The Gauhati High Court recently upheld the order of a trial court wherein it had rejected a plea on the ground that the defence side had failed to prove the contradictions of the witnesses in accordance with law.
While examining the validity of such conclusion recorded by the learned trial court, the division bench of Justice Suman Shyam and Justice Robin Phukan relied on Section 145 of the Indian Evidence Act, 1872, which laid down the manner in which cross-examination of the witnesses was to be made as to any previous statement made in writing.
The Court relied on the case of V. K. Mishra and another Vs. State of Uttarakhand and another where the Supreme Court had the occasion to consider the correct manner of proving contradictions as to any previous statement made by a witness.
The Apex Court in that case had held,
"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 become 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 drawn to that statement and 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 made that 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 motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act that is, by drawing attention to the parts intended for contradiction."
In the instant case, the High Court found that the defence counsel had failed to invite the attention of the witnesses to any previous statements in writing so as to contradict the witnesses. Therefore, it was of the view that the defence could not be permitted to avail the benefit of such alleged contradictions, if any, in the testimony of the prosecution witnesses.
These developments came in an appeal against conviction which was preferred by five appellants assailing the judgment and order dated 11.03.2019 passed by the Additional Sessions Judge, Sonitpur, Tezpur in a case where charges were framed against the accused persons under sections 302 read with section 149 of the IPC.
The trial court had sentenced each of them to undergo rigorous imprisonment for life and also to pay fine of Rs.5000/- each and in default, to suffer rigorous imprisonment for three months each.
The trial court had held that the prosecution has succeeded in establishing the charges brought against the appellants beyond reasonable doubt, both by direct evidence of the eye-witness as well as by the circumstantial evidence. It had further held that the deceased was last seen together with the accused persons and therefore, the circumstance of "last seen together" would also be an additional link in the chain of circumstances which would support the prosecution case.
Furthermore, the defence counsel's argument that the testimony of the prosecution witnesses were full of inconsistencies and material contradictions raising serious doubt on the prosecution story was also rejected by the court below when it held that those were minor discrepancies which would have no bearing in the prosecution case.
The trial court had thus held that the defence side had failed to prove the contradictions in the testimony of the prosecution witnesses by following the due procedure laid down by the law.
The High court went through the statements of all witnesses as recorded before the trial Court.
It was found that during his cross-examination the I.O. had brought on record certain contradictions in the testimonies of a few prosecution witnesses. Since these contradictions were heavily relied upon by the defence side so as to impeach the prosecution case, the Court dealt with them in greater details.
The eye-witness had categorically deposed that he had seen 8/10 people including the appellants assaulting the deceased by means of "dao". The Court thus noted,
The evidence of PW-4 could not be shaken during his cross – examination. However, it is also seen from his statement recorded by the Police under section 161 Cr.P.C that the PW-4 did not mention the name of Abdul Kadir Gilani as one of the persons whom he had seen to have assaulted the victim. The name of Gilani has been added by PW-4 for the first time while deposing before the court. From the above it is evident that there has been some exaggeration and embellishment in the testimony of this witness. The question is, should the evidence of this witness be discarded due such exaggeration and embellishment ?
In this regard, the Court relied on the case of Leela Ram v State of Haryana, wherein the Supreme Court had observed that one hardly comes across a witness whose evidence does not contain some exaggeration or embellishment but the court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. The evidence of such witnesses are to be considered from the point of view of trustworthiness. Total repulsion of the evidence would be unnecessary.
"In the present case, we have noticed that there are some omissions such as failure on the part of the PWs-4 and 9 to state before the police that they had arrived at the place of occurrence in a motorcycle or that the PW-1 had failed to state that he came riding in a motorcycle and in the flash of headlight of the motorbike he had seen the assailants leaving the place. But such omissions, in our view, do not erode the credibility of these witnesses since the basic facts stated by them before the police do not contradict their earlier statements in a manner such that both their statements cannot co-exist. Moreover, as mentioned above, the defence side has also failed to prove the contradictions in the statement of these witnesses in the manner required by law. On the contrary, we find that the version given by PWs-1, 3, 4, 5, 6 and 9 broadly bears up the same story without any vital contradictions and therefore, their evidence is found to be trustworthy", remarked the Court.
The Court further relied on a decision of a Division Bench of the High Court rendered in the case of Ghanakanta Das & others Vs. State of Assam wherein it held that the procedure to be followed in order to contradict the evidence adduced by the prosecution witnesses during trial with a statement made before the police during investigation would be to draw the attention of the witness to that part of the contradictory statement and question him as to whether, he did in fact make the statement.
"If the witness admits to have made the particular statement before the Police then his admission would be recorded and would form part of his testimony and can be relied upon by the accused as establishing the contradiction. However, if the witness denies of having made such statement before the Police then the particular portion of the statement should be previously marked for identification and when the Investigation Officer (I.O.) comes to the witness box, he should be questioned as to whether the witness had made the particular statement before him during the course of investigation. The answer of the I.O would prove the contradiction. Unless the said procedure is followed and the witnesses are given opportunities for explanation, their previous statements made before the police cannot be used for contradictions. On such failure, it was held that the testimony of the witnesses could not have been thrown out on the ground that their evidence before the trial court has been contradicted by the previous statements made before the police."
In so far as ne of the appellant Md. Abdul Kadir Gilani was concerned, the Court held that evidence on record although indicated his presence in the place of occurrence but it was not sufficient to indicate his involvement in committing the offence.
"Therefore, there is a genuine doubt as regards his actual involvement in commissioning the crime. As such, giving the benefit of doubt, the conviction of appellant Md. Abdul Kadir Gilani is hereby set aside and he is acquitted of the charges brought against him. Consequently, we direct that the appellant Md. Abdul Kadir Gilani be forthwith released from jail if his custodial detention is not required in connection with any other case", ordered the Court.
The appeal was thus partly allowed.
Cause Title: Abdul Kadir and 4 Ors v State of Assam
Senior Advoacte R. P. Sarmah, assisted by Advocate M. R. Adhikari, appeared for the appellants. Additional Public Prosecutor, B. Bhuyan, appeared for the State/respondent No.1 and Advocate K. M. Haloi, represented the informant/ respondent No.2.