Right Of Accused To Impeach Witness Testimony Indefeasible, Embargo Under Section 172(3) CrPC Not Applicable: Kerala High Court

The Kerala High Court has held that the embargo in Section 172(3) of the Code of Criminal Procedure (CrPC) does not take away the right of the accused to use previous statements of witnesses to impeach their testimonies.

Justice K Haripal while allowing the petition, observed as such in light of Section 161 of the CrPC and Section 145 of the Indian Evidence Act:

"...it is the right of every accused in a criminal trial to make use of the previous statements of a witness including the statements recorded by the investigating agency during the course of investigation for the purpose of establishing contradiction in evidence or to discredit the witness."

Reliance was placed on the Apex Court judgment in Tahsildar Singh & Ors v. State of UP, to observe:

"This right has not been taken away by Section 172 of the CrPC. In other words, such a right is an indefeasible one available to the defence," 

The Court opined that this is imperative to ensure that any trial which is primarily aimed at ascertaining the truth, is fair to all concerned.

"After all, the paramount consideration of every trial is to find out the truth. A trial that is primarily aimed at ascertaining the truth has to be fair to all concerned. A fair trial is the hallmark of a civilised society. While ensuring a fair trial, the interests of the accused also have to be protected. There are in built mechanisms in our statutes for protecting the interests of all. The attempt of the petitioner is to preserve his interest which is statutorily protected."

The order was passed in two petitions under Section 482 of CrPC preferred by the first accused in a double murder case. The trial court had found him guilty of murdering a duo and causing injuries to three others.

There were ten accused in the matter, all belonging to the same family. They are collectively facing trial now.

While the prosecution evidence was being adduced, the petitioner obtained a report of the DySP Crime Branch by way of the Right to Information Act, which allegedly contained contradictory statements from some witnesses.

The definite case of the prosecution was that one of the deceased was stabbed by the 1st accused.

According to the defence, during 'further investigation', some of the witnesses had given a different version that the deceased was stabbed by the 3rd accused. 

Thereafter, the petitioner herein filed an application before the Additional Sessions Judge for issuing summons to witnesses, including the DySP in an attempt to impeach the testimony of some of the witnesses

However, this was disallowed by the trial court on the premise that no further investigation was conducted by the said DySP and that no such report was made available before the court.

Aggrieved by such dismissal, the accused approached the Court contending that the embargo under Section 172(3) of the CrPC would not be applicable to the instant case.

Section 172(3) reads as follows:

"Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court."

Advocate Renjith B Marar appearing for the petitioner argued that he had not called for the case diary.

In fact, the application to summon the DySP was filed under Sections 233(3) and 91 of CrPC for producing statements recorded by him for the purpose of contradicting and impeaching some of the prosecution witnesses.

It was contended that even though the prosecution does not rely on those documents, the indefeasible right of the accused persons to impeach the testimony of witnesses cannot be denied.

On the other hand, according to Senior Public Prosecutor T.R Renjith, no such further investigation was conducted by the said DySP.

In his opinion, the Additional Sessions Judge was right in rejecting the application.

It was submitted that there was only one investigation which was conducted by the local police and all the witnesses were examined on the side of the prosecution.

According to them, the embargo under Section 172(3) of the CrPC is absolute, that such a document is not available for the defence.

Moreover, the report of the DySP was merely a 'petition enquiry', the Public Prosecutor claimed, implying that it was merely a formal enquiry conducted after some of the suspects moved the Home Minister requesting to transfer the investigation to the Crime Branch.

The Court noted that the DySP had conducted an enquiry on the feasibility of conducting a further investigation by the Crime Branch and during the course of such enquiry some of the witnesses were examined and their statements were reduced into writing.

It opined that previous statements given by the prosecution witnesses in respect of the very same transaction are very relevant and important for the purpose of understanding the real facts. 

"No doubt, the embargo under Section 172(3) of the Cr.P.C. cannot come into play for the simple reason that no such further investigation was conducted by Dy.S.P. Rafeek. However, the defence could get a climbing stem. According to them, statements given by some of the prosecution witnesses to the Enquiry Officer were on different lines. Such a valuable right cannot be denied to the defence."

Therefore, it allowed the petition and directed the Additional Sessions Judge to issue summons to the DySP as well and also issue a summons for the production of documents under Section 91 of the CrPC.

Case Title: Selvaraj v. State of Kerala 

Click Here To Read The Order