Bombay High Court
Rammi alias Rameshwar
Versus
State of M.P.
Decided On:

Headnote:Section 27-Evidence of recovery-Recovery of the weapons on the information of the accused is admissible in evidence under Section 27 of the above Act 1872 but it reliability is to be tested by the court as to whether it was stated voluntarily by the accused.- True, such inforn1atian is adn1issible in evidence under Section 27 of the Evidence Act, but admissibility alone would not render the evidence, pertaining to the above information, reliable. While testing the reliability of such evidence the Court has to see whether it was voluntarily stated by the accused. PW 13 Investigating Officer has said in his evidence that the accused were arrested on the succeeding day of the occurrence from a different place and they were interrogated by him. But PW 12 (the driver of the bus) has said in his evidence that after he reached the police station on the same evening he saw the three accused inside the police station. We do not know whether it was an error which PW 12 committed during cross-examination. No doubt the Public Prosecutor who conducted the prosecution did not choose to put any question to PW 12 also in re-examination.

       Section 22-Discrepancy in evidence-Recovery of the weapons was made on the instance of accused whereas the discrepancy in the evidence by the eye-witness and Inquiry Officer about the time of taking the accused under custody by the police was noticed during trial-Since, the Public Prosecutor avoided to put any question to the witnesses during the re-examination, the evidence given by the Inquiry Officer cannot be relied upon.-With the above scrutiny we are unable to place any reliance on the evidence of PW 13 regarding recovery of the weapons at the instance of the accused. In this context we are ten1pted to observe that the Additional Public Prosecutor who conducted prosecution has not discharged his responsibility as he avoided putting any question to those witnesses when an opportunity for re-examination was provided to him.

       Section 138-Scope of re-examination- The purpose of re-examination of witnesses is to explain the matters which have been brought down in cross-examination to resolve any ambiguities. Even if required for proving any material fact, the new questions with the due permission of the Court can be put forth.- The very purpose of re-examination is to explain matters which have been brought down in cross-examination. Section 138 of the Evidence Act outlines the amplitude of re-examination. It reads thus:

       "Direction of re-examination. The reexamination shall be directed to the explanation of matters referred to in cross-examination, and if new ma Her is, by permission of the Court introduced in re-examination, the adverse party may further cross-examination upon that matter."

       There is an erroneous impression that re-examination should be confined to clarification of ambiguities which have been brought down in cross-examination. No doubt, ambiguities can be resolved through re-examination but that is not the only function of the re-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross-examination he has the liberty to put any question in re-examination to get the explanation. The Public Prosecutor should formulate his questions for that purpose. Explanation may be required either when ambiguity remains regarding any answer elicited during cross-examination or even otherwise. If the Public Prosecutor feels that certain answers require more elucidation from the witness he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the Court in accordance with the other provisions. But the Court cannot direct him to confine his questions to ambiguities alone which arose in cross-examination.

       Even if the Public Prosecutor feels that new matters should be elicited from the wih1€sS he can do so, in which case the only requirement is that he must secure permission of the Court. If the Court thinks that such new matters are necessary for proving any material fact, Courts must be liberal granting permission to put necessary questions.

       A Public Prosecutor who is attentive during cross-examination cannot but be sensitive to discern which answer in cross-examination -requires explanation. An efficient Public Prosecutor would gather up such answers falling from the mouth of a witness during cross-examination and formulate necessary questions to be up to in re-examination. There is no warrant that re-examination should be limited to one or two questions. If the exigency requires any number of questions can be asked in re-examination.

       Section 155-Credibility of the witness-Section 145 of the Act, 1872 as well as Section 162 of the Cr PC enables the cross-examiner to use any former statement of the witness which is liable to be contradicted with the statement recorded under Section 161 of the Code though there is no doubt that Section 155 of the Act 1872 provides scope for impeaching the credit of a witness by proof of inconsistent former statement. But mere variations following in the narration of an incident is an unrealistic approach for judicial scrutiny.-When eye-witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non- discrepant. But Courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two wih1esses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.

       It is a common practice in trial Courts to make out contradictions from previous statement of a witness for confronting him during cross-examination. Merely because there is inconsistency in evidence, it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the section is extracted below

       "155. Impeaching credit of witness. The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him.

       (3) By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted."

       A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be "contradicted" would affect the credit of the witness. Section 145 of the Evidence Act also enables the crossexaminer to use any former statement of the witness, but it cautions that if it is intended to "contradict" the witness the cross-examiner is enjoined to comply with the formality prescribed therein. Section 162 of Code also permits the cross-examiner to use the previous statement of the witness (recorded under Section 161 of the Code) for the only limited purpose, i.e. to "contradict" the witness.

       To contract a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness, (vide Tahsildar Singh v. State of U.P., AIR 1959 SC 1012.

       For Citation : 2000 (1) All MR 324: 2000 All MR (Cri) 275 (SC)