In this paper, we will try to understand the concept of contradicting a witness with his previous statement but in a limited manner as to what constitutes a previous statement.
We know that the concept has been provided in Section-145 of the Evidence Act which reads as “145. Cross-examination as to previous statements in writing.- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”
- The Supreme Court was once faced with the question in the infamous Nirbhaya case. The prime witness therein had given interview to a news channel, though it was done after the filing of the charge-sheet. The accused wanted to confront the recording of the interview to the witness during his deposition. The decision was reported as State vs Mukesh (2014) 15 SCC 661.
2.1. The Supreme Court therein observed as “Having carefully considered the submissions made on behalf of the respective parties, we are inclined to hold that, from the scheme of the Code of Criminal Procedure and the Evidence Act, it appears that the investigation and the materials collected by the prosecution prior to the filing of the charge-sheet under Section 161 of the Code, are material for the purposes of Section 145 of the Evidence Act, 1872. The expression “previous statements made” used in Section 145 of the Evidence Act, cannot, in our view, be extended to include statements made by a witness, after the filing of the charge-sheet”.
2.2. On applicability of Section-146 of the Evidence Act, the Supreme Court observed as “In our view, Section 146 of the Evidence Act also does not contemplate such a situation and the intention behind the provisions of Section 146 appears to be to confront a witness with other questions, which are of general nature, which could shake his credibility and also be used to test his veracity. The aforesaid expression must, therefore, be confined to statements made by a witness before the police during investigation and not thereafter”.
2.3. Additionally, the Supreme Court also found fault on the point that the statement to be utilized was not given to a police officer. It observed as “Coupled with the above is the fact that the statement made is not a statement before the Police authorities, as contemplated under Section 161 of the Code. It is not that electronic evidence may not be admitted by way of evidence since specific provision has been made for the same under Section 161 of the Code, as amended, but the question is whether the same can be used, as indicated in Section 161, for the purposes of the investigation. If one were to read the proviso to sub-section (3) of Section 161 of the Code, which was inserted with effect from 31st December, 2009, it will be clear that the statements made to the police officer under Section 161 of the Code may also be recorded by audio-video electronic means, but the same does not indicate a statement made before any other Authority, which can be used for the purposes of Section 145 of the Evidence Act”.
- On the aforesaid premise, the Supreme Court declined to permit the accused to confront the witness with his interview given after the filing of the charge-sheet.
3.1. A bare glance at the Section-145 shows that neither it is confined to the statement made during investigation nor is confined to statement made before a police officer. The only pre-requisite of a statement to being treated as ‘previous statement’ is that it must have been written by the witness himself earlier or must have been reduced into writing. The contemplation that the previous statement could have been written by the witness himself is clearly defying any possible logic which could support any assumption regarding the claim that it is confined to a statement made during investigation or made before a police officer.
- However, it seems that the Supreme Court recently had an occasion to rectify its mistake and it did so in Jasdeep Kaur Chadha vs State, dated 14.08.2017. Here, it allowed the prosecution to confront the witness with material collected after the chargesheet.
4.1. The case presents a very interesting situation. One witness was resiling from his statement whereas the same witness had already supported the prosecution case against one of the co-accused being tried before a Juvenile Justice Board. The prosecution wanted to confront the witness with his statements given before the JJB on various dates.
The main objection on behalf of the accused was that such statements being not collected during the investigation and having come into existence only after filing of charge-sheet of the case cannot be treated as previous statement. The accused succeeded in trial court as well in the high court. Supreme Court however reversed the orders and allowed the prosecution to confront the witness with such statements.
It expressed its opinion as “On bare perusal of Section 145 of the Indian Evidence Act, we find that the section does not put any limitation that the previous statement must be during investigation nor creates a bar to a statement subsequent to investigation being confronted to the witness if such statement is in writing and is relevant as per the said provision. The only requirement is the provision is that the statement should be in writing or should be reduced to writing and relevant to the matter in question”.
4.2. When the judgment in Mukesh(supra) was brought to the notice of Supreme Court, it termed the case as per incuriam by observing “No doubt, the judgment of this Court in State (NCT of Delhi) Vs. Mukesh (supra) has expressed the view that the previous statement must be the statement made during investigation only but the said judgment is per incuriam. The view taken by the larger Bench of this Court in Tara Singh Vs. The State (Supra) has not been referred to and thus, the law laid down by larger Bench continues to be the binding law”.
4.3. Supreme Court ultimately held as “Accordingly, we are of the view that there was no bar to the previous statement being confronted to the witness even if such statement was made after investigation subject to the applicability of Section 145”.
- We however have to be mindful about the doctrine of precedent. The judgment in Mukesh(supra) is a decision rendered by three judges bench whereas Jasdeep(supra) is by two judges. The entire per incuriam notation has been invoked on the premise that there was a judgment rendered by four judges in Tara Singh vs State. It is then necessary to have a look at the said decision.
- The four judges bench of Supreme Court in Tara Singh vs State AIR 1951 SC 441 has dealt with the issue in a particular manner. In this case, certain evidence were recorded in committal proceedings but during trial the concerned witnesses resiled and the Sessions Court used its power available under Section-288 of the CrPC 1898 to bring the said evidence (recorded during committal proceeding) on record. One of the issues arising before the Supreme Court was the due compliance of Section-288 which provided for utilization of evidence recorded before committal court but subject to the provisions of Evidence Act.
6.1. The Supreme Court observed as “I hold that the evidence in the Committal Court cannot be used in the sessions Court unless the witness is confronted with his previous statement as required by S.145 Evidence Act.
Of course, the witness can be cross-examined about the previous statement and that cross-examination can be used to destroy his testimony in the Sessions Court.
If that serves the purpose of the prosecution, then nothing more is required, but if the prosecution wishes to go further and use the previous testimony to the contrary as substantive evidence, then it must in my opinion, confront the witness with those parts of it which are to be used for the purpose of contradicting him”.
6.2. The judgment in Tara Singh clearly shows that Section-145 is not confined to a statement made only during the investigation.
- Another three judges bench of Supreme Court had also an occasion to comment upon the issue in Mohanlal Gangaram Gehani Vs. State of Maharashtra (1982) 1 SCC 700. This judgment is though primarily dealing with the concept of contradiction between testimony of two different witneses and held that Section-145 would not be applicable thereto, but in that process it also commented upon the scope of Section-145 by observing as “It is obvious from a perusal of Section 145 that it applies only to cases where the same person makes two contradictory statements either in different proceedings or in two different stages of a proceeding. If the maker of a statement is sought to be contradicted, his attention should be drawn to his previous statement under Section 145. In other words, where the statement made by a person or witness is contradicted not by his own statement but by the statement of another prosecution witness, the question of the application of Section 145 does not arise”.
7.1. This judgment was rendered by a three judges bench and that too much prior to the Mukesh(supra) and therefore, Mukesh(supra) is also going per incuriam to this judgment.
- However, one peculiar point of Mukesh(supra) needs to be noted. This judgment has, in passing, relied upon a six judges bench decision in Tahsildar Singh by observing “In this regard, reference may be made to the decision rendered by a Bench of six Judges of this Court in Tahsildar Singh & Ors. vs. State of Uttar Pradesh A.I.R. 1959 S.C. 1012, wherein, in somewhat similar circumstances, it was stated that “previous statement” would be such statements as made during investigation”.
8.1. We therefore have to have a look at Tahsildar Singh, as if the said judgment holds so, it being the larger in quorum vis a vis Tara Singh has to be accepted as a precedence. A bare glance at the Tahsildar Singh shows that it was not even related to the intricacies of stages of previous statement. It was primarily dealing with the then Section-162 CrPC and its effect and considering the point of omission in the previous statement.
There is nothing in the Tahsildar Singh case suggesting that a previous statement contemplated in Section-145 is only with reference to any statement made during investigation. It is thus clear that Tahsildar Singh is not an authority on this point. In such circumstances, Tara Singh (four judges bench) and Mohanlal (three judges bench) have to prevail upon Mukesh(supra) and as such, Mukesh(supra) has to be treated as per incuriam.
- From the discussion aforesaid, following conclusions emerge:
- Previous statement in Section-145 is not confined to a statement made during the investigation;
- Previous statement can be any statement which is made prior to the point when the deposition of witness is being recorded in the court;
- Previous statement can be two contradictory statements either in different proceedings or in two different stages of the same proceeding;
- Statement recorded before a juvenile justice board, of a witness can also be utilized for the purpose of Section-145 if the witness appears to depose in normal court;
- Section-145 has no application if one witness is to be contradicted with the statement of another witness;
- Decision in Mukesh(supra) is per incuriam and need not be followed.