Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2013 Supreme(Cal) 132

IN THE HIGH COURT AT CALCUTTA
Kanwaljit Singh Ahluwalia, J.
Anjan Ganguly & Ors. - Appellants
Versus
State of West Bengal - Respondent
Criminal Revision No.1868 of 2012
Decided On : 12.03.2013

Advocates Appeared:
For the petitioners: Mr. Sudipto Moitra, Mr. Sandip Bhattacharjee, Mr. Ayan Bhattacharya, Mr. Pawan Kumar Gupta, Mr. Joydeep Bhatterjee
For the State: Mr. Shiladitya Sanyal, Mr. Sandip Chakraborty, Mr. Sabyasachi Banerjee

Contradictions in witness statements with their previous statements recorded under Section 161 CrPC must be brought to the witnesses' attention during cross-examination before the Investigating Officer can be examined to prove the statement.

Headnote:
CRIMINAL PROCEDURE - SECTION 397/401 - RECALLING WITNESS FOR CONTRADICTIONS - STATEMENT UNDER SECTION 161 CR.P.C. - CONFRONTATION - SECTION 145 OF THE INDIAN EVIDENCE ACT - CONTRADICTION OR OMISSION TO BE BROUGHT TO THE NOTICE OF THE WITNESS - COURT'S POWER TO RECALL WITNESS - DELAY IN FILING APPLICATION - RELEVANCE OF CONTRADICTIONS.
Fact of the Case:

Petitioner sought to recall Investigation Officer (IO) to prove contradictions in the statements of witnesses recorded under Section 161 CrPC, which were not brought to their attention during cross-examination. The Trial Court rejected the application, prompting the revision petition.
Finding of the Court:

1. Contradictions in witness statements with their previous statements recorded under Section 161 CrPC must be brought to the witnesses' attention during cross-examination. 2. The Investigating Officer can only be examined to prove the previous statement if the witness denies the contradiction during cross-examination. 3. The Court has the power to recall witnesses for further cross-examination or to take additional evidence to arrive at a just decision. 4. Delay in filing an application to recall a witness should not hamper the Court's journey to arrive at the truth.
Issues: 1. Whether the defense adequately confronted the witnesses with their previous statements recorded under Section 161 CrPC during cross-examination. 2. Whether the Investigating Officer can be examined to prove contradictions in witness statements without proper confrontation. 3. Whether the Court can recall a witness for further cross-examination despite a delay in filing the application.
Ratio Decidendi: 1. The Court relied on Pedda Narayana & Ors. vs. State of Andhra Pradesh, State (Delhi Administration) vs. Laxman Kumar, and Bishna alias Bhiswadeb Mahato & Ors. Vs. State of West Bengal to establish the proper procedure for proving contradictions in witness statements. 2. The Court held that the attention of the witnesses must be drawn to the portion of the previous statement where the contradiction or omission is alleged, and the witness must be confronted with it before the Investigating Officer can be examined to prove the statement. 3. The Court also held that the Trial Court's rejection of the application to recall the Investigating Officer was justified due to the delay in filing the application and the lack of proper confrontation during cross-examination.
Final Decision: The revision petition was dismissed, upholding the Trial Court's order rejecting the application to recall the Investigating Officer.

Judgement Key Points

Key Points: - Contradictions in witness statements with their 161 Cr.P.C. statements must be brought to the witness’s notice during cross-examination before the Investigating Officer can be examined to prove the statement. (!) (!) - The Court has power to recall witnesses for further cross-examination or to take additional evidence, and delay in filing such applications should not necessarily bar the pursuit of truth. (!) (!) - The proper procedure requires confronting the witness with the contradicting portion of the 161 Cr.P.C. statement, and only then may the Investigating Officer be examined to prove the contradiction; failure to confront precludes proving the contradiction via the Investigating Officer. (!) (!) (!) (!) (!) - Proviso to Section 162(1) Cr.P.C. and Section 145 IPC require that contradictions be proved, with the prior confrontation, and that omission may amount to a contradiction; if not properly confronted, contradictions cannot be taken into account. (!) (!) (!) (!) - In this case the court dismissed the application to recall the IO due to lack of proper confrontation and delay, upholding the trial court’s order. (!) (!) - The evaluation references to Pedda Narayana, Sat Paul, and other authorities establish the framework for proving contradictions and the admissibility constraints of police statements. (!) (!) (!) (!) (!)

How to confront the witness with contradictions in their statements recorded under Section 161 Cr.P.C. during cross-examination before recalling the Investigating Officer?

What is the effect of delay in filing an application to recall a witness on the Court's powers to recall and examine the Investigating Officer?

What are the consequences when the defence fails to draw the witness’s attention to the prior statements under Section 161 Cr.P.C. and to Section 145 of the Indian Evidence Act?

JUDGMENT : -

Kanwaljit Singh Ahluwalia, J.:- This revision petition has been filed under Section 397/401 of the Code of Criminal Procedure praying that the impugned order dated 11th of April, 2012 passed by 3rd Additional Sessions Judge, Fast Track Court, Barrackpore, whereby he refused to recall P.W. 10 Swadhin Ranjan Guha, a police officer who recorded the statement of the witnesses under Section 161 Cr.P.C., to prove contradictions, be set aside.

2. It will be necessary to recapitulate brief facts to appreciate the issues raised and decide them.

3. A case being Baranagar Police Station case no. 75 dated 3rd April, 2006 under Section 498A/326 I.P.C. was registered against the petitioners at the instance of Swapan Kumar Bhattacharya. Later due to the death of deceased Section 306 I.P.C was added. In the FIR, it was stated by the de facto complainant that his daughter Soumi Ganguly was married with petitioner no. 1 Anjan Ganguly. She suffered serious burn injuries in her matrimonial home and was admitted in R. G. Kar Medical College & Hospital. Husband Anjan Ganguly, mother-in-law Smt. Bela Ganguly, sister-in-law Smt. Ruma Chatterjee and her son Papai Chatterjee were named as accused.

4. The case was investigated and a charge-sheet was submitted which was committed to Court of Sessions and entrusted to the Court of 3rd Additional Sessions Judge, Fast Track Court, Barrackpore, North 24 Parganas for trial and disposal. Prosecution in all cited and examined thirteen witnesses.

5. Mother of the deceased Smt. Mitra Bhattacharya had stepped into witness box as P.W. 2. In her deposition she stated that Soumi Ganguly was her daughter. On 22nd January, 2003 she was married with Anjan Ganguly as per Hindu rites and customs. At the time of marriage they have given Rs.1 lakh by way of two cheques. Utensils and other articles were also given as per demand, to the accused. She further stated in the FIR that on 3rd April, 2006 in the house of in-laws her daughter was burnt to death. Allegations of mal-treatment were leveled against the accused. It was stated that Soumi Ganguly had suffered 80 per cent of burn injuries. She remained admitted in the Apollo Hospital for 13 days, thereafter she was shifted to NRI Hospital, where on the next day she expired. Deposition of this witness was recorded on 2nd day of September, 2008, on that day she was cross-examined. It will be apposite to reproduce certain portions of the testimony of the witness, upon which controversy raised revolves :-

“ I did not state to the police that at the time of marriage of my daughter we gave Rs. one lakh in all by two cheques and in hand, utensils another articles to the accd. persons as per the demand of the accd. persons. I did not state to the police that on 3.4.06 in the house of her in laws my daughter was burnt to death.

Not a fact that I did not state to the police that on 3.4.06 after hearing the incident over phone I informed the same to my husband in his office and thereafter myself along with my youngest daughter Moumi went to the R. G. Kar hospital and in that hospital I could not find any of the in laws of my daughter and the doctors of the R.G. Kar hospital advised us to take my daughter to the Apollo hospital so that my daughter might survive and on 2.4.06 my daughter told me in my house that the accd. persons demanded Rs.40,000 from her and share from her father’s property and during her life time in her in laws house the accd. persons used to assault my daughter and insatiate her to commit suicide.

I do not know the educational qualification of Anjan Ganguly at the time of marriage.

I do not know the educational qualification of Anjan Ganguly. Anjan Ganguli is an employee under Central Govt. Police took my handwriting and signature after the incident. Police did not take the handwriting and signature of my husband. We did not accompany my daughter at the time of treatment by her husband after the marriage.

Not a fact that my husband and his friends did n

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