An accused is entitled to cross-examine a defense witness who turns hostile by using previous statements recorded by the police, as the proviso to Section 162 of the Code of Criminal Procedure, read with Section 145 of the Indian Evidence Act, permits such contradiction to impeach the witness's credit.

JUDGMENT :

PARTHIVJYOTI SAIKIA, J.

Heard Mr. A.M. Bora, learned senior counsel assisted by Mr. D.K. Baidya, learned counsel appearing for the petitioner. Also heard Mr. D.P. Goswami, learned Addl. Public Prosecutor, Assam representing Respondent No.1 as well as Mr. B. Deka, learned counsel representing Respondent No.2.

2. This is an application under Section 482 of the CrPC challenging the order dated 07.11.2013 passed by the learned Addl. District & Sessions Judge (FTC), Cachar, Silchar in Sessions Case No.08/2013.

3. While filing the charge sheet against the present petitioner, one person called Dulal Paul was shown as a prosecution witness. In spite of that, Dulal Paul was not examined by the prosecution. Therefore, he was examined as a defence witness by the present petitioner. Subsequently, he became hostile and hence, the petitioner filed an application before the trial court under Section 154 of the Indian Evidence Act, 1872 praying for permission to cross-examine his own witness.

4. After hearing both sides, the trial court refused the prayer of the petitioner. While passing that order, the trial court had held that when a witness whose statement was recorded by the police is called as defence witness, he cannot be corroborated by the former statement nor can he be contradicted by the police by that statement.

5. Aggrieved by the aforesaid order, the petitioner has come to this Court by filing the present petition.

6. Mr. Bora has relied upon a decision of the Hon’ble Supreme Court that was delivered in Tehsildar Singh and Anr. v. State of U.P., reported in 1995 SCC OnLine SC 17. Mr. Bora has relied upon this decision to contradict the submission of Mr. Deka who claimed that under Section 162 of the CrPC, the accused cannot cross-examine his own witness.

7. Referring to Section 145 of the Indian Evidence Act in Tehsildar Singh (supra), the Supreme Court has held that Section 145 has two parts, the first part enables the accused to cross-examine a witness as to the previous statement made by him in writing or reduced to writing, without such writing being shown to him and the second part deals with a situation where the cross-examination assumes the shape of contradiction; in other words both part deal with cross-examination. The Court further held that the first part deal with cross-examination other than by way of contradiction and the second part deals with cross-examination by way of contradiction only.

8. In Tehsildar Singh (supra), the Supreme Court has held that the proviso to Section 162 of the Code of Criminal Procedure only enables the accused to make use of such statement to contradict a witness in the manner provided in by Section 145 of the Indian Evidence Act.

9. Mr. Bora has also submitted that Section 155 (3) of the Indian Evidence Act goes in his favour. Section 155 reads as under:

“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.

(1) By the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;

(2) By proof that the witness has been bribed, or has 1 [accepted] the offer of a bribe, or has received any other corrupt inducement to give his evidence;

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

Explanation. –– A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be