The Jammu and Kashmir and Ladakh High Court, while upholding the acquittal of a Police officer in a 20-year-old rape case, emphasized that the examination-in-chief of a witness cannot be considered to establish liability unless the opposing party is given a fair opportunity to cross-examine the witness regarding the information presented during the examination-in-chief.
Brief Facts:
Santosh Kumari, the mother of the prosecutrix, filed a report stating that she and her daughter lived as tenants in the house of a police inspector. The prosecutrix worked in respondent no. 1's shop and was allegedly forced into sexual intercourse by him and two others. The complainant reported the incident but later entered into a compromise. An investigation revealed that respondent no. 1 raped the prosecutrix while respondent no. 2 attempted but failed. The prosecution evidence lacked cross-examination of the complainant and prosecutrix, leading the trial court to deem it insufficient. The court also considered the delay in lodging the FIR and the complainant's behavior, resulting in the prosecution's failure to prove its case.
Contentions of the Appellant:
The appellant contended that the acquittal by the trial court was valid.
Contentions of the Respondent:
The State, in its challenge against the acquittal, contended that the term 'evidence' under Section 3 of the Evidence Act encompasses all statements made by witnesses before the court, including examination-in-chief, cross-examination, and re-examination, as permitted or required by the court. This definition is subject to the court's permission.
Observations of the Court:
Justice Sekhri, in order to decide on the issue, observed that Section 138 of the Evidence Act explicitly states that the examination of a witness encompasses examination-in-chief, cross-examination, and re-examination. Re-examination is intended to clarify matters raised during cross-examination, and if new facts are introduced during re-examination, the opposing party may conduct further cross-examination on those specific facts.
Further, the court noted that under Section 33 of the Evidence Act, the evidence given by a witness in a judicial proceeding is considered relevant to establish the truth of the stated facts in a later stage of the proceedings if the witness is deceased or unavailable, provided that the opposing party had the opportunity to cross-examine. The proviso attached to Section 33 makes it clear that such evidence can be used to prove the truth of the stated facts only if the affected party had the right and chance to cross-examine the witness.
The bench observed that the application for cross-examination of the prosecutrix and the complainant was granted. However, due to the prosecutrix's demise and the complainant's unavailability, neither could be cross-examined. Consequently, the court reasoned that their incomplete statements, lacking cross-examination, cannot be considered legal evidence or used to hold the respondents criminally liable. Applying the said position of law to the case at hand, this conclusion was reached.
“Another material aspect of the case is a delay in lodging of FIR by the complainant, which the prosecution has failed to explain and the investigating officer who was supposed to explain the delay has not been examined in the case. Learned trial judge has rightly observed that discussion on this legal issue has become academic in view of the answer to the first legal argument that incomplete statement of the prosecutrix and the complainant, in the absence of their cross examination is unworthy of credence. However, it assumes significance in view of discrepant statement made by the prosecutrix and the complainant in their chief examination. The prosecutrix deposed in chief examination that her mother went to the police station 3/4 days after the occurrence and lodged the report, despite the fact that she had given a graphic narration of the occurrence to her mother on the same day of the occurrence. On the contrary, the complainant PW-3 Santosh Kumari has stated that she went to police post Pacca Danga on the same day when her daughter told her about the occurrence, since nobody was found in the police station, she returned back.”
The decision of the Court:
The present appeal was dismissed, and the impugned judgment was upheld.
Case Name: State of J&K Vs Davinder Kumar & Ors.
Coram: Hon’ble Mr. Justice Rajesh Sekhri
Case No: CRAA No. 189/2014
Advocate for the Appellant: Mr. Pawan Dev Singh, Dy. AG.
Advocate for the Respondent: Mr. Gagan Oswal, Advocate
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