Right Of An Accused To Cross Examine

 – The law of evidence plays pivotal role in dispensation & administration of justice. The law of evidence occupies an important position in the field of substantive & procedural laws. It is only through law of evidence that substantive rights are established in a court of law. The promotion of accuracy in the adjudication process is the main objective meant to be achieved by law of evidence. The Indian Evidence Act, 1872 applies to all judicial proceedings whether be it civil or criminal or a Court-martial (other than the Courts-martial held under the Specified Acts). The law of evidence is sine-qua-non for the working of entire judicial system. The extent of law of evidence is vast, however here in this article we are only concerned with the right of an accused to cross examine a witness with reference to Section 145 of the Indian Evidence Act.

The rules of evidence as laid down in Section 145 is of paramount importance to legal practitioners. Contradictions in the previous statements in writing of a witness are a very powerful weapon in the hands of the adverse party. A contradiction may be such as to demolish the case made out in the examination-in-chief.Contradictions play a vital role in criminal trials. The expression ‘contradiction’ was a subject of great legal controversy. The question was whether it refers only to direct contradiction or whether it includes ‘omissions’ also. It has been settled by the Apex Court that contradictions would also include omissions.There may be direct contradictions or contradictions by omissions. Sometimes the term ‘improvements’ is used to denote the effect of contradictions and omissions. A witness may improve his version about an incident in order to support the prosecution case. It is to meet this contingency that Section 162 of the Criminal Procedure Code read with Section 145 of the Evidence Act provides for proof of contradictions and omissions. The proof is in two stages. In the first stage, the contradiction as brought on record in the manner laid down in Section 162 of the Criminal Procedure Code and Section 145 of Evidence Act. This is not enough. The contradiction is to be proved. Except when the witness has admitted the contradiction, this is done by cross examining the Police Officer who has recorded the statements under Section 162 of the Criminal Procedure Code. If this is not done, the contradictions brought on record have no effect at all.

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

Section 145 of the Evidence Act indicates the manner in which contradiction is to be 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.Section 145 stipulates:

1. Witness can be cross examined as to previous statement statements in writing or reduced into writing.
2. These writings need not be shown to the witness or proved beforehand
3. But if the intention is to contradict them by the writings,
4. (a) their attention must be drawn to those parts which are to be used forcontradiction

(b) by drawing attention of witness to contrary parts of his previous statements witness may avail opportunity of explaining statement made previously.

It is manifest that first part of this section deals with cross-examination other than by way of contradiction and the second part by way of contradiction only. It is not possible to invoke the second part without putting questions under the first. Section 145 gives the right to cross-examine a witness on previous statements made by him and reduced to writing, when these previous statements are relevant to the matter in issue. A witness may be questioned as to his previous written statements for two purposes:

• It may be to test his memory; and the very object would be defeated if the writing were placed in his hand before the questions were asked,
• or it may be to contradict him; and here it would be obviously unfair not to give him every opportunity of seeing how the matter really stands.

In a criminal trial, statements of witnesses are recorded by the Police under Section 161 of the Cr. P.C., copies of which are supplied to the accused under Section 207 of Cr.P.C. These statements can be used by the accused for proving contradictions as laid down in Sec. 162 Cr. P.C.

Under Section 161 of Cr.P.C., a police officer making an investigation can examine the person acquainted with the facts of the case, and reduce the statement made by such person into writing.

The principle embodied in Section 162 of Cr.P.C. ensures that no statement made to the police which is reduced to writing and signed by the person who makes it and that no such statement or any record of such a statement, whether in a police diary or otherwise or any part of such statement or record shall be used for any purpose other than those stated in the section. They may be used by the accused or by the prosecution to contradict such witness in the manner as provided in Section 145 of the Indian Evidence Act, and when it 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. It means that statements made to the police can be used for contradicting a prosecution witness in the manner indicated in Section 145 of the Evidence Act. They cannot be used for corroboration of the evidence of a witness in court. In a murder case, the Sessions Judge used and relied upon the case diary statements for corroboration version, it was held that statements given to the police during investigation cannot be used as substantive evidence; they can only be used for raising suspicion against credibility of the witness. Such a statement cannot be used for contradicting the statement of another person. The limited use of such statement is to contradict the maker of it.

Section 207 of Cr. P.C. provides for furnishing to the accused relevant documents or extracts from them, in cases where proceeding has been instituted on a police report, so that the accused is able to know the charge brought against him and the materials by which the charge is going to be substantiated by the prosecution. It is the duty of the Judicial Magistrate to furnish to the accused without delay and free of cost the copy of (1) the police report; (2) the FIR; (3) statements of witness recorded under section 161 (4) statements or confessions recorded u/s 164 and (5) any other document on which the prosecution wants to rely or extracts therefrom.

The question that arises how the accused confronts the previous statement made by a witness in the course of an investigation to establish the contradiction in the evidence given by the witness in the trial. In order to bring on the record omission or contradiction for the purpose for the purpose of impeaching the credit of a witness it is incumbent upon the cross examiner to draw the attention of the witness i.e. the author of the statements towards his said previous statement alleged to be contradicted. It is necessary that the witness has to be confronted first to his previously recorded statement, on that matter.

Section 145 of the Evidence Act has to be read with section 162 of the Cr.P.C.  and clearly indicates that the attention of a witness is to be called to the previous statement before the writing can be proved. If the witness admits the previous or explains any discrepancy or contradiction, it becomes un-necessary for the statement thereafter to be proved. On the other hand, if the statement still requires to be proved that can be done by calling the person before whom the statement was made. A statement made by a witness to a police officer in the course of an investigation can be used only to contradict him in the manner provided in Section 145 and for no other purpose. The attention of the witness must be drawn to those parts of his statement before the police by which it is sought to contradict him and he must be given a clear opportunity to explain the inconsistency. The whole of his statement before the police does not become admissible in evidence, but only those part of it to which his attention has been called and , therefore, that part alone should be exhibited or admitted into evidence.

Section 145 indicates one of the modes in which the credit of a witness may be impeached. An analysis of Section 145 of the Evidence Act shows that this section permits cross examination of the witness in any trial, with reference to his previous statement, to establish a contradiction and the manner in which such contradictions can be established. It can be safely concluded that it is the right of a party in a trial to use the previous statements of a witness either for the purpose of establishing a contradiction in his evidence or for the purpose of impeaching the credit of the witness.

The object of section 145 is either to test the memory of a witness or to contradict him by previous statements in writing. Such writing may be documents, letters, depositions, police diaries, etc. It must be noted that the previous record should be in writing. The witness may also be contradicted by his previous verbal statements.A witness may be questioned as to his previous written statements for two purposes: it may be to test his memory and the very object would be defeated if the writing were placed in his hand before the questions were asked, or it may be to contradict him and here it would be obviously unfair not to givehim every opportunity of seeing how the matter really stands.The section is attracted only when two contradictory statements are made by the same witness and not when the statement of one witness is contradicted by another witness. A witness can be contradicted only when he denies his statement and not when admits it.

In case of accepting illegal gratification, the statement of complainant was recorded on compact disc during an interview. Permission was sought to contradict the evidence given by complaint by confronting the complainant with his statement recorded on compact disc. When trial court refused permission to the defense on ground that the said statement could not be treated as previous statement for purpose of cross examination, the said refusal was held to be improper. However, it was held that the compact disc to be used for the purpose of confronting the witness must fulfill the necessary requirements ofbeing primary evidence. 

It would be apposite to refer to judicial exposition regard being had to the explanation of Section 145 of the Evidence Act.

In Bhagwan Singh v. State of Punjab1952, the Honourable Supreme Court described the procedure to be followed to contradict a witness under Section 145 of the Evidence Act, “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.”

In Tahshildar Singh And Another v. State of UP 1959, the Constitution Bench of the Apex Court held that, “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 cross-examination; the first part with cross-examination other than by way of contradiction.”….

“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 provisoto  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 had 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 crossexamination, the witness’s oral statement could be brought on record. This procedure, therefore, contravenes the express provision of s. 162 of 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.”…..

“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.

It is broadly contended that a statement includes all omissions which are material and are such as a witness is expected to say in the normal course. This contention ignores the intention of the legislature expressed in s. 162 of the Code and the nature of the non-evidentiary value of such a statement, except for the limited purpose of contradiction. Unrecorded statement is completely excluded. But recorded one is used for a specified purpose. The record of a statement, however perfunctory, is assumed to give a sufficient guarantee to the correctness of the statement made, but if words not recorded are brought in by some fiction, the object of the section would be defeated. By that process, if a part of a statement is recorded, what was not stated could go in on the sly in the name of contradiction, whereas if the entire statement was not recorded, it would be excluded. By doing so, we would be circumventing the section by ignoring the only safeguard imposed by the legislature, viz., that the statement should have been recorded.”

It has been held by Honourable Supreme Court in Charanjit v. State of Punjab 2013,“11. We have considered the contention of Mr. Parekh on behalf of the appellants that PW-3 has sought to falsely implicate the appellants on account of her close links with the terrorists and on account of the pressure from the terrorists, but no evidence as such has been led on behalf of the defence to show that PW-3 has implicated the appellants under the influence of the terrorists. Mr. Parekh relied on Ext.DW-1/B dated 09.02.1989 said to have been signed by 32 villagers in which it is stated that the villagers believe that terrorists were frequenting the house of PW- 3 and staying in her house and taking their meals and, therefore, PW-3 should be brought and interrogated about those terrorists, but Ext.DW-1/B is no proof of the fact that PW-3 has made the allegations of rape against the appellants on the pressure of the terrorists. We have also considered the submission of Mr. Parekh that PW-3 had herself given a statement in the inquiry conducted by the Superintendent of Police, Mr. Harbhajan Singh Bajwa, that she had made the complaint against the appellants at someones instigation and she does not want any action to be taken on her complaint. This statement of PW-3 is not substantive evidence before the Court and at best can be treated as a previous statement to contradict the substantive evidence of PW-3 given in Court. Section 145 of the Indian Evidence Act states that a witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and if it is intended to contradict him by the writing, his attentionmust, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. In the cross-examination of PW-3, a question was put whether S.P. Mr. Harbhajan Singh Bajwa conducted the inquiry and recorded her statement and she has stated that he did conduct an inquiry but she does not know what he had recorded. She has further stated that her signatures were obtained on the statement but she knew only how to write her name and cannot read or write Punjabi except appending her signatures. In view of the aforesaid statement made by PW-3 in her cross- examination, her statement recorded in the inquiry conducted by S.P. Mr. Harbhajan Singh Bajwa cannot be used to contradict the evidence of PW-3 given in Court.

12. We have also considered the submission of Mr. Parekh that in the petition dated 13.02.1989 to the Governor (Ex.PW-3/A), PW-3 had not mentioned that PW-1 and PW-2 were present when she was released at the intervention of the Panchayat of village Paili, OtalMajarh and Unaramour on 10.02.1989. This statement of PW-3 in the petition dated 13.02.1989 is not substantive evidence before the Court and can only be treated as a previous statement to contradict the substantive evidence of PW-3 given in Court by putting a question to PW-3 in course of her cross-examination under Section 145 of the Indian Evidence Act. If such a question was put in the cross-examination, PW-3 would have got an opportunity to explain why she had not specifically stated in the petition dated 13.02.1989 to the Governor (Ex.PW-3/A) that her husband (PW-1) and the neighbour (PW-2) were also present when she was released at the intervention of the Panchayat of village Paili, OtalMajarh and Unaramour on 10.02.1989. In absence of any such question put to PW-3 in her cross-examination, the omission of the names of PW-1 and PW-2 in the petition dated 13.02.1989 to the Governor (Ex.PW-3/A) cannot be taken as contradictory to the evidence of PW-3. Hence, the evidence of PW-3 as well as that of PW-1 and PW-2 that on 10.02.1982, PW-1 and PW-2 were present when PW-3 was released at 4.30 p.m. could not have been disbelieved by the Court.”

In Raj Kishore Jha v. State of Bihar 2003, it was held by Honourable Supreme Court, “The question of contradicting evidence and the requirements of compliance with Section 145 of the Evidence Act has been considered by this Court in the Constitution Bench decision in the case of Tahsildar Singh v. State of U.P., AIR (1959) SC 1012. The Court in the aforesaid case was examining the question as to when an omission in the former statement can be held to be a contradiction and it has also been indicated as to how a witness can be contradicted in respect of his former statement by drawing particular attention to that portion of the former statement. This question has been recently considered in the case of Binay Kumar Singh v. State of Bihar, [1997] 1 SCC 283 and the Court has taken note of the earlier decision in Bhagwan Singh v. State of Punjab, AIR (1952) SC 214 and explained away the same with the observation that on the facts of that case there cannot be a dispute with the proposition laid down therein. But in elaborating the second limb of Section 145 of the Evidence Act it was held that if it is intended 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. It has been further held that if the witness disowns to have made any statement which is inconsistent with his present stand, his testimony in Court on that score would not be vitiated until the cross-examiner proceeds to comply with the procedure prescribed in the second limb of section 145 of the Evidence Act. The aforesaid position was indicated in Rajender Singh and Ors. v. State of Bihar, [2000] 4 SCC 298.”

In Binay Kumar Singh v. State of Bihar 1997, it has been held “The credit of a witness can be impeached by proof of any statement which is inconsistent with any part of his evidence in court. This principle is delineated in Section 155(3) of the Evidence Act and it must be borne in mind when reading Section 145 which consists of two limbs. It is provided in the first limb of Section 145 that a witness may be cross-examined as to the previous statement made by him without such writing being shown to him. But the second limb provides 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 of it which are to be used for the purpose of contradicting him.” There is thus a distinction between the two vivid limbs, though subtle it may be. The first limb does not envisage impeaching the credit of a witness, but it merely enables the opposite party to cross-examine the witness with reference to the previous statements made by him. He may at that stage succeed in eliciting materials to his benefit through such cross-examination even without resorting to the procedure laid down in the second limb. But if the witness disowns having made any statement which is inconsistent with his present stand his testimony in Court on that score would not be vitiated until the cross-examiner proceeds to comply with the procedure prescribed in the second limb of Section 145.”

In view of the principles of law as articulated by Section 145 of the Evidence Act and various decisions rendered by the Apex Court makes it clear the object and dispel the cloud cast that an accused in a criminal trial has the right to make use of the previous statements of a witness including the statements recorded by the investigating agency during the course of an investigation for the purpose of establishing a contradiction in the evidence of a witness or to discredit the witness.

Reference:

1. P.C. Bare Act.
2. Criminal Procedure: Ratanlal & Dhirajlal
3. Indian Evidence Bare Act
4. The Law of Evidence: Ratanlal & Dhirajlal
5. https://judis.nic.in