Crl.M.C is not maintainable, cannot be sustained in law. 7. The learned Special Public Prosecutor relied on **V.K.Mishra and** - **Another v. State Of Uttarakhand and Another (2015 (9) SCC 588)** to contend that the procedure adopted by the Sessions Judge is against well settled principles of law and has caused miscarriage of justice. Paragraph Nos.16, 17 and 18 of the said judgment are relevant in this context to be extracted which read as follows : Crl.M.C.3840 of 2021 5 “16. Court cannot suo moto make use of statements to police not proved and ask question with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 Cr.P.C. “if duly proved” clearly show that the record of the statement of witnesses cannot be admitted in evidence straightway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross-examination of the investigating officer. Statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of Evidence Act that is by drawing attention to the parts intended for contradiction. 17.Section 145 of the Evidence Act reads as under: 145. Cross-examination as to previous statements in writing.- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. 18. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of witness is drawn to that part and this must reflect in his cross-examination Crl.M.C.3840 of 2021 6 by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo moto make use of statements to police not proved in compliance with Section 145 of Evidence Act that is, by drawing attention to the parts intended for contradiction.” ## 8. In **Tahsildar Singh and another v. State of U.P. (AIR 1959 SC** **1012)** , the basic principles of contradiction of witness by confronting with previous statements and procedure to be adopted has been discussed in detail. Paragraph Nos.13 and 19 of the said decision are relevant to be extracted which read as under : Crl.M.C.3840 of 2021 7 13. The learned Counsel's first argument is based upon the words " in the manner provided by Section 145 of the Indian Evidence Act, 1872 " found in s. 162 of the Code of Criminal Procedure. Section 145 of the Evidence Act, it is said, empowers the accused to put all relevant questions to a witness before his attention is called to those parts of the writing with a view to contradict him. In support of this contention reliance is placed upon the judgment of this Court in Bhagwan Singh v. The State of Punjab (1). Bose, J., describes the procedure to be followed to contradict a witness under Section 145 of the Evidence Act thus at p. 819: " Resort to Section 145 would only be necessary if the witness denies that he made the former statement. In that event, it would be necessary to prove that he did, and if the former statement was reduced to writing, then section 145 requires that his attention must be drawn to those parts which are to be used for contradiction. But that position does not arise when the witness admits the former statement. In such a case all that is necessary is to look to the former statement of which no further proof is necessary because of the admission that it was made. " It is unnecessary to refer to other cases wherein a similar procedure is suggested for putting questions under s. 145 of the Indian Evidence Act, for the said decision of this Court and similar decisions were not considering the procedure in a case where the statement in writing was intended to be used for contradiction under s. 162 of the Code of Criminal Procedure. Section 145 of the Evidence Act is in two parts: the first part enables the accused to cross-examine a witness as to previous statement made by him in writing or reduced to writing to without such writing being shown to him; the second part deals with a situation where the cross- examination assumes the shape of contradiction : in other words, both parts deal with crossexamination; the first part with cross-examination other than by way of contradiction, and the second with cross-examination by way of contradiction only. The procedure prescribed is that, if it is intended Crl.M.C.3840 of 2021 8 to contradict a witness by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to s. 162 of the Code of Criminal Procedure only enables the accused to make use of such statement to contradict a witness in the manner provided by s. 145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of s. 145 of the Evidence Act. Nor are we impressed by the argument that it would not be possible to invoke the second part of s. 145 of the Evidence Act without putting relevant questions under the first part thereof. The difficulty is more imaginary than real. The second part of s. 145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate: A says in the witness-box that B stabbed C ; before the police he bad stated that D stabbed C. His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness-box. 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. On the other hand, the procedure suggested by the learned Counsel may be illustrated thus: If the witness is asked " did you say before the police-officer that you saw a gas light ? " and he answers " yes ", then the statement which does not contain such recital is put to him as contradiction. This procedure involves two fallacies: one is it enables the accused to elicit by a process of cross-examination what the witness stated before the police-officer. If a police-officer did not make a record of a witness's statement, his entire statement could not be used for any purpose, whereas if a police-officer recorded a few sentences, by this process of cross- examination, the witness's oral statement could be brought on record. This procedure, therefore, contravenes the express provision of s. 162 of Crl.M.C.3840 of 2021 9 the Code. The second fallacy is that by the illustration given by the learned Counsel for the appellants there is no self-contradiction of the primary statement made in the witness-box, for the witness has yet not made on the stand any assertion at all which can serve as the basis. The contradiction, under the section, should be between what a witness asserted in the witness-box and what he stated before the police-officer, and not between what he said he had stated before the police-officer and what he actually made before him. In such a case the question could not be put at all: only questions to contradict can be put and the question here posed does not contradict it leads to an answer which is contradicted by the police statement. This argument of the learned Counsel based upon s. 145 of the Evidence Act is, therefore, not of any relevance in considering the express provisions of S. 162 of the Code of Criminal Procedure.” 19. " Contradict " according to the Oxford Dictionary means to affirm to the contrary. Section 145 of the Evidence Act indicates the manner in which contradiction is brought out. The cross-examining Counsel shall put the part or parts of the statement which affirms the contrary to what is stated in evidence. This indicates that there is something in writing which can be set against another statement made in evidence. If the statement before the police-officer-in the sense we have indicated-and the statement in the evidence before the Court are so inconsistent or irreconcilable with each other that both of them cannot co-exist, it may be said that one contradicts the other.” 9. In paragraph 12 of **Thankappan Mohanan v. State of Kerala (1990 (1) KLT 21 = 1990 KHC 5)** , a Division Bench of this Court has held thus : Crl.M.C.3840 of 2021 10 “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 1952 SC 214 : (1952 Cri LJ 1131) what is really necessary is substantial compliance of the requirements of Section 145 of the Evidence Act and the purpose of the second part of Section 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 Crl.M.C.3840 of 2021 11 and 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 Section 145.” ## 10. Again in **Krishnan Nair v. State of Kerala (1971 KLT 326** **= 1971 KHC 67)** a Division Bench of this Court dealt with the procedure to be adopted in contradicting a witness and proving the same by virtue of Section 145 of the Indian Evidence Act. Paragraph 8 of the said decision is relevant to be extracted which reads as under :- “We reserved for consideration certain contradictions which are said to detract from the testimony of some of the prosecution witnesses. Pws 2 and 5 were sought to be contradicted when they were examined in the Sessions Court with reference to their previous statement made during the investigation under S.162 of the Crl.P.C. The statements themselves were not proved or marked, and there is nothing to show that the witnesses were confronted with the recorded statements as such, or the relevant portions thereof. Pws 2 and 5 were asked whether they had not made certain statements to the police. These statements put to them appear in inverted commas in the deposition. They denied having made the statements. These very statements, again in inverted commas, were put to the Investigating Officer, PW12, and he was Crl.M.C.3840 of 2021 12 asked whether the witnesses had not made them in the course of interrogation under S.162 of the Criminal Procedure Code. We may extract both these provisions. S.145 of the Evidence Act reads : “A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.” S.162 of the Criminal Procedure Code reads : “162(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose,( save as hereinafter, provided), at any inquiry or trial in respect of any offence under investigation at the time when such statement was made “ Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872 ); and when any part of such statement is so used, any part thereof may also be used in the re- examination of such witness, but for the purpose only of explaining any matter referred to in his cross- examination. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872 ), or to affect the provisions of section 27 of that Act.” Crl.M.C.3840 of 2021 13 From a reading of the two provisions it is clear that the statement made by a witness in the course of investigation may, if duly proved, be used to contradict that witness; and 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. Whether this means that the entire statement under S.162 of the Criminal PC, should, in all cases, be proved and marked, and the witness confronted with portions thereof, or whether oral evidence of a statement reduced to writing, can and should be admitted, and if so, under what circumstances, are matters into the niceties of which, we need not at present enter. As observed by the Supreme Court in Bhagwan Singh v. The State of Punjab (AIR 1952 SC 214), what matters in the matter of compliance with these provisions is the substance and not the form. In Tara Singh v. The State (AIR 1951 SC 441) the Supreme Court stressed the need for confrontation of a witness with his previous testimony if the same is to be used for contradicting him. Again in Tahsildar Singh and another v. State of UP (AIR 1959 SC 1012), the procedure prescribed for contradiction is described, as follows : 11. “The procedure prescribed is that, if it is intended to contradict a witness by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to S.162 of the Code of Criminal Procedure only enables the accused to make use of such statement to contradict a witness in the manner provided by s. 145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of s. 145 of the Evidence Act. Nor are we impressed by the argument that it would not be possible to invoke the second part of S.145 of the Evidence Act without putting relevant questions under the first part thereof. The difficulty is more imaginary than real. The Crl.M.C.3840 of 2021 14 second part of s. 145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate: A says in the witnessbox that B stabbed C ; before the police he bad stated that D stabbed C. His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness-box. 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.” The Investigating Officer did not even offer formal evidence that the statements within inverted commas put to him and to the witnesses were taken from the recorded statements under S.162 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. We wish to impress upon both, the need to comply strictly with the provisions of S.145 of the Evidence Act. In view of this serious defect there is no material for us to hold that any contradictions have been established in regard to PWs2 and 5. We have of course not discussed in detail nor relied on the testimony of PW5. But the serious mistake made in attempting to contradict these witnesses with reference to their statements under S.162 of the Criminal Procedure Code has made it necessary to express our view.” 12. career In the present case, the copy of depositions of PW1 (CW2) would show that, she has retracted from the statement given to the police and is not prepared to support the prosecution case. That would be revealed from the deposition itself since prosecution was permitted to put questions as in cross- Crl.M.C.3840 of 2021 15 examination. But further court refused the request of the prosecutor to mark all contradictory statements in the 161 statement of the witness. That is against the settled principles of law. The statements recorded during investigation is to be confronted with the witness during examination by taking his attention to the relevant portion and give him an opportunity to explain the reason and thereafter, it has to be marked subject to proof. Then only when the investigating Officer is examined, that particular portions can be brought to his attention as statement recorded by him and it can be said to have proved the contradiction and thereafter only legally prosecution can make use of those portions of statements to contradict the witness. Sessions Judge can very well adopt the procedure as held in **Thankappan Mohanan** 's case by writing commencing word and ending words within inverted commas to save time without recording the entire sentence. So when the Sessions Judge refused the request of prosecution to mark all contradictorty statements of PW1 the Sessions Judge has violated the basic principles of fair trial which is a constitutional mandate and that cannot at any moment be encouraged. So I don't have any hesitation to set aside the above order of the Sessions Judge Crl.M.C.3840 of 2021 16 refusing the request of the prosecution to make all contradictory statements in the 161 statements oif PW1. 13. In the result, Crl.M.C allowed. The Sessions Judge is directed to recall PW1 and permit the prosecution to cross examine the witnesses in compliance of Section 162 Cr.P.C and Section 145 of the Indian Evidence Act and further in compliance of the well settled principles of law laid down by the Apex Court as well as this Court. Sd/- ## **M.R.Anitha, Judge** Mrcs/2.9. Crl.M.C.3840 of 2021 17 ## **APPENDIX OF CRL.MC 3840/2021** PETITIONER ANNEXURE Annexure 1 THE CERTIFIED COPY OF THE PROCEEDINGS IN SC 586/2018. Annexure 2 THE PHOTOCOPY OF THE RELEVANT PAGES OF THE 161 STATEMENT OF CW2 RECORDED BY DY. SP, ADOOR ON 24.03.2012. Annexure 2(A) TYPED TRUE COPY OF THE RELEVANT PAGES OF THE 161 STATEMENT OF CW2 RECORDED BY DY. SP, ADOOR ON 24.03.2012. Annexure 3 THE CERTIFIED COPY OF THE DEPOSITION OF PW1 BEFORE THE SESSIONS JUDGE, PATHANAMTHITTA.