Prosecution Cannot Contradict A Court Witness With Previous Statements Made To Police; But Court Can : Supreme Court

The Supreme Court has stated that a "Court Witness" - a person summoned by the Court as a witness invoking its powers under Section 311 CrPC and Section 165 of the Evidence Act - cannot be cross-examined by the prosecution using the witness's previous statements made to the police.A bench comprising Justice Sudhanshu Dhulia and Justice Prashant Kumar Mishra observed :"Court witnesses can be cross- examined by either side but only with the leave of the Court. Further, the cross-examination is to be restricted only to what was stated by this witness in his/her reply to the questions of the Court, and a Court witness cannot be contradicted to his/her previous statements made before the police i.e. statements under section 161 of CrPC. The proviso to section 162(1)5 of CrPC makes it very clear that only prosecution witnesses can be contradicted against their previous Section 161 CrPC statements. Under the proviso to Section 162(1) of CrPC, Section 161 CrPC statements of any prosecution witness can be used by the defence to contradict such a witness during the cross-examination. The prosecution may also contradict its own witness during cross- examination regarding the previous statements made before the police, but again it can only be done with the leave of the Court."Reference was made to the judgments in Mahabir Mandal & Ors. v. State of Bihar (1972) 1 SCC 748 and Dipakbhai Jagdishchandra Patel v. State of Gujarat & Anr. (2019) 16 SCC 547.At the same time, the Court clarified that the Court can contradict the Court Witness with their previous statements."All the same, none of these restrictions apply to the Court, which has wide power under Section 165 of the Evidence Act to ask any questions. The Courts are not barred from putting questions which may contradict the witness with the previous statements made before the police. The special powers of the Court under Section 165 of the Evidence Act are not impaired or controlled by the provisions of Section 162 of the CrPC."Reference was made to Raghunandan v. State of U.P. (1974) 4 SCC 186.The Court made these observations while upholding the convictions of eleven accused persons in the 'Kannagi-Murugesan' honour killing case from Tamil Nadu.The convicts challenged the Madras High Court's 2022 judgment, which upheld their life sentence. The Court also dismissed the appeals filed by two policemen convicted for fabricating evidence.The Court made these observations in terms of making a distinction between the additional witness summoned under Section 311 of the CrPC and a Court witness. The Court stated that the powers exercised under Section 311 are for calling an additional witness at any stage, even after the closing of the evidence, are wide and there is no restriction on the cross-examination of such witness. The same cannot be said about a court's witness, who is called, invoking Section 311 CrPC, read with Section 165 of the Evidence Act. The case involved the dastardly murder of a young inter-caste couple, S Murugesan and D Kannagi, who were poisoned by the girl's father and brother. Murugesan was a graduate in Chemical Engineering and belonged to the Dalit Community. Kannagi was a commerce graduate and belonged to the Vanniyar community. The couple were secretly married on May 5, 2003. When Kannagi's family came to know of the marriage, they apprehended the couple on July 7, 2003, just as they were about to leave town and made the couple drink insecticide(poison), which resulted in their death. Their bodies were later burned.In the present case, the Court found that PW-49(step-mother of Murugesan), who was the eyewitness, was not cited as a witness in the chargesheet filed by the CBI. It was only later during the trial that an application was moved by the prosecution under Section 311 CrPC, summoning her as an additional witness. However, this was challenged on the grounds that she should have been called as a 'Court witness' and not a prosecution witness because of the apprehension that she could turn hostile and this would ultimately benefit the accused persons.The bench made a distinction between summoning a person as an additional witness and a court witness and said that the former allows a lot of discretion, whereas, in the latter, the cross-examination is restricted in terms of the fact that only through the person of the Court that the parties can cross-examine the court's witness.In 2021, the trial court awarded death sentence to Marudupandian, Kannagi's brother, and sentenced 12 others, including her father, to life imprisonment. In 2022, the Madras High Court commuted the death sentence of Marudupandian to a life sentence and confirmed the life sentence of ten others, including her father. Two persons were acquitted.Today, the Supreme Court also directed the grant of Rs 5 Lakhs compensation jointly to the father and step-mother of Murugesan.Other reports about the judgment can be read here.Case Details : KP Tamilmaran vs State SLP(Crl) No....

Prosecution Cannot Contradict A Court Witness With Previous Statements Made To Police; But Court Can : Supreme Court

Gursimran Kaur Bakshi

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