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2023 Supreme(Online)(KER) 26520
HIGH COURT OF KERALA
RAJA VIJAYARAGHAVAN, J
RATHINRAJ JOSEPH – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC 4599 2023
Dinesh Mathew, J. Muricken, Vinod S. Pillai, Nayana Varghese, Mohammed Thayib, N.M. Ahammad, Sachin K.
The necessity for fair treatment in prosecutorial cross-examination and the importance of allowing witnesses to clarify contradictions in their statements, ensuring compliance with legal standards.
Headnote:
Evidence - Contradictions - Indian Evidence Act, Section 145; Criminal Procedure Code, Section 311 - The court emphasized the necessity for proper cross-examination regarding witness statements and substantial compliance with legal provisions for admitting contradictions in testimony, influencing the decision to allow the recall of a witness.
Fact of the Case:
The petitioners challenged the dismissal of their application to recall a witness to prove contradictions in a prosecution witness's testimony. The magistrate dismissed the application, believing it was filed to delay proceedings.
Finding of the Court:
The court found that the petitioner had valid grounds to recall the witness to address omissions and contradictions raised during cross-examination, noting the requirement of fair opportunity to the accused to counter the witness's statements.
Issues: Whether the dismissal of the application to recall a witness for the purpose of addressing contradictions in the evidence caused prejudice to the accused.
Ratio Decidendi: The court highlighted that substantial compliance with the requirements of the Evidence Act regarding cross-examination is paramount, and prejudice to the accused must be avoided by allowing the recall of the witness.
Final Decision: The petition is allowed; the magistrate's order is set aside and the application for recalling the witness is directed to be allowed.
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TH TUESDAY, THE 13 DAY OF JUNE 2023 / 23RD JYAISHTA, 1945 CRL.MC NO. 4599 OF 2023 IN CC 364/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, ERNAKULAM PETITIONERS/PETITIONERS/ACCUSED:
1 RATHINRAJ JOSEPH AGED 32 YEARS S/O.RAFI, KANNAMPUZHA HOUSE, THRISSUR EAST.P.O., KIZHAKKUMPATTUKARA, THRISSUR DISTRICT, PIN - 680005.
2 K.J.RAFI AGED 64 YEARS S/O.JOSEPH, KANNAMPUZHA HOUSE, THRISSUR EAST.P.O., KIZHAKKUMPATTUKARA, THRISSUR DISTRICT, PIN - 680005.
BY ADVS.
DINESH MATHEW J.MURICKEN VINOD S. PILLAI NAYANA VARGHESE MOHAMMED THAYIB N.M.
AHAMMAD SACHIN K.
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY THE INSPECTOR OF POLICE, CENTRAL POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031.
SRI M.P PRASHANTH PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
13.06.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ORDER
The petitioners have approached this Court being aggrieved by the order dated 7.6.2023 in C.M.P No.1661 of 2023 in C.C No.364 of 2016 of the Judicial First Class Magistrate Court - II, Ernakulam.
2. C.M.P No.1661 of 2023 was filed stating that while cross-examining PW4, the counsel appearing for the accused had brought out certain omissions and contradictions in his evidence. From the final report, the only deed attributed to CW11, the Sub Inspector of Police, Central Police Station was the registration of the FIR. The entire investigation and questioning of witnesses were carried out by CW12, the Investigating Officer. When CW12 was examined, the omissions and contradictions brought out from the evidence of PW4 were put to him to discredit the prosecution witness. However, PW10 responded by saying that the statement of PW4 was recorded by CW11 who was examined as PW9 and not by him. In the said circumstances, it has become necessary to recall PW9 so as to prove the omissions and contradictions.
3. The learned Magistrate was of the view that though PW10 was examined on 24.11.2022, the application was filed only on 25.05.2023 and that too after the examination of the accused under Section 313 of the Code. By holding that the application was filed only to drag and delay the proceedings, the same was dismissed.
4. I have considered the submissions.
5. I find from the final report that CW 11 was cited only to prove the registration of the FIR. It was only when the Investigating Officer was examined as PW10 that the fact that the 161 statement of PW4 was recorded by PW9 was revealed. As rightly submitted by the learned counsel appearing for the petitioners, the contradictions and omissions brought out subject to proof while cross-examining PW4 must be put to the officer who recorded the statement to prove the same.
6. A Division Bench of this Court in Thankappan Mohanan v.
State of Kerala [1990(1)KLT 21] had occasion to detail the procedure to be adopted in following Section 145 of the Evidence Act. It would be worthwhile to extract paragraph Nos. 7 to 12 of the judgment wherein, U.L Bhat, J has lucidly explained the procedure to be followed.
7. We do not think any hard andfastrulecanbelaiddowninregardtothe procedure to be adopted in following S.145 of the Evidence Act, with particular reference to case diary statement. Case diary statements are recorded under S.161(3) of the Code of Criminal Procedure . Sub-section (1) of S.162 states, interalia, that such statement shallnotbeusedforany purpose, save as provided in any inquiry or trial in respect of any offence under investigation at the time when such statement was made. The proviso permits use of the statement, if duly proved, by the accused, and with the permission of the court by the prosecution, to contradict such witness in the manner provided byS.145oftheEvidenceAct.S.145ofthe Indian Evidence Act is in two parts. The first part permits cross-examination of the witness as to his previous statement in writing when such wri
