HOW TO APPRECIATE EVIDENCE IN CRIMINAL CASES

-By Mr.Ramprakash Rajagopal

CHAPTER: ORAL EVIDENCE

INTRODUCTION – Under the Old Act – Under the New Act
Changes
OPENING
OBJECTION
STATEMENT - PREVIOUS STATEMENT, SUBSTANTIVE STATEMENT,
ADMISSIBILITY &
EXAMINATION OF WITNESSES

Introduction

Previously The Indian Evidence Act, 1872 has been divided into 3 parts, 11
chapters and comprises of 167 sections. Now “The Bharatiya Sakshya Adhiniyam,
2023” contains 4 parts, 12 Chapters comprises of 170 sections in total.

Under the Old Act

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Part-I: answers the question ‘what facts may or may not be proved?’ (Ss-1 to 55)
Part-II: deals with ‘what sort of evidence is to be given of these facts?’ (Ss-56 to
100) Part-III: covers ‘by whom and in what manner the facts are to be proved?’
(Ss-101 to 167)

Part I- consists of two Chapters dealing with definitions and relevancy of facts.

Part II comprises Chapters III to V which provide for proof of facts by oral or
documentary evidence.

Part III embodies Chapters VI to XI which contain rules for the production of
evidence in court, the effect of presumptions and the duties of the court in dealing
with the evidence produced before it.

Under the New Act

Part-I: Preliminary [Chapter-I: Sections 1 & 2];

Part-II: Relevancy of Facts [Chapter-II: Sections 3 to 50];

Part-III: On Proof [Chapters III to IV: Sections 51 to 103];

Part-IV: Production and Effect of Evidence [Chapters VII to XII: Sections 104 to 170]

Sec-5 to 55 deal with RELEVANCY and

Sec-56 to 167 deal with the ADMISSIBILITY.

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 - x–

Changes

1. Accomplice:

1.1 Section 124 BSA (Old 118): Who may testify? He may be an accomplice or
informer - lunatic is being changes as unsound mind person. This section has to be
read with 138 of the New Act (Old 133). Also see Article 20(3) of the Constitution of
India which bars the accused to be ‘compelled’ to be a witness against himself, but
the accused can do so (to be a witness against himself), if there is no ‘compulsion’ is
being proved.

1.2. Accomplice: Sections 24 (old 30)-co-accused confession:

S. 24. Consideration of proved confession affecting person making it and

others jointly under trial for same offence:

Explanation II--A trial of more persons than one held in the absence of the
accused who has absconded or who fails to comply with a proclamation
issued under section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023
shall be deemed to be a joint trial for the purpose of this section. [This

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 explanation is missing in Evidence Act 1872].

[Murugan vs. State Rep. by the Inspector of Police, Jolarpet Police Station, Vellore
District. Crime No.206 of 2016 – Crl.A.No. 111 of 2019 – 12.04.2023 – THE
HONOURABLE MR.JUSTICE M.SUNDAR AND THE HONOURABLE MR.JUSTICE
M.NIRMAL KUMAR]; ratio: Co-accused confession can be considered if the accused
are tried jointly.

In the new Act, it is stated that a trial of multiple persons, where an accused has
absconded (section 84 BNSS 2023) or has not responded to an arrest warrant, will
be treated as a joint trial. Hence, if an accused absconds and he is treated as not
conducting joint trial along with the other accused persons who are present.

1.3. section 119 [old 114 (b)]: Court may presume existence of certain facts:

Illustration: (b) an accomplice is unworthy of credit, unless he is

corroborated in material particulars;

138. Accomplice: [with direct appreciation of evidence by law itself]

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 An accomplice shall be a competent witness against an accused person;
and a conviction is not illegal if it proceeds upon the corroborated
testimony of an accomplice. [conviction is illegal if proceeds upon
uncorroborated testimony]

Section 133. Accomplice [Old] - An accomplice shall be a competent

witness against an accused person; and a conviction is not illegal merely
because it proceeds upon the uncorroborated testimony of an accomplice.

1.4. Section 159 (old 156) Illustration: Questions tending to corroborate evidence
of relevant fact, admissible.

A, an accomplice, gives an account of a robbery in which he took part. He

describes various incidents unconnected with the robbery which occurred
on his way to and from the place where it was committed.

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This section has to read with 138. Accomplice which says [plagued writing].

2. Informer:

The word ‘compel’ contemplated under section 131 [Old 125] BSA shall have to be
appreciated in the context as per sections 132 read with 147 of the Evidence Act
and Article 20(3) of the Constitution of India.

Points I have taken during trial:

2.1 The witness’s prime duty is to disclose the correct and exact facts with
information before the court in the interest of justice and not hide the same. What
the witness has under section 131 is not ‘privilege’ but ‘Liberty’.

Judgments:

1) D.Weston vs. Peary Mohan Dass reported in 1913 (40) ILR(Cal) 898
2) Bhugdomal Gangaram and others vs. State of Gujarat – (1983)1 SCALE 411
[Informer not examined – hearsay]
3) KANHAI MISHRA @ KANHAIYA MISAR vs STATE OF BIHAR – (2001) CriLJ
1259 (SC)

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[This witness has nowhere stated from whom he received the secret information
inasmuch as such information cannot be made a basis to prove this circumstance for
being used against the appellant].

4) Re: Nangil N.V. Rajendran and another – (1972) LW(Cri) 185

5) Nagaraj vs. State – Crl. Appl. No: 305 of 2014; Dt: 02.09.2015 – [Mdu].
6) Bijender @ Mandar vs. State Of Haryana - (2022) 1 SCC 92 (SC – 3 Judge
Bench).

[14. …… Ergo, the very identity of the Appellant as one of the perpetrators stands
obscured, particularly, considering that all the accused in the case were arrested on
the basis of a secret information, the origin of which is naturally unknown].

7) GUNA MAHTO vs. STATE OF JHARKHAND – CRIMINAL APPEAL NO.108 OF

2012 - 16th March, 2023

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[The body of the deceased was found only on the date of recovery from the well of
the village. He expressed his doubt, “…that accused had killed his wife and had
thereafter thrown her into the well”. This being the only statement that he made
against the accused. But what is his source of such information, he does not
disclose. In any event such a deposition is only in the nature of hearsay and no
more, which is also uncorroborated. However, significantly, he admits that the
accused had already reported the matter to the Police and that no case of ill-
treatment of the deceased was ever registered against the appellant]

No secret investigation allowed: Katturaja and anr vs. State – (2013)2 CTC 72
(MAD)=(2013) 1 LW(Cri) 134=(2013) 1 MWN(Cri) 267.

No secrecy in custody of documents: Public Prosecutor Vs M.N. Govindaraja

Mudaliar And Others – 1954 Cri.L.J 1624.

Section 124 BSA (Old 118): Who may testify? – Nothing prevents informer to testify
in the court under this section.

Article 20(3) of the Constitution of India which bars the accused to be ‘compelled’
to be a witness against himself, but the accused can do so (to be a witness against
himself), if there is no ‘compulsion’ being proved.

185th Law Commission of India in Annexure (The Indian Evidence Act Amendment
Bill, 2003) recommended the subjection matter as follows:

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71. In section 125 of the principal Act, the following Exception shall be inserted at
the end, namely:-

“Exception: Nothing in this section shall apply where it appears to the Court that the
giving of the information is a fact in issue on which the liability of a party depends or
is otherwise a material fact, and the Court, for reasons to be recorded and in the
interests of justice, directs the disclosure of such information by the Magistrate,
Police officer or Revenue officer”.

Final note: This section does not comprehend for otherthan Magistrate, Police
Officer or Revenue Officer i.e., for VAO, thalaiyari e.t.c…

The New Act encompass the word ‘when’ instead of ‘whence.

3. Electronic records: sections 61, 62 and 63.

3.1. Section 39 [old 45A merged] Opinion of experts: (2) When in a proceeding, the
court has to form an opinion on any matter relating to any information transmitted
or stored in any computer resource or any other electronic or digital form, the
opinion of the Examiner of Electronic Evidence referred to in section 79A of the
Information Technology Act, 2000 (21 of 2000), is a relevant fact.

Explanation.--For the purposes of this sub-section, an Examiner of Electronic

Evidence shall be an expert.

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3.2. Admission of contents of secondary evidence of electronic records: Secondary
evidence section 58 [old 63], If the secondary evidence is subject to oral evidence
(admission) of the contents of the electronic documents then the witness (party)
must prove he is entitled to give secondary evidence of the contents of such
document under the rules hereinafter contained, or unless the genuineness of a
document produced is in question.

RAVINDER SINGH @ KAKU …..APPELLANT VERSUS STATE OF PUNJAB ……

RESPONDENT - CRIMINAL APPEAL NO.1307 OF 2019 [ARISING OUT OF SPECIAL
LEAVE PETITION [CRL] NO.9431 OF 2011] - Dated: MAY 4, 2022.

Now, the court may accept the secondary evidence of electronic records as per
sections 61 and 62 (section 65A) and is also may accept the contents of the
electronic records as per section 63. But there is no enabling provision as such
section 22A of the Indian Evidence Act in the new Act to prove the party that the
content is relevant to the proceeding, the entire exercise is subject to the
pronouncement of any Hon’ble Supreme judgments.

Section 54: All facts, except the contents of documents, may be proved by oral
evidence.

24. Evidence is admissible and should be received by the Court to which it is

tendered unless there is a legal reason for its rejection. Admissibility presupposes
relevancy. Admissibility also denotes the absence of any applicable rule of exclusion.

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Facts should not be received in evidence unless they are both relevant and
admissible. The principal rules of exclusion under which evidence becomes
inadmissible are twofold. First, evidence of Relevant facts is inadmissible when its
reception offends against public policy or a particular rule of law. Some matters are
privileged from disclosure. A party is sometimes estopped from proving facts and
these facts are therefore inadmissible. The exclusion of evidence of opinion and of
extrinsic evidence of the contents of some documents is again a rule of law. Second,
relevant facts are subject to recognised exceptions inadmissible unless they are
proved by the best or the prescribed evidence [The State of U.P. vs. Raj Narain and
Ors. (24.01.1975 - SC) - AIR1975SC865 – 5 judge bench]

Now. If the judge says since there is no enabling provision (section 22A IEA) as to
prove the relevancy of the contents i.e., whether the content is relevant to the facts
in issue or relevant facts (section 4) though admitted in evidence, he would not take
such contents as relevant. This shall be decided only through judgments.

Nowadays prosecution marking confession also through print outs and the
disclosure portion is marked in the deposition without any certificate under
section 63 BSA. Is this correct?

Opening

AFFIDAVIT IS NOT EVIDENCE [Exceptions: s. 145 N.I Act & s. 296 Cr.P.C]:

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What is meant by an evidence of a formal character? It depends upon the facts of
the case. Quite often different steps adopted by police officers during the
investigation might relate to formalities prescribed by law. Evidence, if necessary
on those formalities, should normally be tendered by affidavits and not by
examining all such policemen in court. If any party to a lis wishes to examine the
deponent of the affidavit it is open to him to make an application before the court
that he requires the deponent to be examined or cross-examined in court. This is
provided in section 296 (2) Cr.P.C. When any such application is made it is the duty
of the court to call such person to the court for the purpose of being examined
[State of Punjab v. Naib din – AIR 2001 SC 3955].

COLLECTED BY ILLEGAL OR IMPROPER - IS EVIDENCE:

[Madhu @ Madhuranatha and another Vs State of Karnataka - (2013) 14 SCALE

502: (2014) 12 SCC 419 : (2014) 6 SCC(Cri) 765].

WHO IS A WITNESS? [Section 118 of IEA]

The term ‘witness’ means a person who is capable of providing information by way
of deposing as regards relevant facts, via an oral statement, or a statement in
writing, made or given in Court, or otherwise [Madhu @ Madhuranatha & Another Versus
State of Karnataka - 2013 (14) Scale 502=2014 (12) SCC 419=2014 (6) SCC(Cri) 765=2013 (12) SCR
947=2013 (4) Crimes 571 (SC)].

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In M.P. Sharma & Ors. v. Satish Chandra, District Magistrate, Delhi & Ors [AIR 1954
SC 300], this Court held that a person can "be a witness" not merely by giving oral
evidence but also by producing documents or making intelligible gestures as in the
case of a dumb witness (See Section 119 of the Evidence Act) or the like [State of
Rajasthan V. Darshan Singh @ Darshan Lal (Criminal Appeal No. 870 of 2007) MAY
21, 2012].

WHEN RELEVANCY OF FACTS ARE INADMISSIBLE IN EVIDENCE? [Section 136 of IEA]

Evidence is admissible and should be received by the Court to which it is tendered

unless there is a legal reason for its rejection. Admissibility presupposes relevancy.
Admissibility also denotes the absence of any applicable rule of exclusion. Facts
should not be received in evidence unless they are both relevant and admissible.
The principal rules of exclusion under which evidence becomes inadmissible are
twofold. First, evidence of Relevant facts is inadmissible when its reception offends
against public policy or a particular rule of law. Some matters are privileged from
disclosure. A party is sometimes estopped from proving facts and these facts are
therefore inadmissible. The exclusion of evidence of opinion and of extrinsic
evidence of the contents of some documents is again a rule of law. Second, relevant
facts are subject to recognised exceptions inadmissible unless they are proved by
the best or the prescribed evidence [THE STATE OF U.P. Vs RAJ NARAIN AND
OTHERS – AIR 1975 SC 865=(1975) 4 SCC 428].

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SECTION 3 - MATTERS BEFORE THE COURT - DEPOSITION:

Example: Very recently, the Hon’ble Supreme Court in Dara Singh vs. Republic of
India1, has relied upon the letter written by the accused to the Sessions Judge,
wherein he has confessed his guilt. Therefore, there is no impediment for us to rely
upon the letter dt.25.7.2012, sent by Manoharan to Sessions Judge. In any event,
the letter will come within the meaning of words “matters” used in the definition of
the expression “proved” in the Evidence Act [Manoharan vs. state - (2014)1 LW (cri)
561=2015 Cr.L.J 1215 (Mad-DB)].

The expression ‘matters before it’ contain section 3 of the Evidence Act includes the
matters which do not fall within the definition of evidence. The expression matters
also includes and takes within its fold presumptions, inferences and admissions
e.t.c. when the court finds a particular fact is to be proved, it has to take all relevant
materials, legal presumptions and inferences into account [MIOT Hospitals vs.
Venkata Ramanaiah – 2022(1) TLNJ 87 (crl) – Crl.O.P No: 25958 of 2017 – dated:
01.02.2022].

HOW TO PROVE THE DOCUMENTS BEFORE THE COURT?

1
(2011)2 SCC 400.

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Under the Law of Evidence also, it is necessary that contents of documents are
required to be proved either by primary or by secondary evidence. At the most,
admission of documents may amount to admission of contents but not its truth.
Documents having not been produced and marked as required under the Evidence
Act cannot be relied upon by the Court. Contents of the document cannot be
proved by merely filing in a court [L.I.C. Of India & Anr vs Ram Pal Singh Bisen on
16 March, 2010 – 2010 AIR (SCW) 1900].

PROVED - MEANING:

Proof of the fact depends upon the degree of probability of its having existed. The
standard required for reaching the supposition is that of a prudent man acting in any
important matter concerning him [M.Narsinga Rao vs. State of A.P – AIR 2001 SC
318 also see State of Maharashtra Versus Mohd. Yakub & Others - AIR 1980 SC
1111].

ORDER OF RECORDING EVIDENCE: [Sections 138 IEA and exception is 242(2) Cr.P.C]

In a warrant case, in view of the proviso to the sub-section (3) of Section 242 2 of
the Code of Criminal Procedure, 1973 (for short, “the Cr.PC”), the learned
Magistrate, by recording reasons, can permit cross examination of a witness to be
postponed till a particular witness or witnesses are examined. However, in the
present case, no such order was passed by the learned Magistrate. The normal rule
is that witnesses shall be examined in the order laid down in Section 138 of the

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Indian Evidence Act, 1872. Sub-section (3) of Section 242 of the Cr.PC is the
exception to the rule [Ekene Godwin & anr. Appellant(S) versus State of Tamil Nadu
Respondent(S) - Criminal Appeal No(S).1664-1665 OF 2024 (Arising Out of S.L.P.
(Criminal) No(S).13406-13407/2023) – 2024 INSC 229 – MARCH 18, 2024].

OBJECTION

OBJECTION - MARKING OF DOCUMENTS - OBJECTIONS AND ITS IMPORTANCE:

AIR 2001 SC 1158 - Bipin Shantilal Panchal Vs. State of Gujarat & another.
[K.T.Thomas; R.P.Sethi; B.N.Agarwal ; J.J]

BIPINI SHANTILAL PANCHAL’s case is “modified” in IN RE: TO ISSUE CERTAIN

GUIDELINES REGARDING INADEQUACIES AND DEFICIENCIES IN CRIMINAL TRIALS VS.
THE STATE OF ANDHRA PRADESH & ORS – SUO MOTO WRIT (CRL) NO. (S) 1/2017 (3
JUDGE BENCH S.A.BOBDE, L.NAGESWARA RAO AND S.RAVINDRA BHAT) as follows:

Apart from section 148, there are other provisions of the Evidence Act (sections
149-154) which define the ground rules for cross examination. During questioning,
no doubt, the counsel for the party seeking cross examination has considerable
leeway: cross examination is not confined to matters in issue, but extends to all
relevant facts. However, if the court is not empowered to rule, during the
proceeding, whether a line of questioning is relevant, the daner lies in irrelevant,
vague and speculative answers entering the record. Further, based on the answers

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to what (subsequently turn out to be irrelevant, vague or otherwise impermissible
questions) more questions might be asked and answered. If this process were to be
repeated in case of most witnesses, the record would be cluttered with a jumble of
irrelevant details, which at best can be distracting, and at worst, prejudicial to the
accused. Therefore, this court is of opinion that the view in Bipin Shantilal Panchal
should not be considered as binding. The presiding officer therefore, should
decide objections to questions, during the course of the proceeding, or failing it at
the end of the deposition of the concerned witness. This will result in de-cluttering
the record, and, what is more, also have a salutary effect of preventing frivolous
objections. In given cases, if the court is of the opinion that repeated objections
have been taken, the remedy of costs, depending on the nature of obstruction, and
the proclivity of the line of questioning, may be resorted to. Accordingly, the
practice mandated in Bipin Shantilal Panchal shall stand modified in the above
terms [IN RE: TO ISSUE CERTAIN GUIDELINES REGARDING INADEQUACIES AND
DEFICIENCIES IN CRIMINAL TRIALS VS. THE STATE OF ANDHRA PRADESH & ORS –
SUO MOTO WRIT (CRL) NO. (S) 1/2017 (3 JUDGE BENCH].

So this judgment has been rendered on 12 th April 2021, which is after decision made
by the trial court. Since this judgment of the supreme court is binding upon all the
Subordinate courts, a long exercise that has been undertaken by the trial court in
taking up each and every document at the pre-admission stage and deciding the
same as to its admissibility and relevancy in my considered view is not proper. So

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the admissibility and relevancy can be decided at the time of admitting the
documents during evidence [Nithyapracilla vs. The State by Inspector of Police,
A.W.P.S, Tiruverambur, Trichy – Crl.O.P (M.D) Nos. 127211 of 2019 –
dt:22.09.2021].

BIPIN SHANTHILAL PANCHAL MODIFICATION EXPLAINED BY HON’BLE MADRAS

HIGH COURT:

Thus, the decision in Bipin Shantilal Panchal (2001) 3 SCC 1 stood modified only in so
far as objections regarding questions put to a witness. The earlier rule regarding
objections pertaining to marking of documents etc would still be governed by the
Bipin Shantilal Panchal rule. Further Madras High Court has held that this Court
makes it abundantly clear that the procedure which has already come into force
pursuant to notifying the changes suggested by the Apex Court in the Criminal Rules
of Practice, must be strictly complied with in all future cases by the Trial Court. The
Judicial Academy must ensure that the judicial officers are made aware of the
procedure that has been brought into force in the Criminal Rules of Practice
pursuant to the directions issued by the Apex Court [Yuvaraj vs. State and Ors. Crl. A.
(MD) Nos. 228, 230, 232, 233, 515, 536 and 747 of 2022 - 02.06.2023 - MADHC - Mad. H.C. Rep.

2420=2023 (2) MWN (CR.) 161].

MARKING OF DOCUMENTS - OBJECTIONS – DEFENCE CROSS-EXAMINATION:

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We would also add that once objection is raised to the marking of a document, then
it naturally follows that the prosecution would take note thereof and do the needful
towards introducing proper mode of proof of the document and avoid contentions
challenging the mode of proof at the fag end of the proceedings2.

RIGHT TO OBJECT REGARDING LEADING OF IRRELEVANT QUESTIONS:

When the examination-in-chief of a material prosecution witness is being recorded,

the presence of the Advocate for the accused is required. He has a right to object to
a leading or irrelevant question being asked to the witness. If the trial is conducted
in such a manner, an argument of prejudice will be available to the accused. This is a
warrant case [Ekene Godwin & anr. Appellant(S) versus State of Tamil Nadu
Respondent(S) - Criminal Appeal No(S).1664-1665 OF 2024 (Arising Out of S.L.P.
(Criminal) No(S).13406-13407/2023) – 2024 INSC 229 – MARCH 18, 2024].

EVIDENCE PRIMARY PRINCIPLE:

Genuineness, veracity, or reliability of the evidence is seen by the court only after
the stage of relevancy and admissibility. These are some of the first principles of

2
2011 (2) LW(Crl) 749 – A. Ravishankar Prasad Director, M/s. Prasad Properties and
Investments P Ltd. & Another Versus State rep. by The Deputy Superintendent of Police,
Bangalore.

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evidence [Anvar P.V. Vs. P.K.Basheer and ors - dt. 18.9.2014].

STATEMENT

WHAT IS STATEMENT?

5. The contention is that the words 'statement made by' in this section require that
there must be a communication of the statement by the maker of it to another
person and that a statement within the meaning of section 157 does not include
any writing or memorandum made by a person for his own use when it is not
communicated to any other person. It is said that such a writing may be used to
refresh the memory of a witness under section 159; but it does not become
admissible in evidence unless the other party cross-examines the witness on the
document under section 161. In this case there was no question of cross-
examination upon the document as the prosecution itself produced the notes
during the examination-in-chief of Santook in order to corroborate him. In short, the
contention of the learned counsel is that such a writing can only be used under
section 159 and cannot be called a statement within the meaning of section 157, for
the word 'statement' used in section 157 implies that it must have been
communicated to another person.

6. Now, the word 'statement' is not defined in the Act. We have, therefore, to go
to the dictionary meaning of the word in order to discover what it means.

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Assistance may also be taken from the use of the word 'statement' in other parts of
the Act to discover in what sense it has been used therein

Also the word statement used in ss. 17 to 21, s. 32, s. 145,

Illustration: For example, statements in the account books of a person showing that
he was indebted to another person are admissions which can be used against him
even though these statements were never communicated to any other person.
Illustration (b) of s. 21 also shows that the word 'statement' used in these sections
does not necessarily imply that they must have been communicated to any other
person.

Section 21 (b) Indian Evidence Act 1872: A, the captain of a ship, is tried for casting her away.
Evidence is given to show that the ship was taken out of her proper course. A produces a book kept by
him in the ordinary course of his business showing observations alleged to have been taken by him from
day to day, and indicating that the ship was not taken out of her proper course. A may prove these
statements, because they would be admissible between third parties, if he were dead, under section 32,
clause (2).

Section 32:

Subsection (2) in particular shows that any entry or memorandum made in books
kept in the ordinary course of business or in the discharge of professional duty is a
statement, though there is no question of communicating it to another person. Similarly,
sub-section (6) shows that statements relating to the existence of an relationship made
in any will or deed relating to the affairs of the family, or in any family pedigree, or

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upon any tombstone, or family portrait are statements though there is no question of
their communication to another person.

[Bhogilal Chunilal Pandya vs. The State of Bombay - AIR 1959 SC 356 - 04.11.1958 - SC - 3 judge
bench].

PREVIOUS STATEMENT

PREVIOUS STATEMENT - WHAT IS PREVIOUS STATEMENT?

Whether under the provision of section 145 I.E.A, a subsequent statement made
after the filing of the charge-sheet be treated as a ‘previous statement’ and be
utilised for the purpose of section 145 IEA thereof?

Having carefully considered the submissions made on behalf of the respective

parties, we are inclined to hold that, from the scheme of the Cr.P.C and the Evidence
Act, it appears that the investigation and the materials collected by the prosecution
prior to the filing of the charge-sheet u/s 161 of the Code, are material for the
purposes of section 145 of the Evidence Act, 1872. The expression ‘previous
statements made’ used in section 145 of the Evidence Act, cannot, in our view, be
extended to include statements made by a witness, after the filing of the charge-
sheet. In our view, section 146 of IEA also does not contemplate such a situation and
the intention behind the provisions of section 146 appears to be to confront a
witness with other questions, which are of general use nature, which could shake
his credibility and also be used to test his veracity. The aforesaid expression must,

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therefore, be confined to statements made by a witness before the police during
investigation and not thereafter [State of N.C.T of Delhi vs. Mukesh - 2013(6) SCALE
701=(2013)2 SCC 587 [3 judge bench].

The above judgment is overruled in this judgment: On bare perusal of Section 145
of the Indian Evidence Act, we find that the section does not put any limitation that
the previous statement must be during investigation nor creates a bar to a
statement subsequent to investigation being confronted to the witness if such
statement is in writing and is relevant as per the said provision. The only
requirement is the provision is that the statement should be in writing or should be
reduced to writing and relevant to the matter in question. No doubt, the judgment
of this Court in State (NCT of Delhi) v. Mukesh (supra) has expressed the view that
the previous statement must be the statement made during investigation only but
the said judgment is per incuriam. The view taken by the larger Bench of this Court
in Tara Singh v. The State (Supra) has not been referred to and thus, the law laid
down by larger Bench continues to be the binding law. Accordingly, we are of the
view that there was no bar to the previous statement being confronted to the
witness even if such statement was made after investigation subject to the
applicability of Section 145 [Jasdeep Kaur Chadha vs. State (Nct of Delhi) - Crl.Apl
Nos. 1405-1406 of 2017 (@ Special Leave Petition (Criminal) Nos. 9558-9559 of
2016) -14-08-2017 [2 judge bench]].

VALUE OF PREVIOUS STATEMENT:

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A previous statement can never be substantive evidence. It can be only either to
corroborate or contradict the witness whilst he is in the witness stand. A 161
statement suffers from an additional disqualification, in as much as it cannot be
used to corroborate the testimony of the witness [Bala vs. State - 2014-1-LW(Cri)
213(Mad-DB)].

WHAT IS THE USE OF ‘PREVIOUS STATEMENT’?

If a previous statement made by a person can be used to corroborate his evidence

given before the Court, on principle, we do not see any reason why such previous
statement cannot be used to contradict and also for the other purposes referred to
above [N. Rama Reddy & Ors vs. V.V.Giri & Ors - AIR 1971 SC 1162].

SUBSTANTIVE EVIDENE

WHAT IS SUBSTANTIVE EVIDENCE? - EVIDENCE BEFORE COURT:

Substantive evidence is the evidence of the witness in the court on oath, which can
never be rendered inadmissible on this count [Sidhartha Vashisht @ Manu Sharma
- AIR 2010 SC 2352=2010(4) SCALE 1].

WHAT IS THE MEANING OF THE EXPRESSION ‘SUBSTANTIVE EVIDENCE’?

The evidence Act does not define this. It is the creature of judiciary and its
meaning is traceable to the definition of the word evidence in section 3 of the

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Evidence Act. Oral evidence means statements made by a witness in the witness
stand on oath in the court which conducts the inquiry or trial in connection with
matters of fact. This is called substantive evidence. It should not be confused with
the expression substantial evidence. Substantial evidence falls within the province of
appreciation of evidence. Statements of witnesses in the trial court about facts they
have perceived by senses is substantive evidence [R.Murugesan vs. State -
Manu/TN/0148/2014].

DYING DECLARATION IS A SUBSTANTIVE EVIDENCE [THE ONLY EXCEPION] [ss. 154,

155, 161, 164]:

It is true that dying declaration is a substantive piece of evidence to be relied on

provided it is proved that the same was voluntary and truthful and the victim was in
a fit state of mind [Nallapati Siviah vs. Sub-Divisional Officer - AIR 2008 SC
19=2007(11) SCALE 477]. [Give murder case example]

WHAT ARE NOT SUBSTANTIVE EVIDENCES?

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 1. ACCIDENT REGISTER/INJURY CERTIFICATE3.
2. AFFIDAVIT - FILED IN EARLIER PROCEEDINGS4.
3. FIR5.
4. HAND WRITING EXPERT REPORT NOT A SUBSTANTIVE EVIDENCE - just an opinion 6.
5. INQUEST REPORT7

3
D. Sudhakar & Others Versus The State of Tamil Nadu, rep by Inspector of Police,
Neyveli Thermal Police Station, Neyveli – 2014 (1) MWN (Cr) 589=2014 (2) MLJ(Crl)
282=2014 (2) LW(Crl) 205.

4
S.P.D. KARUPPAIYA Vs STATE - (2009) 1 LW(Cri) 132.

5
C.Magesh and Others vs. State of Karnataka - AIR 2010 SC 2768=2010(4) SCALE
520=(2010)5 SCC 645

6
Magan Bihari Lal vs. The State of Punjab - AIR 1977 SC 1091=1977 Cr.L.J 711(SC)

7
Pandurang vs. The State of Hyderabad - AIR 1955 SC 216=1955 Cr.L.J 572(SC)=(1955)1
SCR 1083

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 6. INQUEST REPORT
7. SECTION 162 Cr.P.C8.
8. TEST IDENTIFICATION PARADE (S.9 IEA) : Even a TIP before a Magistrate is
otherwise hit by Section 162 of the Code. Therefore to say that a photo
identification is hit by Section 162 is wrong. It is not a substantive piece of
evidence. It is only by virtue of Section 9 of the Evidence Act that the same
i.e. the act of identification becomes admissible in Court9.
9. POST-MORTEM REPORT10
10. MEDICAL WITNESS - REPORT - NOT A SUBSTANTIVE PIECE OF EVIDENCE - DOCTOR’S
DUTY11.

8
PERIASAMI AND ANOTHER vs STATE OF T.N - (1997) 1 LW(Cri) 169 (SC)=(1997) MLJ (Cri)
222 (SC)= (1996) 6 SCC 457=(1997) SCC(Cri) 121.

9
Sidhartha Vashisht @ Manu Sharma vs. State of Delhi - AIR 2010 SC 2352=2010(4)
SCALE 1; Mulla and another vs. State of U.P – (2010)3 SCC 508.

10
MADHU @ MADHURANATHA AND ANOTHER vs STATE OF KARNATAKA - (2013) 14
SCALE 502 : (2014) 12 SCC 419 : (2014) 6 SCC(Cri) 765.

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 11. JUDICIAL CONFESSION/STATEMENT (S.164 Cr.P.C)12 also see [State of Delhi vs. Shri
Ram Lohia – AIR 1960 SC 490_1960 Cr.L.J 679 (SC) followed in R.Murugesan vs. State –
Manu/TN/0148/2014] also see IN RE: TO ISSUE CERTAIN GUIDELINES REGARDING
INADEQUACIES AND DEFICIENCIES IN CRIMINAL TRIALS VS. THE STATE OF
ANDHRA PRADESH & ORS – SUO MOTO WRIT (CRL) NO. (S) 1/2017 (3 JUDGE
BENCH S.A.BOBDE, L.NAGESWARA RAO AND S.RAVINDRA BHAT).

12. Evidentiary value of SECTION 164 - MARKING OF DOCUMENT - CANNOT BE

MARKED13.

One such suggestion is as under:

11
Ghulam Hassan Beigh Vs. Mohammad Maqbool Magrey and Others - Criminal Appeal
No. Crl.A. No.-001041-001041 of 2022 - Decided on : 26-07-2022 – AIR 2022 SC 5454.

12
Udhyanithi VS State through The Inspector of Police, Budalur Police Station, Thanjavur
– 2020 1 LW(Cri) 95=2019 0 Supreme(Mad) 2314

13
R.Palanisamy vs. State – 2013-2-LW (Crl) 169 (Mad-DB)=2013(2) MLJ (Crl) 812 (Mad-
DB)

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 “11. The practice of omnibus marking of s. 164 statement of witness deserves to be
deprecated. The relevant portion of such prior statements of living persons used for
contradiction or corroboration u/s 145/157 of the Evidence Act deserves to be marked
separately and specifically”14.

RELEVANCY & ADMISSIBILITY

RELEVANT - ADMISSIBILITY, RELIABILITY & OBJECTION:

14
In Re:- To issue certain guidelines regarding inadequacies and deficiencies in criminal
trials – 2017 SCC Online SC 298 cited in Murugasamy vs. State – (2017)4 MLJ (crl) 129
(Mad-DB) – confirmed in IN RE: TO ISSUE CERTAIN GUIDELINES REGARDING
INADEQUACIES AND DEFICIENCIES IN CRIMINAL TRIALS VS. THE STATE OF ANDHRA
PRADESH & ORS – SUO MOTO WRIT (CRL) NO. (S) 1/2017 (3 JUDGE BENCH S.A.BOBDE,
L.NAGESWARA RAO AND S.RAVINDRA BHAT)

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The expressions 'relevancy and admissibility' are used as synonyms but their legal
implications are distinct and different for more often than not facts which are
relevant may not be admissible, for example, communication made by spouses
during marriage or between an Advocate and his client though relevant are not
admissible; so also facts which are admissible may not be relevant, for example,
questions permitted to be put in cross-examination to test the veracity or impeach
the credit of witnesses, though not relevant are admissible. The probative value of
the evidence is the weight to be given to it which has to be judged having regard to
the facts and circumstances of each case [1998 CRI. L. J. 2515 (SC) - Ram Bihari
Yadav v. State of Bihar and others].

JUDGE MADE WORDS FOR EVIDENCE

WORDS NOT FOUND IN EVIDENCE ACT BUT JUDICIARY DISCOVERY:

Hostile, dying declaration [section 8 Ill, s. 104 Ill but not u/s 32], Circumstantial,
hearsay, last seen, res gestae e.t.c…

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 EXAMINATION OF WITNESSES

SECTION 3 - PROVED:

At the outset, it may be noted that the Evidence Act does not insist on absolute
proof for the simple reason that perfect proof in this imperfect word is seldom to be
found. That is why under Section 3 of the Evidence Act, a fact is said to be 'proved'
when, after considering the matters before it, the Court either believes it to exist or
considers its existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that it exists. This
definition of 'proof' does not draw any distinction between circumstantial and other
evidence15.

WHAT IS EVIDENCE?

WHETHER ILLEGALLY OBTAINED DOCUMENTS AS EVIDENCE:

It is settled proposition, that even if a document is procured by improper or illegal

means, there is no bar to its admissibility of it is relevant and its genuineness is
proved. If the evidence is admissible it does not matter how it has been obtained.
However, as a matter of caution, the court in exercise of its discretion may disallow
certain evidence in a criminal case if the strict rules of admissibility would operate
unfairly against the accused. More so, the court must conclude that it is genuine and
free from tampering or mutilation. This court repelled the contention that obtaining
evidence illegally by using tape recordings or photographs often Art.20(3) and 21 of

15
State of Maharashtra Versus Mohd. Yakub & Others - AIR 1980 SC 1111=1980 Cr.L.J
793 (SC)=1980 (3) SCC 57= 1980 SCC (Cri) 513=1980 (2) SCR 1158=1980 (1) MLJ (Crl)

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the Constitution of India as acquiring the evidence by such methods was not the
procedure established by law16.

It is a settled legal proposition that evidence collected even by improper or illegal

means is admissible if it is relevant and its genuineness stands proved. However, the
Court may be cautious while scrutinizing such evidence. In such a fact-situation, it
may be considered a case of procedural lapse on the part of the Investigating Officer
and it should not be discarded unless the Appellant satisfies the Court that any
prejudice has been caused to him17.

WHETHER ALL FACTS ARE RELEVAN & ADMISSIBILITY, RELIABILITY? - NO:

603 (SC).

16
Yusuf Ali Esmail Nagree vs. The State - AIR 1968 SC 147; Magraj Patodia vs. R.K.Birla
& Others - 1970(2) SCC 888;R.M.Malkani vs. State of Maharasthtra - AIR 1973 SC 157;
Pooran Mal vs. Director of Inspection - AIR 1974 SC 348;State vs. Navjot Sandhu @ Afsan
Guru - (2005)11 SCC 600 reiterated in Umesh Kumar vs. State of A.P - (2013)10 SCC
591=2013 AIR SCW 6062=2014(1) SCC (Cri) 338=2014(2) SCJ 209=AIR 2014 SC 1106

17
MADHU @ MADHURANATHA AND ANOTHER vs STATE OF KARNATAKA - (2013) 14
SCALE 502 : (2014) 12 SCC 419 : (2014) 6 SCC(Cri) 765.

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The expressions 'relevancy and admissibility' are used as synonyms but their legal
implications are distinct and different for more often than not facts which are
relevant may not be admissible, for example, communication made by spouses
during marriage (section 122) or between an Advocate and his client (section 126)
though relevant are not admissible; so also facts which are admissible may not be
relevant, for example, questions permitted to be put in cross-examination to test
the veracity or impeach the credit of witnesses, though not relevant are
admissible. The probative value of the evidence is the weight to be given to it which
has to be judged having regard to the facts and circumstances of each case18.

A BETTER EXPLANATION: QUESTION OF ADMISSIBILITY OF EVIDENCE:

A PERSON IS NOT IN THE SOC IS A ‘FACT’ AND IS RELEVANT AS PER SECTION 11 OF

EVIDENCE ACT: Questions of admissibility, being questions of law, have to be
determined by the judge. Sec. 5 of the Act declares that “evidence may be given in
any suit or proceeding of the existence or non-existence of every fact in issue and of
such other facts as hereinafter declared to be relevant and of no others”. Relevancy
and admissibility are not the same always. Relevancy is based on common sense
and logic while admissibility is governed by rules of law.

THE SAME ALIBI IS ADMISSIBLE AS PER SECTION 136: Para 2 of sec. 136 has to be
read with sec. 104 and the two illustrations attached thereto. Sec. 104 deals with
‘burden of proving a fact to be proved to make evidence admissible’. The two

18
1998 CRI. L. J. 2515 (SC) – Ram Bihari Yadav v. State of Bihar and others,

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examples there given are similar to ill. (a) and (b) below sec. 136 [“ UNDERTAKES TO
GIVE SUCH PROOF”].

TO PROVE THE SAME ANY PERSON SHALL BE EXAMINED AS WITNESS AS PER SECTION 118
[Who may testify]:

WHAT IS CORROBORATION & CONTRADICTION IN A COMMON PARLANCE?

Corroboration means witness confirms his/her previous statement
Contradiction means witness is inconsistent with his/her previous statement
CHIEF EXAMINATION [CORROBORATION]

SECTION 141 - LEADING QUESTIONS:

Leading question to be one, which indicates to the witnesses the real or supposed
fact, which, the prosecutor / (plaintiff) expects and desires to have confirmed by the
answer. Leading question may be used to prepare him to give the answers to the
questions about to be put to him for the purpose of identification or to lead him to
the main evidence or fact in dispute. The attention of the witness cannot be
directed in chief examination to the subject of the enquiry/trial. The Court may
permit leading question to draw the attention of the witness which cannot
otherwise be called to the matter under enquiry, trial or investigation. The discretion
of the court must only be controlled towards that end but a question which suggest
to the witness, the answer the prosecutor expects must not be allowed unless the
witness, with the permission of the court, is declared hostile and cross-examination
is directed thereafter in that behalf. Therefore, as soon as the witness has been
conducted (sic) to the material portion of his examination, it is generally the duty of
the prosecutor to ask the witness to state the facts or to give his own account of the
matter making him to speak as to what he had seen. The prosecutor will not be
allowed to frame his questions in such a manner that the witness by answering

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merely "yes" or "no" will give the evidence which the prosecutor wishes to elicit.
The witness must account for what he himself had seen. Sections 145 and 154 of
the Evidence Act are intended to provide for cases to contradict the previous
statement of the witnesses called by the prosecution. Ss. 143 and 154 provides the
right to cross-examination of the witnesses by the adverse party even by leading
questions to contradict answers given by the witnesses or to test the veracity or to
drag the truth of the statement made by him. Therein the adverse party is entitled
to put leading questions but S. 142 does not give such power to the prosecutor to
put leading questions on the material part of the evidence which the witnesses
intend to speak against the accused and the prosecutor shall not be allowed to
frame questions in such a manner which the witness by answering merely yes or no
but he shall be directed to give evidence which he witnessed. The question shall not
be put to enable the witness to give evidence which the prosecutor wishes to elicit
from the witness nor the prosecutor shall put into witness's mouth the words which
he hoped that the witness will utter nor in any other way suggest to him the answer
which it is desired that the witness would give. The counsel must leave the witness
to tell unvarnished tale of his own account. Sample leading questions extracted
hereinbefore clearly show the fact that the prosecutor led the witnesses what he
intended that they should say the material part of the prosecution case to prove
against the appellant which is illegal and obviously unfair to the appellant offending
his right to fair trial enshrined under Art. 21 of the Constitution. It is not a curable
irregularity19. Supreme Court answers about leading question in domestic enquiry
held that no doubt some of the questions appeared to be leading but they were
respecting the matter of record and too much legalism cannot be expected from a

19
AIR 1993 SUPREME COURT 1892 "VARKEY JOSEPH V. STATE OF KERALA, REP. BY THE

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domestic enquiry of this character20.

SECTION 141 - WHEN LEADING QUESTIONS ALLOWED - PUBLIC PROSECUTOR:

Section 142 requires that leading questions cannot be put to the witness in
examination-in-chief or in re-examination except with the permission of the court.
The court can, however, permit leading question as to the matters which are
introductory or undisputed or which have, in its opinion, already been sufficiently
proved [Sat Paul v. Delhi Administration - AIR 1976 SC 294 cited in Krishan Chander vs.
State of Delhi - (2016)1 SCC (Cri) 725=(2016)3 SCC 108=AIR 2016 SC 298; Dandu Lakshmi
Reddy vs. State of A.P - Crl.A. No. 1110 of 1997 - 17.8.1999 - (1999)5 SCALE 118 and G.
Venkatanarayanan & Another Versus State represented by the Inspector of Police CBI,
ACB, Chennai - Criminal Appeal Nos.161 and 162 of 2016 - 19.07.2017- (2017) 4 MLJ (Crl)
49].

CHIEF EXAMINATION - PROSECUTOR DUTY:

The situation in a case where the prosecution cited two categories of witnesses to
the occurrence, one consisting of persons closely related to the victim and the other
consisting of witnesses who have no such relation, the Public Prosecutor's duty to
the Court may require him to produce, witnesses from the latter category, also

CIRCLE INSPECTOR OF POLICE"

20
AIR 1968 SUPREME COURT 236 "EMPLOYERS OF FIRESTONE TYRE AND RUBBER CO.
(PRIVATE) LTD. V. THE WORKMEN"

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subject to his discretion to limit to one or two among them. But if the Public
Prosecutor got reliable information that any one among that category would not
support the prosecution version he is free to state in court about that fact and skip
the witness from being examined as a prosecution witness. It is open to the defence
to cite him and examine him as a defence witness. The decision in this regard has to
be taken by the Public Prosecutor in a fair manner. He can interview the witness
beforehand to enable him to know well in advance the stand which that particular
person would be adopting when examined as a witness in court21.

CROSS EXAMINATION

WHAT IS CROSS-EXAMINATION?

It is the jurisprudence of law that cross-examination is an acid-test of the

truthfulness of the statement made by a witness on oath in examination-in-chief,
the objects of which are:

1. To destroy or weaken the evidentiary value of the witness of his adversary;

2. To elicit facts in favour of the cross-examining lawyer’s client from the mouth of
the witness of the adversary party;

21
BANTI @ GUDDU Vs STATE OF MADHYA PRADESH - AIR 2004 SC 261=(2004) CriLJ 372
(SC)= (2003) 8 JT 392=(2003) 9 SCALE 215=(2004) 1 SCC 414.

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 3. To show that the witness is unworthy of belief by impeaching the credit of the
said witness; and the questions to be addressed in the course of cross-
examination are to test his veracity; to discover who he is and what is his
position in life; and to shake his credit by injuring his character22.

CROSS-EXAMINATION - RIGHT TO CROSS-EXAMINATION:

Right to cross-examination is integral part of natural justice23.

NO CROSS - IT IS NOT NECESSARY TO CROSS-EXAMINE EVERY WITNESS:

There is no gainsaying that every prosecution witness need not be cross –examined
by the defence. It all depends upon the nature of the deposition and whether the
defence disputes the fact sought to be established thereby. Formal witnesses are
not at times cross-examined if the defence does not dispute what is sought to be
established by reference to his/her deposition. The decision to cross-examine is

22
Jayendra Vishnu Thakur vs. State of Maharashtra & Another - 2009(3) MLJ (Crl)
1024(SC)=2009(7) SCC 104 also see Chinnamani vs. The State - Crl. A. No. 616 of 2022 -
06.03.2023 - MAD – DB.

23
Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra – 2012 AIR SCW 6177=(2012)
11 SCALE 39 =(2013) 4 SCC 465.

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generally guided by the nature of the depositions and whether it incriminates the
accused24.

CROSS-EXAMINATION - NARRATIVE FORM - SECTION 276 Cr.P.C:

In almost all the courts in the country holding trials in civil and criminal cases, the
oral examination of the witnesses though conducted in question-answer form by the
counsel, is generally recorded in narrative by the presiding judges. The court has
power to regulate the manner of recording evidence. In spite of the manner of
recording evidence being in narrative the presiding judge can wherever necessary
direct a particular question or group of questions to be recorded in question-answer
form. Wherever necessary a note as to demeanour of a witness can always be made
by the presiding judge before whom the witness is being examined and such note
on demeanour made in the presence of the witness and counsel for both the parties
would be more useful to the trial court itself while hearing arguments of the counsel
for the parties at the end of the trial and also for the appellate court rather than a
mere record of the statement in question-answer form. Incidentally, and
interestingly, it may be noticed that when the Code of Criminal Procedure, 1973 was
enacted, repealing the 1898 Code, section 276 was introduced providing for
evidence to be ordinarily taken down in the form of question and answer but

24
P.SANJEEVA RAO VS. THE STATE OF A.P – (2012)4 MLJ (CRI) 34 (SC)=2012 (6) SCALE
9=(2012)4 SUPREME 203=AIR 2012 SC 2242=(2012)7 SCC 56

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vesting a discretion in the presiding judge to record the evidence in the form of a
narrative. Within three years the Law Commission of India found this system causing
delay in trial and hence not workable and on its recommendation, by the Code of
Criminal Procedure (Amendment) Act (45 of 1978), section 276 was amended so as
to provide that in trial before courts of session evidence shall ordinarily be taken
down in the form of a narrative but the presiding judge may in his discretion take
down or cause to be taken down any part of such evidence in the form of question
and answer. Thus recording of evidence in narrative form is the rule. Such mode of
recording evidence is statutorily provided for session trials where life and liberty of
persons is at stake25.

WHAT DOCUMENT CANNOT BE MARKED - MARKING OF 161 STATEMENT IS

ILLEGAL - MARKING OF 161 STATEMENT - MARKING - EXHIBITING:

Let us first understand what is proper procedure. A witness may have stated in
statement under Section 161 Cr.P.C. that 'X murdered Y'. In Court witness state 'Z
murdered Y'. This is a contradiction. Defence counsel or Court and even prosecution
if witness is declared hostile having resiled from previous statement, is to be
confronted to bring contradiction on record. Attention of the witness must be drawn
to the previous statement or statement under Section 161 Cr.P.C. where it was
stated that 'X murdered Y'. Since Section 145 of the Indian Evidence Act use the
word being proved, therefore, in the course of examination of the witness, previous
statement or statement under Section 161 Cr.P.C. will not be exhibited but shall be
assigned mark, and the portion contradicted will be specified. The Trial Court in the
event of contradiction has to record as under26.

25
Makhan Lal Bangal v. Manas Bhunia – (2001) 2 SCC 652.

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MARKING OF 161 STATEMENT - SPECIFIC PORTION:

We have carefully gone through the evidence of PW5 in order to satisfy our
conscience, and find that the Trial Court and the High Court have on an evaluation
of PW5's evidence, rightly concluded that it supported the prosecution's version.
Thus, the contention as raised above cannot be accepted. PW5 has deposed that at
about 9.30 a.m., he saw the accused/appellant sitting in the driver's seat in the
vehicle, and the victim by his side, in her school uniform. There was a contradiction
(Ext. D4) in the evidence of PW5 with respect to the deceased being seated in the
front seat of the vehicle, which according to us is not material. Unfortunately, the
Trial Court, instead of marking a specific portion of the statement of PW5, where he
has contradicted his earlier version relating to the aforesaid version, has marked the
entire statement recorded by the police under Section 161 of the Code of Criminal
Procedure (in short "the CrPC")27.

MARKING OF 161 STATEMENT - CANNOT BE MARKED - CURIOUSLY THE 161 STATEMENT IS

MARKED AND EXHIBITED - WRONG METHODOLOGY [Rameshwar Singh vs. State of J&K –
AIR 1972 SC102=(1971)2 SCC 715 – 3 judge bench]:

CONTRADICTION

26
Anjan Ganguly & Ors. - vs State Of West Bengal - on 12 March, 2013 - Criminal Revision
No.1868 of 2012.

27
SACHIN KUMAR SINGHRAHA vs STATE OF MADHYA PRADESH – AIR 2019 SC
1416=(2019) 1 Crimes 278 (SC)=(2019) 5 Scale 39.

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SECTION 145 - HOW TO CONTRADICT PREVIOUS STATEMENT OF WITNESS?

Section 162 Cr.P.C bars use of statement of witnesses recorded by the police except
for the limited purpose of contradiction of such witnesses as indicated there. The
statement made by a witness before the police under section 161(1) Cr.P.C can be
used only for the purpose of contradicting such witness on what he has stated at the
trial as laid down in the proviso to section 161(1) Cr.P.C. The statements under
section 161 Cr.P.C recorded during the investigation are not substantive pieces of
evidence but can be used primarily for the limited investigation are not substantive
pieces of evidence but can be used primarily for the limited purpose:

1. Of contradicting such witness by an accused under section 145 of Evidence Act;

2. The contradiction of such witness by an accused under section 145 of Evidence Act;

3. The contradiction of such witness also by the prosecution but with the leave of the
court; and,

4. The re-examination of the witness if necessary.

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

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straightaway 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 investigation officer. Statement before the
Investigation 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 contradiction28.

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 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 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

28
V.K.Mishra & Others vs. State of Uttarakhand & another -AIR 2015 SC 3043=2015 AIR
SCW 4443=2015 Cr.L.J 4021 (SC)=2015(3) MLJ (Crl) 727 (SC)=2015(8) SCALE 270 – 3
Judge Bench.

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made the 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 [V.K.Mishra
& Others vs. State of Uttarakhand & another -AIR 2015 SC 3043=2015 AIR SCW
4443=2015 Cr.L.J 4021 (SC)=2015(3) MLJ (Crl) 727 (SC)=2015(8) SCALE 270 – 3 Judge
Bench].

SECTION 145 - SECTION 155(3) - BE READ TOGETHER:

Section 145 of the Indian Evidence Act 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
statements 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 writing can be proved, be called to those parts of it which are to be
used for the purpose of contradicting him. Sections 155 (3) and 145 of Indian
Evidence Act deal with the different aspects of the same matter and should,
therefore, be read together29.

SECTION 145 - WITHOUT BEING SHOWN : Section 145 of the Evidence Act is divided
into two parts. The first part is, without showing or proving the previous statement,
general questions can be put to the witness in the cross examination. In this case,

29
Balakram vs. State of Uttarakhand and Ors - Criminal Appeal No. 694 of 2017 (Arising
out of SLP (Crl.) No. 9314 of 2016) - 19.04.2017 - 2017/INSC/365=MANU/SC/0483/2017.

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without showing the Accident Register copy, if P.W. 1 had been asked, "Did you tell
Dr. Naveen that the incident took place in your house?" for which if he had replied
"Yes", then that is sufficient. If he had replied "No", then the second part of Section
145 comes into play if the defence wants to contradict him and thereby impeach the
credibility of his testimony under Section 155(3) of the Evidence Act. Then the
attention of P.W. 1 must be drawn to the statement recorded by Dr. Naveen in the
Accident Register copy and an opportunity should be given to him to explain.
Without resorting to this procedure, it is not permissible to prove a contradiction.
The following example given by the legal Colossus Vivian Bose, J. in Bhagwan Singh
v. State of Punjab - AIR 1952 SC 214 : LNIND 1952 SC 30 : (1952) 1 MLJ 816, is locus
classicus on this aspect.

“22. A witness is called and he says in chief, "I saw the accused shoot X". In cross
examination he resiles and says "I did not see it at all." He is then asked "but didn't
you tell A, B & C on the spot that you had seen it?" He replies "yes, I did." We have,
of set purpose, chosen as an illustration a statement which was not reduced to
writing and which was not made either to the police or to a Magistrate. Now, the
former statement could not be used as substantive evidence. I could only be used as
corroboration of the evidence in chief under S. 157 of the Evidence Act or to shake
the witness's credit or test his veracity under S. 146. Section 145 is not called into
play at all in such a case. Resort to S. 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 S. 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

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which no further proof is necessary because of the admission that it was made” 30.

SECTION 145 - SECTION 164 - CONTRADICTION - CANNOT BE COMPARED BY THE DEFENCE

COUNSELS:

For example, if the witness has stated in the complaint and 164 statement that ‘A’
gave the lethal blow on the head but in the witness box, if he says that ‘B’ gave the
lethal blow on the head, then there is contradiction between the complaint and 164
statement on one hand, and the substantive evidence in the witness stand on the
other hand. Many a time defence counsels remain silent in the fond hope that they
can highlight the contradiction by simply reading to the Judge and comparing the
former statements [complaint and 164 statement] and the deposition of the
witness. This is impermissible. The corroborative evidence namely the former
statement should be put to him and his attention should be drawn to the
contradiction between what he stated in the former statement and the substantive
evidence. In the above example he should be asked you have stated in the court
that ‘B’ inflicted the lethal blow, but in your complaint and 164 statement you have
stated ‘A’ has inflicted the lethal blow, is it not? Defence counsels will get scared to
ask this question because of fear that he may explain away. For that sake mandates
of section 145 Evidence Act cannot be jettisoned. If it wants to contradict the
witness with a former statement, there is no escape route other than 145 of the
Evidence Act. Only contradiction between two substantive evidences can be read
out to the judge. For example, in a case, if PW.1 says in his evidence that ‘A’ gave the
lethal blow and PW.2 says the ‘B’ gave the lethal blow, then there are two
contradictory substantive pieces of evidences. Then the defence counsel can read

30
D.Sudhakar vs. State - 2014(1) MWN (Cr.) 58 (DB).

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PW.1 and PW.2’s evidence and show the contradictions31.

SECTION 145 - ACCIDENT REGISTER - CONTRADICTION:

The learned senior counsel for the Appellants is holding the Accident Register copies
[Exs.P.22, 23 & 24] in one hand and the evidence of PWs 1 & 2 in the other hand and
he is arguing that they contradict each other and so these witnesses are
untrustworthy. We are sorry to say that such a procedure is unknown to law.
Therefore, we reject the contention of the learned senior counsel for the Appellants
that there is contradiction in the evidence of PW1, PW2 vis-a-vis the entry by
Dr.Naveen in English in Exs.P22, P23 & P24 since the contradictions have not been
established in a manner known to law32.

SECTION 145 - HOW TO CONTRADICT INVESTIGATION OFFICER?

We came across sumptuous reference to statements of witnesses recorded under

Section 161 of the Code of Criminal Procedure during investigation in the judgment
of the High Court. It is interesting to notice that the High Court found fault, and very
rightly, with the trial Court for using such statements as evidence; yet, it fell into the
same error and freely referred to such statements for coming to findings on material
aspects. In Podda Narayana vs. State of A.P 33 it was held that a statement recorded

31
R.Murugesan vs. State – 2014(1) TLNJ 134 (Mad-DB)

32
D.Sudhakar vs. State - 2014(1) MWN (Cr.) 58 (DB)

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by the police officer during investigation is inadmissible in evidence and the
proper procedure is to confront the witness with the contradictions when they are
examined and then ask the Investigation Officer regarding the contradiction34.

OMISSION:

It is true that as a part of fair trial the investigating officer should be examined in the
trial cases especially when a serious sessions trial was being held against the
accused. If any of the prosecution witnesses give any evidence contrary to their
previous statement recorded u/s 161 CR.P.C. or if there is any omission of certain
material particulars, the previous statement of these witnesses could be proved only
by examining the investigating officer who must have recorded the statement of
these witnesses u/s 161 CR.P.C35.

33
(1975)4 SCC 153=(1973) SCC (CRI) 427=AIR 1975 SC 1252

34
STATE (DELHI) VS. LAXMAN KUMAR – 1986 MLJ (CRI) 86 (SC) (VOL-30)=[1985] 4 SCC
476=[1985] 2 Crimes(SC) 758=[1986] CrLJ 155(SC).

35
STATE OF KARNATAKA vs BHASKAR KUSHALI KOTHARKAR AND OTHERS - (2004) 7
SCALE 350=(2004) 7 SCC 487=(2004) SCC(Cri) 1963=(2004) Sup3 SCR 635=(2004) 6

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SECTION 145 - CONTRADICTION ONLY APPLY TO WRITTEN STATEMENT:

If the former statement was in writing or was reduced to writing, section 145 of the
Evidence Act requires that attention of the witness must be called to those parts of
it which are used for the purpose of contradicting him. Here the statement allegedly
made by PW-6 to DW-1 was not in writing, nor was it reduced to writing.
Nonetheless if the object of examine DW-1 as a witness was to discredit PW-6 it is
only fair to insist that PW-6 himself should have been given an opportunity to
explain it. Without PW-6 being asked about that aspect, it is unreasonable to expect
PW-6 to explain about it. Hence it is immaterial that the statement claimed by DW-1
as made to him by PW-6 was not reduced to writing. When PW-6 was cross-
examined by the defence counsel he was not asked anything about the alleged
statement made by him to DW-1. In such a situation we cannot give any credence to
the evidence of DW-136.

SECTION 145 - CANNOT BE USED TO CONTRADICT DEFENCE OR COURT WITNESS

[Tahsildar Singh And Another vs The State Of Uttar Pradesh on 5 May, 1959 - AIR 1959 SC
1012=1959 SCR Supl (2) 875]:

SECTION 145 - CONTRADICTED STATEMENTS - NOT SUBSTANTIVE EVIDENCE:

[Whether reiterating the portions of the previous statements in the deposition

Supreme 472.

36
MAJID VS. STATE OF HARYANA – AIR 2002 SC 382

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would become substantive evidence? - NO] Section 145, Evidence Act, is not
attracted because that section relates to previous statements in writing which are to
be used for the purpose of contradiction alone. Statements of that kind do not
become substantive evidence and though the evidence given in the trial can be
destroyed by a contradiction of that kind, the previous statements cannot be used
as substantive evidence and no decision can be grounded on them34.

In the light of the above findings, when we peruse the chief examination of all the
witnesses, it is seen that none of the witnesses supported the prosecution version in
any manner. P.W.1-brother of the deceased never whispered anything about the
presence of the accused and causing injuries. Similar in the case of other
eyewitnesses. The entire statement of the witnesses recorded under Section 161(3)
Cr.P.C., were put to the witnesses in the cross examination and in the last line it is
suggested that they have given a false evidence in order to support the accused.
From the nature of the questions put to the witnesses, we are of the firm view that
what was extracted from the witness is the statement recorded under Section
161(3) Cr.P.C. and the suggestion put to the witnesses, wherein they denied
witnessing the occurrence. Therefore, at no stretch of imagination such recording /
extraction of 161(3) statement in the cross examination would be construed as
substantive piece of evidence. Even assuming that the witnesses admitted in the
cross examination that they have stated the above statement before the
Investigating officer, such evidence would be useful only to prove the one particular
fact that the said witness has given a statement under Section 161(3) Cr.P.C., not for
any other purpose. Further Madras High Court has held that therefore, even the
witnesses admitted in the cross examination about the nature of the statement
given to the Investigating Officer, such statement can never construed to be a
substantive piece of evidence to prove the complicity of the accused. Substantive
evidence means the evidence tendered by the witnesses on oath during the criminal

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trial. Therefore, mere repeating the statement contained in 161(3) Cr.P.C by the
public prosecutor under the pretext of cross examination of the witness who turned
hostile can never be substantive evidence. It is relevant to note that the purpose of
treating the witnesses hostile and cross examination is to get some materials or to
unearth truth from the witnesses. Finally Madras High Court has concluded that
Therefore, the learned trial Judge's conclusion that the witnesses admitted the
occurrence is nothing but figment of imagination of the trial Judge. [Kannan @
Mannanai Kannan & Others Versus State Represented by the Inspector of Police,
Madurai – Crl.A.(MD) No. 3 & 22 of 2020 – 28-02-2022].

SECTION 145 - PREVIOUS STATEMENT or FORMER STATEMENT:

It was entitled to use the former statement either to contradict what was said in
cross examination or to corroborate what was said in chief37.

PROBLEMS IN CROSS-EXAMINATION:

NO CROSS - WITNESS DIED BEFORE CROSS-EXAMINATION - NORMAL RULE IS THE

EVIDENCE IS OF NO USE UNLESS OPPORTUNITIES HAVE BEEN WASTED BY THE DEFENCE:

Rameshwar Lal, one of the attesting witnesses, declared that he was present and
saw the testator affix his signature thereto. The estate was valued at Rs. 3, 000. An
objection was put in on behalf of Srimati Kamta Devi, the daughter of the testator.
At the trial, amongst others, evidence was given by the attesting witness Sahdeo
Singh as to the due execution of the will and the testamentary capacity of the
testator. The other attesting witness Rameshwar Lal was also called as a witness.

37
Bhagwan Singh vs. State of Punjab - AIR 1952 SC 214.

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After examination-in-chief his cross-examination began but before the cross-
examination was complete that witness died and consequently his evidence could
not be used as evidence in the case38.

CROSS-EXAMINATION - COURT CANNOT INTERFERE–:

According to him, when the life and liberty of a person is involved, care and caution
ought to have been taken not only by the defence counsel, but, also by the court.
When this argument was advanced by the learned counsel for the appellant, we
were of the opinion that when the defence counsel did not choose to cross examine
any one of the witnesses or fail to cross examine the witnesses or did not take part
in the proceedings properly, the little thing that can be done by the Trial Court is
only to see that the accused is properly represented and the Trial Court cannot
insist upon the defence counsel to put a particular question in a particular manner
and to take a particular defence. This is within the realm of the accused and his
counsel. The court cannot either advise, interfere or act in aid of defence counsel.
So, we were not impressed the way, in which, the arguments were advanced by the
learned counsel for the appellant39.

CROSS-EXAMINATION - ADOPTING OTHER ACCUSED CROSS:

38
Ishwardeo Narain Singh Versus Smt. Kamta Devi & Others - AIR 1954 SC 280

39
A.Sebastian vs. Inspector of Police, Kumapatti Police Station – Criminal Appeal No:262
of 2020; Crl.M.P No: 4046 of 2020; dt:04.03.2021.

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In our view, the second instance also has no substance. It is for the reason that the
appellant (A6) had an opportunity to cross-examine PW-3 and PW-4 on all the so-
called contradictions to the two witnesses but he failed to avail of this opportunity
by not cross-examining PW-3 and PW-4. On the other hand, the appellant adopted
the cross examination done by other accused on PW-3 and PW-4 and gave up his
right of cross-examination to these two witnesses. In this view of the matter; he
cannot now be permitted to find fault in the evidence of PW-3 and PW-4 and rely
upon some contradictions which otherwise do not show any contradiction much
less major one affecting their testimony40.

CROSS-EXAMINATION OF COURT WITNESS:

The object of section 311 Cr.P.C is to bring on record evidence not only from the
point of view of the accused and the prosecution but also from the point of view of
the orderly society. If a witness called by the court gives evidence against the
complainant, he should be allowed an opportunity to cross-examine. The right to
cross-examine a witness who is called by a court arises not under the provisions of
section 311, but under the Evidence Act which gives a party the right to cross-
examine a witness who is not his own witness. Since a witness summoned by the
court could not be termed a witness of any particular party, the court should give
the right of cross-examination to the complainant. These aspect were highlighted in
Jamatraj Kewalji Govani vs. State of Maharashtra41.

SECTION 137 - CROSS-EXAMINATION - ACCUSED CANNOT AVAIL AT THE LATER STAGE:

40
Bilal Hajar @ Abdul Hameed vs. State Rep By Inspector Of Police – Cri. Apl No. 1305 of
2008 – dt:10-10-2018 – AIR 2018 SC 4780.

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If, in spite of reasonable opportunities being afforded to a person like the second
respondent (A-3) in the instant writ appeal, he fails wilfully to exercise the said right
of cross-examination, on grounds, which do not cast any impression of
reasonableness, then it can safely be concluded, that the second respondent is
treading through a path of no return, whereby he tends to forfeit his valuable right
to cross-examine the witnesses produced by the prosecution, be it coded category
or otherwise. A person deliberately and wilfully refusing to exercise his right for
appearance and cross-examination in spite of his having been made aware of the
consequences, cannot be heard at a later point of time, to contend that the had a
valuable opportunity of cross-examining certain witnesses and hence they should be
recalled or tendered for cross-examination42.

CROSS-EXAMINATION - SURPRISE DOCUMENT - DEFENCE EXHIBIT:

Therefore, the approach of the Trial Court that there was no direct evidence let in
on behalf of the accused is incorrect in law. Rebuttal evidence can be by ways of
cross-examination and marking of documents through cross examination also. The
approach of the appellate court that oral evidence of PW.1 would not overcome the
inconsistency in the documentary evidence of Exhibits P.4, D.1 to D.3 are
unacceptable in law. Therefore, the findings of the Trial court as well as the

41
AIR 1968 SC 178 FOLLOWED IN RAMA PASWAN AND OTHERS VS. STAT EOF JHARKHAND
– AIR 2007 SCW 2779=2007 CR.L.J 2750 (SC)=(2007)5 SCALE 646

42
Superintendent of Police, C.B.I., S.I.T., Malligai, 30 Greenways Road, MADRAS Versus
The Addl. Superintendent, Special Sub-Jail, Poonamallee, Madras - 1995 (1) CTC 13: 1995
(1) MLJ(Crl) 320.

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appellate court are based on the reasonings, which cannot be the
petitioner/accused, is an occasion which commands this court to finding of the guilt
of the Trial court as well as the appellate court is liable to be interfered with 43.

RE-EXAMINATION - ONLY TO CLARIFY DOUBT:

The learned counsel for the State of M.P., however, contended that what was stated
in the said part of the evidence of PW-1, was referable to the inquest report and not
the FIR. We have examined the original which is in Hindi and the translation is
admittedly correct, A reading of this part of the evidence shows that this witness
was speaking about 2 reports. The first report which he refers to must be in regard
to the inquest in regard to which he says that he does not remember if the Police
took his signatures after the spot inspection. The latter part of the evidence
certainly refers to his complaint which he in specific terms states was written on the
spot only. Even assuming that there is some doubt as to the interpretation of this
part of his evidence since the same is not clarified by the prosecution by way of re-
examination, the benefit of doubt should go to the defence which has in specific
terms taken a stand that the FIR came into being only after the dead body was
recovered. We also notice that there is considerable doubt in regard to the place of
incident also44.

43
Ms.Rajalakshmi vs. Sri.P.Doss – 2022 (1) TLNJ 65 (crl) – Crl.R.C No: 274 of 2014;
dt:25.01.2022.

44
Ramsewak vs State of M.P - (2004)11 SCC 259= (2004) 4 SCALE 698= AIR 2004 SC
4592.

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 HOSTILE WITNESS

BEFORE A NORMAL RULE IS TO FAVOUR THE DEFENCE - BUT CHANGED IN THE

FOLLOWING JUDGMENT:

A hostile witnesses may not be rejected outright but the court has at least to be
aware that, prima facie, a witness who makes different statements at different times
has no regard for truth45. [DOCTRINE OF FALSUS IN UNO FALSUS IN OMNIBUS]

HOSTILE WITNESS - WHAT IS HOSTILE?

Normally, when a witness deposes contrary to the stand of the prosecution and his
own statement recorded u/s 161 Cr.P.C, the prosecution with the permission of the
court, can pray to the court for declaring that witness hostile and for granting leave
to cross-examine the said witness. If such a permission is granted by the court then
the witness is subjected to cross-examination by the prosecutor as well as an
opportunity is provided to the defence to cross-examine such witnesses, if he so
desires. In other words, there is a limited examination-in-chief, cross-examination by
the prosecutor and cross-examination by the counsel for the accused. It is
admissible to use the examination-in-chief as well as the cross-examination of the
said witness is so far as it supports the case of the prosecution46.

45
KARUPPANNA THEVAR & ORS VS. THE STATE OF T.N – AIR 1976 SC 980 – BENCH OF 3
JUDGES.

46
KRISHAN VS. STATE OF HARYANA – Criminal Appeal No. 766 of 2008 - 13-12-2012 -
2013 (5) SCJ 786= (2012) 12 SCALE 381=(2013) 3 SCC 280=(2013) 3 SCC(Cri)
125=(2012) 13 SCR 880.

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HOSTILE WITNESS - SECTION 154 - OPTIONS OPEN TO THE PUBLIC PROSECUTOR:

In the above situation, we are unable to hold that the trial judge has gone wholly
wrong in declining to exercise the discretion envisaged under Section 154 of the
Evidence Act in favour of the appellant. Be that as it may, if the public prosecutor is
not prepared to own the testimony of the witness examined by him, he can give
expression of it in different forms. One of such forms is the one envisaged in Section
154 of the Evidence Act. The very fact that he sought permission of the court soon
after the end of the cross examination, was enough to indicate his resolve, not to
own all what the witness said in his evidence. It is again open to the public
prosecutor to tell the court during final consideration that he is not inclined to own
the evidence of any particular witness inspite of the fact that said witness was
examined on his side. When such options are available to a public prosecutor, it is
not a useful exercise for this Court to consider whether the witness shall again be
called back for the purpose of putting cross questions to him47.

HOSTILE WITNESS - SECTION 154 - HOSTILE IN RE-EXAMINATION:

The court, therefore, can permit a person, who calls a witness, to put questions to
him which might be put in the cross-examination at any stage of the examination of
the witness, provided it takes care to give an opportunity to the accused to cross-
examine him on the answers elicited which do not find place in the examination-in-
chief48.

HOSTILE WITNESS - SECTION 154 - LEADING QUESTION CAN BE PUT - Once the

47
State Of Bihar vs Laloo Prasad Alias Laloo Prasad - AIR 2002 SC 2432=2002 CriLJ 3236
(SC)=2002 (3) Crimes 70 (SC)= JT 2001 (10) SC 276=(2002) 9 SCC 626.

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witness is declared as hostile, even leading question can be put to witness in the
cross examination. That be the position of law, for each and every questions, the
witness cannot be declared as hostile – [G. Venkatanarayanan & Another Versus State
represented by the Inspector of Police CBI, ACB, Chennai – (2017) 4 MLJ (Crl) 49]

Now read section 154 Evidence act: [sir jamesfitzjames Stephen]

154. Question by party to his own witness.––

[(1)] The Court may, in its discretion, permit the person who calls a witness to put any questions to
him which might be put in cross-examination by the adverse party.

[(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on
any part of the evidence of such witness.]

142. When they must not be asked.––

Leading questions must not, if objected to by the adverse party, be asked in an examination-in-
chief, or in a re-examination, except with the permission of the Court.

The Court shall permit leading questions as to matters which are introductory or undisputed, or
which have, in its opinion, been already sufficiently proved.

143. When they may be asked.––

48
DAHYABHAI CHHAGANBHAI THAKKER vs STATE OF GUJARAT - AIR 1964 SC
1563=(1964) MWN (Cri) 170 (SC)=(1965) MLJ (Cri) 773=(1965) 2 SCJ 531=(1964) 7 SCR
361.

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 Leading questions may be asked in cross-examination

146. Questions lawful in cross-examination

EXAMINATION OF WITNESSES - CLASS. DAY. 3

WHAT IS CONTRADICTION?

It is obvious from a perusal of section 145 that it applies only to cases where, the
same person make two contradictory statements either in different proceedings or
in two different stages of a proceeding [MOHANLAL GANGARAM GEHANI V. STATE OF
MAHARASHTRA – AIR 1982 SC 839 – BENCH OF 3 JUDGES].

HOSTILE - ENTIRE PORTION OR PARTICULAR PORTION - NOT NECESSARY:

The lapse on the part of public prosecutor is also something very unfortunate. The
public prosecutor knew that the witnesses were deposing something contrary to
what they had stated before the police in their statements recorded under Section
161 of the CrPC. It was his duty to bring to the notice of the witnesses and confront
them with the same even without declaring them as hostile [MUNNA PANDEY vs.
STATE OF BIHAR – CRIMINAL APPEAL NOS. 1271-1272 OF 2018 – SEPTEMBER 4, 2023 [3
Judges Bench]

The trial Court has allowed the prosecution to treat P.W.2 as hostile. Whenever,
P.W.2 has not given answer in favour of the prosecution and after treating the
witness hostile for a particular question and again chief examination was continued.

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In some of the questions, the trial court granted permission to the prosecution to
treat the witness as hostile for a particular question and thereafter allowed to
continue the chief [G. Venkatanarayanan & Another Versus State represented by the
Inspector of Police CBI, ACB, Chennai – (2017) 4 MLJ (Crl) 49].

HOW PUBLIC PROSECUTOR MUST CROSS?

Bala & Others vs. State – 2014-1-LW (Crl) 213 (DB) and Krishan Chander vs. State of
Delhi - (2016)1 SCC (Cri) 725=(2016)3 SCC 108=AIR 2016 SC 298.

Leading questions are allowed: In short, the rule prohibiting a party to put questions in
the manner of cross- examination or in a leading form to his own witness is relaxed not
because the witness has already forfeited all right to credit but because from his
antipathetic altitude or otherwise, the court feels that for doing justice, his evidence will
be more fully given, the truth more effectively extricated and his credit more adequately
tested by questions put in a more pointed, penetrating and searching way [ Sat Paul v.
Delhi Administration - AIR 1976 SC 294 cited in Krishan Chander vs. State of Delhi -
(2016)1 SCC (Cri) 725=(2016)3 SCC 108=AIR 2016 SC 298]

Leading questions can be put: Once the witness is declared as hostile, even leading
question can be put to witness in the cross examination. That be the position of law,
for each and every questions, the witness cannot be declared as hostile – [G.
Venkatanarayanan & Another Versus State represented by the Inspector of Police CBI,
ACB, Chennai – (2017) 4 MLJ (Crl) 49].

Contradicting the prosecution witness by putting questions in the statement u/s 161 Cr.P.C
and if the witness refuses the same confront the same with the I.O following V.K. Mishra v.
State of Uttarakhand - (2015) 9 SCC 588.

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MARKING 161 STATEMENTS - ONLY PARTICULAR PORTIONS ARE ALLOWED:

We have carefully gone through the evidence of PW5 in order to satisfy our
conscience, and find that the Trial Court and the High Court have on an evaluation
of PW5's evidence, rightly concluded that it supported the prosecution's version.
Thus, the contention as raised above cannot be accepted. PW5 has deposed that at
about 9.30 a.m., he saw the accused/appellant sitting in the driver's seat in the
vehicle, and the victim by his side, in her school uniform. There was a contradiction
(Ext. D4) in the evidence of PW5 with respect to the deceased being seated in the
front seat of the vehicle, which according to us is not material. Unfortunately, the
Trial Court, instead of marking a specific portion of the statement of PW5, where he
has contradicted his earlier version relating to the aforesaid version, has marked the
entire statement recorded by the police under Section 161 of the Code of Criminal
Procedure (in short "the CrPC") [SACHIN KUMAR SINGHRAHA vs STATE OF MADHYA
PRADESH – AIR 2019 SC 1416=(2019) 1 Crimes 278 (SC)=(2019) 5 Scale 39].

HOSTILE WITNESS - SECTION 154 - OPTIONS OPEN TO THE PUBLIC PROSECUTOR:

In the above situation, we are unable to hold that the trial judge has gone wholly
wrong in declining to exercise the discretion envisaged under Section 154 of the
Evidence Act in favour of the appellant. Be that as it may, if the public prosecutor is
not prepared to own the testimony of the witness examined by him, he can give
expression of it in different forms. One of such forms is the one envisaged in Section
154 of the Evidence Act. The very fact that he sought permission of the court soon
after the end of the cross examination, was enough to indicate his resolve, not to
own all what the witness said in his evidence. It is again open to the public
prosecutor to tell the court during final consideration that he is not inclined to own
the evidence of any particular witness in spite of the fact that said witness was
examined on his side. When such options are available to a public prosecutor, it is

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not a useful exercise for this Court to consider whether the witness shall again be
called back for the purpose of putting cross questions to him49.

NOTING DEMEANOUR OF WITNESSES:

Section 280. Remarks respecting demeanour of witness-

When a presiding Judge or Magistrate has recorded the evidence of a witness, he shall also record
such remarks (if any) as he thinks material respecting the demeanour of such witness whilst under
examination.

ACCUSED DEMEANOUR:
In its findings, the trial court stated that "during trial, the accused stared at the
witness and he was seen with red eye". So, during the trial of the case, such was its
frame of mind towards the accused. It is seen from its judgment that this also
weighed in the mind of the trial court in convicting the accused [R.Palanisamy vs
State By Inspector Of Police [2013-2-LW(Crl) 169 (Mad-DB)= 2013(2) MLJ (Crl) 812
(Mad-DB)].
EVEN THOUGH SUFFICIENT LIGHT IN THE COURT ROOM WITNESS DID NOT

49
State Of Bihar vs Laloo Prasad Alias Laloo Prasad - AIR 2002 SC 2432=2002 CriLJ 3236 (SC)=2002
(3) Crimes 70 (SC)= JT 2001 (10) SC 276=(2002) 9 SCC 626.

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IDENTIFY THE ACCUSED:
When she was called upon to identify the accused, she could not identify any one of
the accused with reference to their names. The learned Judge noted in the
deposition that PW4 could not identify any accused. The note made by the learned
Sessions Judge reads thus :

“Note: The witness by going close the accused, taking round again and again, by pushing
aside in front and by going close the rear person tried to have a look, identified in this
manner and sometime by standing for a moment close to the accused went ahead and on
return could identify someone, also stated that vision is not clear because there is some
darkness. Two tube lights are burning in court whereby sufficient light is there and one tube
light is on the side of the accused themselves. The witness stated that though the light is
sufficient and faces are also visible but it is not assessed as to who are these persons.”

Finally S.C acquitted the accused in this point itself [ Radhey Shyam & Ors. Versus State
of Rajasthan - CRIMINAL APPEAL NO.2203 of 2010 - April 12, 2023]

SAME JUDGE HAVING ADVANTAGE OF NOTING THE DEMEANOUR OF THE WITNESS

- BACK MIND OF THE JUDGE:

Thus, in such cases, the Trial Court has the additional advantage of closely observing
the prosecution witnesses and their demeanour. While deciding about the reliability
of the version of prosecution witnesses, their demeanour remains in the back of the
mind of the learned Trial Judge [H. D. SUNDARA & ORS vs. STATE OF KARNATAKA - Criminal
Appeal No. 247 of 2011 - September 26, 2023]

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 SECTION 165

SUO-MOTU POWERS OF COURT:

There is in our opinion nothing in Section 162 of the CrPC which prevents a Trial
Judge from looking into the papers of the chargesheet suo motu and himself using
the statement of a person examined by the police recorded therein for the purpose
of contradicting such person when he gives evidence in favour of the State as a
prosecution witness. The Judge may do this or he may make over the recorded
statement to the lawyer for the accused so that he may use it for this purpose. We
also wish to emphasise that in many sessions cases when an advocate appointed by
the Court appears and particularly when a junior advocate, who has not much
experience of the procedure of the Court, has been appointed to conduct the
defence of an accused person, it is the duty of the Presiding Judge to draw his
attention to the statutory provisions of Section 145 of the Evidence Act, as explained
in Tara Singh v. State reported in – 1951 SCR 729 and no Court should allow a
witness to be contradicted by reference to the previous statement in writing or
reduced to writing unless the procedure set out in Section 145 of the Evidence Act
has been followed. It is possible that if the attention of the witness is drawn to these
portions with reference to which it is proposed to contradict him, he may be able to
give a perfectly satisfactory explanation and in that event the portion in the previous
statement which would otherwise be contradictory would no longer go to contradict
or challenge the testimony of the witness [MUNNA PANDEY vs. STATE OF BIHAR –
CRIMINAL APPEAL NOS. 1271-1272 OF 2018 – SEPTEMBER 4, 2023 [3 Judges Bench]

SECTION 165 - ACTIVE PARTICIPATION:

With such wide powers the court must actively participate in the trial to elicit the
truth and to protect the weak and the innocent. It must, of course, not assume the
role of prosecutor in putting questions. The functions of the counsel, particularly

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those of the Public Prosecutor, are not to be usurped by the judge, by descending
into the arena, as it were. Any questions put by the judge must be so as not to
frighten, coerce, confuse or intimidate the witness [Ram Chander vs. State of
Haryana - AIR 1981 SC 1036].

CIRCUMSTANTIAL EVIDENCE

The Circumstantial evidence is a close companion of factual matrix, creating a fine

network through which there can be no escape for the accused, primarily because
the said facts, when taken as a whole, do not permit us to arrive at any other
inference but one indicating the guilt of the accused50.

WITNESS MAY LIE BUT CIRCUMSTANCES CANNOT:

In a case based upon circumstantial evidence, the prosecution is under a legal

obligation to prove, firstly on facts the existence of such circumstances and secondly
that the circumstances form a complete chain which lead to the irresistible
conclusion that the accused are guilt and such circumstances are inconsistent with
their innocence. On proof of the aforesaid conditions, the court can convict the
accused of the charges framed against them. It is rightly said that witnesses may lie
but the circumstances cannot [Dhanajaya Reddy vs. State of Karnataka - 14.03.2001 - SC

50
Munish Mubar vs. State of Haryana - 2012(10) SCC 464 followed in Dhan Raj@Dhand
vs. State of Haryana - 2014 AIAR (Cri) 593=2014 Cr.L.J 2778 (SC)=2014(6) SCALE 620

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- AIR 2001 SC 1512] [hatred of husband can be inferred through the letters wrote by her
to x - this is the circumstance]

The law relating to circumstantial evidence has been stated by this Court in
numerous decisions. It is needless to refer to them as the law on the point is well-
settled. In a case resting on circumstantial evidence, the circumstance put forward
must be satisfactorily proved and those circumstances should be consistent only
with the hypothesis of the guilt of the accused. Again those circumstances should be
of a conclusive nature and tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other words, there must be a
chain of evidence so far complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused and it must be such as to
show that within all human probability the act must have been done by the
accused51.

CIRCUMSTANTIAL EVIDENCE - EXPLAINING:

There are no eye-witnesses to the crime. In a case which rests on circumstantial

evidence, the law postulates a two-fold requirement. First, every link in the chain of
circumstances necessary to establish the guilt of the accused must be established

51
Bakhshish Singh Versus State of Punjab - 1971 CrLJ 1452=1971 (3) SCC 182

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by the prosecution beyond reasonable doubt. Second, all the circumstances must
be consistent only with the guilt of the accused [GANPAT SINGH vs STATE OF M.P -
Criminal Appeal No. 630 of 2009; Dated: 19-09-2017] .

EXTRA-JUDICIAL CONFESSION IS A CIRCUMSTANCE:

The fact that we have ruled out the circumstances relating to the making of an extra
judicial confession and the discovery of the weapon of offence as not having been
established, the chain of circumstantial evidence snaps so badly that to consider any
other circumstance, even like motive, would not be necessary [Ramanand @ Nandlal
Bharti vs. State of Uttar Pradesh CRIMINAL APPEAL NOS. 6465 OF 2022 - OCTOBER 13, 2022 – 3
Judge Bench].

MOTIVE IS A CIRCUMSTANCE:

Thus, even if it is believed that the accused appellant had a motive to commit the
crime, the same may be an important circumstance in a case based on
circumstantial evidence but cannot take the place as a conclusive proof that the
person concerned was the author of the crime [Ramanand @ Nandlal Bharti vs. State of
Uttar Pradesh CRIMINAL APPEAL NOS. 6465 OF 2022 - OCTOBER 13, 2022 – 3 Judge Bench].

MOTIVE

MOTIVE - It is a settled law that motive is not necessary element in deciding

culpability but it is an equally important missing link which can be used to

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corroborate the evidences52.

PROSECUTION WHAT TO PROVE IN MOTIVE? - WHETHER THE PATTERN OF CRIME

FITS IN MOTIVE53.

MOTIVE NOT NECESSARY IF THERE IS EYE-WITNESS54.

HEARSAY

HEARSAY EVIDENCE:

Section 60 of I.E. Act rests on the Cardinal rule that the best evidence available must
always be given. It provides that oral evidence must always be direct or positive.
The statements or declarations, oral or written, of persons not called as witnesses

52
K.A.Kotrappa Reddy & Anr vs. Rayara Manjunatha Reddy @ N.R.Manjunatha & Ors -
Criminal Appeal No: 774 of 2010; dt. 15.10.2015

53
The State of U.P vs. Hari Prasad and Others – 1974(3) SCC 673 followed in Ravi @ Steel
Ravi vs. State – 2003(1) MWN (Cri)138

54
Rajagopal vs. Muthupandi @ Thavakkalai & Ors - 2017 AIAR (Cri) 375

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but repeated by third persons are excluded as hearsay, but there are important
exceptions to the rule which we find in Ss. 17 – 39 and more particularly Section 32
(1) I.E Act, with which we are concerned in their Appeal. Though we do not find the
term ‘hearsay’ or definition of the term ‘hearsay’ in the I.E. Act, it means that the
evidence which a witness does not give of his own knowledge, but says that
another person has said or signified to him. The correct rule as to ‘hearsay’
therefore, is the statements, oral or written, reported to have been made by
persons, not called as witnesses, are not admissible in evidence, subject to certain
exceptions. Section 32(1) of I.E. Act is one such exception, under which the
statement of a dying person is made admissible in evidence55.

Example: According to him when he reached the spot after scribing the first
information report, he heard people saying that the respondent Satish had
assaulted the deceased and had run away from the spot. We do not think the
evidence of this witness can be used by the prosecution to any appreciable extent 56.

55
2011(2) MWN (Cri) 508 (FB) (BOM) – Ramesh vs. State of Maharashtra.

56
State of U.P vs. Satish Chandra – AIR 1985 SC 313

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HEARSAY MEANS EVIDENCE NOT CORROBORATED:57 & 58.

SECTION 60 I.E.A - WHAT IS NOT HEARSAY?

The word 'hearsay' is used in various senses. Sometimes it means whatever a person
is heard to say; sometimes it means whatever a person declares on information
given by someone else. (See Stephen on L aw of Evidence). On the complaint of
Kansal, the evidence of these four witnesses is direct as the complaint is said to have
been. made by Kansal in their presence and hearing; it is therefore, not hearsay 59.

57
Bakshish Ram & Another Vs. State Of Punjab – III (2013) CCR 90 (SC)

58
Vijender vs. State of Delhi – 1997 SCC (Cri) 857

59
J. D. Jain Versus Management of State Bank of India and Another - 182 (1) SCC 143=
1982 SCC(Cri) 12

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MAXIM: It may be stated that the maxim ‘falsus in uno falsus in omnibus’ (false in
one false in all) does not apply in criminal cases in India. A witness can be partly
truthful and partly false [KULWINDER SINGH V. STATE OF PUNJAB – 2007 (2) MWN (CRI)
71 (SC)].

INTERESTED WITNESS

True it is she is the wife of the deceased; but she cannot be called an ‘interested’
witness. She is related to the deceased. ‘Related’ is not equivalent to ‘interested’. A
witness may be called ‘interested’ only when he derives some benefit from the
result of a litigation, in the decree in a civil case, or in seeing an accused person
punished. A witness who is a natural one and is the only possible eye-witness in the
circumstances of a case cannot be said to be ‘interested’60.

CHILD WITNESS

SUBJECT TO SECTION 5 OF INDIAN OATHS ACT, 1873 - S. 118 IEA - TENDER YEARS 61.

60
State of Rajasthan vs. Smt. Kalki & anr - AIR 1981 SC 1390 followed in Gangabhavani
vs. Rayapati Venkat Reddy & Others - AIR 2013 SC 3681

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CHILD WITNESS - APPRECIATION - CAREFUL - BUT NO OBSTACLE IN ACCEPTING62.

CHANCE WITNESS

Further Hon’ble Apex Court has held that Shankarlal vs. State of Rajasthan [(2004)10
SCC 632] and Jarnail Singh & ors vs. State of Punjab [(2009)9 SCC 719] are
authorities for the proposition that deposition of a Chance witness, whose presence
at the place of incident remains doubtful, ought to be discarded. Therefore, for the
reasons recorded by the High Court we hold that P.W.5 and P.W.6 were chance
witnesses and their statements have been rightly discarded63.

SAME PART OF TRANSACTION

61
State of M.P vs. Ramesh & others – 2011 Cr.L.J (SC) 2297 reiterated in 2011 Cr.L.J (SC)
2297

62
GOLLA YELUGU GOVINDU vs STATE OF ANDHRA PRADESH - (2008) 4 SCALE
569=(2008) 16 SCC 769=(2010) 4 SCC(Cri) 430=(2008) 5 SCR 500=(2008) 2 Supreme
592; Suryanarayana vs. State of Karnataka – aIR 2001 SC 482.

63
Harbeer Singh vs. Sheeshpal & others – AIR 2016 SC 4958=(2016) 10 SCALE 211=2017
Crl.L.J 169 (SC) – Crl.Apl.Nos: 1624 of 2013 – dt: 20.10.2016 – (SC).

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SECTION 6: (RES GESTAE):

Section 6: Relevancy of facts forming part of same transaction:

Facts which, though not in issue, are so connected with a fact in issue as to form part of the
same transaction, are relevant, whether they occurred at the same time and place or at different
times and places.

Section 6 of the Evidence Act is an exception to the general rule where under the
hearsay evidence becomes admissible. But for bringing such hearsay evidence within
the provisions of section 6, what is required to be established is that it must be almost
contemporaneous with the acts and there should not be an interval which would
allow fabrication. The statements sought to be admitted, therefore, as forming part
of res-gestae, must have been made contemporaneously with the acts or immediately
thereafter.

e.g:- It was one year & 11 months ago at 7.30 a.m while I had gone to attend the call
of nature when I heard the sound of firing and I went there and saw Nakkal lying on
the ground near the sugar cane of Kalian after being hit by a bullet. I did not see him
being hit by the bullet. When I asked him Nakkal told me that his nephew sukkar hit

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him with the bullet [Sukhar vs. State of U.P – AIR 1999 SC 3883=2000 Cr.L.J 29
(SC)=1999(3) Crimes 191(SC)=2000-2-L.W (Cri)501=1999(6) SCALE 280=(1999)9 SCC 507].

Example - 1: P.W-2 in his statement indicating that P.W-1 had come to him (P.W-2)
and told that her father was beaten by ‘x’ with the help of ‘y’, is admissible u/s. 6 of
the Indian Admissible Act, 198264.

Example - 2: Rannu Bai (P.W-1) had come to him (P.W-2) and told that her father was
beaten by Ramesh with the help of her mother, is admissible under section 6 of the
Indian Evidence Act65.

EXTRA-JUDICIAL CONFESSION

VAO - PROCEDURE - HOW EXTRA JUDICIAL CONFESSION SHALL BE RECORDED:

Admittedly, as deposed by P.W-1. P.W-1, VAO is a stranger to her, P.W-1, also would
state that he never met her earlier. There is no detail either in the evidence of P.W-1
or in Ex.P-1 extra-judicial confession as to why she chose to come to VAO’s office
that too at 10.00 p.m to give confession, that too to utter stranger. Even though

64
State of M.P vs. Ramesh & another – 2011 Cr.L.J 2297

65
2011(2) MWN (Cri) 481 (SC) – State of M.P vs. Ramesh

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P.W-1 as a dutiful public servant recorded the statement of the accused, he did not
choose to go to the well which is nearby situated to verify whether the content of
the statement is true. Furthermore, VAO himself would admit that he had not sent
copies of the statement to the superior officers and he is not keeping the copy of
the same in his office seal in Ex.P-1 statement when the accused who has got
sisters, why she did not prefer to give such confession to them even though they are
kith and kin?. The question has no answer. Further, Madras High Court has held that,
therefore, the extra-judicial confession to P.W-1 cannot be said to be genuine and
voluntary and as such, no reliance can be placed either on the evidence of P.W-1 or
on Ex.P-1 the extra judicial confession [Sarala vs. State - 2003 Cr.L.J 1195 (Mad-H.C)] .

MAIN SCOPE IN EXTRA-JUDICIAL CONFESSION:

Prosecution has to show as to why and how the accused had reposed confidence on
a particular person to give the extra - judicial confession [AIR 1997 SC 332 - Jaspal Singh
v. State of Punjab followed in Sanjeevan v. State of T.N - (2012)1 MLJ (Cri) 689 (Mad - DB)] .

EXTRA-JUDICIAL CONFESSION EXPLAINED:

Confessions may be divided into two classes, i.e. judicial and extra judicial. Judicial
confessions are those which are made before Magistrate or Court in the course of
judicial proceedings. Extra judicial confessions are those which are made by the
party elsewhere than before a Magistrate or Court. Extra judicial confessions are
generally those made by a party to or before a private individual which includes
even a judicial officer in his private capacity. It also includes a Magistrate who is not
especially empowered to record confessions under Section 164 of the CrPC or a

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Magistrate so empowered but receiving the confession at a stage when Section 164
does not apply. As to extra judicial confessions, two questions arise: (i) were they
made voluntarily? And (ii) are they true? As the Section enacts, a confession made
by an accused person is irrelevant in a criminal proceedings, if the making of the
confession appears to the Court to have been caused by any inducement, threat or
promise [Ramanand @ Nandlal Bharti vs. State of Uttar Pradesh CRIMINAL APPEAL NOS. 6465
OF 2022 - OCTOBER 13, 2022 – 3 Judge Bench].

SECTION 24 OF EVIDENCE ACT:

Whether or not the confession was voluntary would depend upon the facts and
circumstances of each case, judged in the light of Section 24 of the Evidence Act.
The law is clear that a confession cannot be used against an accused person unless
the Court is satisfied that it was voluntary and at that stage the question whether it
is true or false does not arise. If the facts and circumstances surrounding the making
of a confession appear to cast a doubt on the veracity or voluntariness of the
confession, the Court may refuse to act upon the confession, even if it is admissible
in evidence[Ramanand @ Nandlal Bharti vs. State of Uttar Pradesh CRIMINAL APPEAL NOS.
6465 OF 2022 - OCTOBER 13, 2022 – 3 Judge Bench].

SECTION - 11 [PLEA OF ‘ALIBI’]

Alibi is not an exception (special or general) envisaged in the Indian Penal Code or
any other law. It is only a rule of evidence recognised in section 11 of I.E. Act that
facts which are inconsistent with the fact in issue are relevant.

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Illustration (A) given under the provision is worth reproducing in this context.

“The question is whether ‘A’ committed a crime at Calcutta on a certain date: the
fact that on that date, ‘A’ was at Lahore is relevant” [AIR 1997 SC 322 - Binay Kumar Singh
vs. State of Bihar followed in Vutukuru Lakshmaiah vs. State of A.P - Crl.O.P No: 2047/2008 -

24.4.2015].

DYING DECLARATION

CONTRADICTIONS IN DYING DECLARATIONS:

The contradictions, in the two dying declaration coupled with the high degree of
improbability of the manner of occurrence as depicted by the prosecution case, in
view of serious infirmities pointed above, leaves that court with no option but to
attach little weight to these dying declarations. When there are serious
discrepancies in the account given by the witnesses, it is unsafe to rely on the said
evidence and the inconsistent dying declarations, brought on record by the
prosecution66.

Legal Maxim “Nemo moriturus praesumitus mentire” - meaning - A man will not
meet his maker with a lie in his mouth67.

66
Shanmugam vs. State – (2014)2 MLJ (Crl) 415=2014-2-LW (Cri) 115

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SECTION 33 I.E ACT:

The evidence contemplated by this section is evidence given by a witness in an

earlier judicial proceeding or before any person authorized by law to take evidence.
The section states that such evidence is relevant in a subsequent proceeding for the
purpose of proving the truth of the facts which it states when;

a. The witness is dead, or

b. The witness cannot be found, or
c. The witness is incapable of giving evidence, or
d. Witness is kept out of the way by adverse party, or
e. Witness’s presence cannot be obtained without any amount of delay or
expense which, under the circumstance of the case, the court considers
unreasonable.

67
Laxman Kumar's case (AIR 1986 SC 250) reiterated in 1998 CRI. L. J. 2515 (SC)

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The above is subject to the following three conditions;

1. That the proceeding (i.e. earlier proceeding) was between the same
parties or their representatives in interest.
2. That the adverse party in the first proceeding had the right and
opportunity to cross-examine,
3. That the questions in issue were substantially the same in the first as in
the second proceeding.

Now, if we read section 33 again, it uses the words “evidence given by a witness in a
judicial proceeding or before any authority authorized by law to make it, is relevant
for the purpose of proving in a subsequent judicial proceeding or in a later stage of
the same judicial proceeding” and the first clause in the proviso uses the word
“proceeding was between the same parties or their representatives in interest”
while the third clause of the proviso uses the words “that the questions in issue
were substantially the same in first as in the second proceeding”. In the first clause
of the proviso, the word ‘proceeding’ is used without any qualification.

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 ADMISSION & CONFESSION

A confession or an admission is evidence against the maker of it so long as its

admissibility is not excluded by some provision of law. Provisions of sections 24 to
30 of the Evidence Act and of section 164 of the Cr.P.C deal with confession. By
virtue of the provision of section 25 of the Evidence Act, a confession made to a
police officer under no circumstance is admissible in evidence against an accused.
The section deals with confession made not only when the accused was free and
not in police custody but also with the one made by such a person before any
investigation had begun. The expression “accused of any offence” in section 25
would cover the case of an accused who has since been put on trial, whether or not
at the time when he made the confessional statement, he was under arrest or in
custody as an accused in that case or not. Inadmissibility of a confessional
statement made to a police officer under section 25 of the Evidence Act is based on
the ground of public policy. Section 25 of the Evidence Act not only bars proof of
admission of an offence by an accused to a police officer or made by him while in
the custody of a police officer but also the admission contained in the confessional
statement of all incriminating facts relating to the commission of an offence. Section
26 of the Evidence Act deals with partial ban to the admissibility of confession made
to a person other than a police officer. Section 27 of the Evidence Act is in the
nature of a proviso or an exception, which partially lifts the ban imposed by sections
25 and 26 of the Evidence Act and makes admissible so much of such information,

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whether it amounts to a confession or not, as relates to the fact thereby discovered,
when made by a person accused of an offence while in police custody. Under
section 164 Cr.P.C a statement or confession made in the course of an investigation,
may be recorded by a Magistrate, subject to the safeguards imposed by the section
itself and can be relied upon at the trial 68 [Pakkala Narayana Swami vs. King Emperor [AIR
1939 PC 47]; State vs. Navjot Sandhu (2005) 11 SCC 600; 2010 (2) L.W (crl) 1216; Bheru Singh, s/o,
Kalyan Singh vs. State of Rajasthan – (1994)1 SCALE 353=(1994)2 SCC 467=(1994)1 Crimes 630
(SC)=1994 SCC (Cri) 555=1994 AIR SCW 2126].

DISCOVERY OF A FACT - Pulukuri Kottaya vs King-Emperor on 19 December, 1946 - AIR

1947 PC 67.

68
Bheru Singh, s/o, Kalyan Singh vs. State of Rajasthan – (1994)1 SCALE 353=(1994)2
SCC 467=(1994)1 Crimes 630 (SC)=1994 SCC (Cri) 555=1994 AIR SCW 2126

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