Dinesh Kumar Sonkar vs State Of U.P. & Another
2017 Latest Caselaw 3565 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R. 
 
Court No. - 43
 

 
Case :- APPLICATION U/S 482 No. - 26704 of 2017
 

 
Applicant :- Dinesh Kumar Sonkar
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Applicant :- Deepak Kumar Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Karuna Nand Bajpayee,J.

This application u/s 482 Cr.P.C. has been filed on behalf of applicant seeking the quashing of impugned order dated 21.7.2017 passed by learned Additional Sessions Judge, Varanasi/Fast Track Court, Varanasi in Sessions Trial No.517 of 2017 (State vs. Dinesh Sonkar) in Case Crime No.64 of 2015, u/s 366/506 I.P.C., Police Station-Shivpur, District-Varanasi and also seeking a further direction to the court below to examine the doctor namely Priti Jaiswal for recording the statement as P.W./D.W.

Heard learned counsel for the applicant.

Submission of counsel for the applicant is that the impugned order dated 21.7.2017 contains some wrong observations which vitiates the order. Actually it was the doctor who was sought by the applicant to be summoned in defence and not the victim girl, but the order impugned contains the observation in the concluding part which shows that the court below passed the order under misimpression that as the victim had already been examined, and therefore, she should not be recalled to be re-examined again. In such circumstances, the impugned order should be set aside by way of which the court has declined to summon the doctor who was needed to be examined in defence.

Heard learned A.G.A. and perused the record.

The real controversy in question appears to have emanated from the fact that the victim during the course of her cross-examination denied the suggestion that she was taken to the medical expert and there she had wilfully refused to get herself medically examined. While the actual fact is that during the course of investigation the victim was actually taken to the doctor and she had wilfully refused to get herself medically examined and had also affixed her signature to the same refusal. According to the counsel this is a contradiction between the statement of the victim and the document and therefore the doctor ought to be summoned in defence in order to prove that the girl did not state the facts correctly and her denial about her previous refusal to get herself medically examined is a wrong fact, and therefore, the applicant ought to have been permitted to call the doctor and produce him in order to show that the girl had indeed refused her medical examination and had also affixed her signature on the paper in that regard and thus to impeach her character and credit worthiness.

After going through the entire factual scenario, this Court is of the opinion that though this is true that the defence has the right to produce whatever evidence it wants to produce in defence but as it has already been disclosed as to for what purpose the aforesaid defence is being sought to be led then this has become relevant for the court to see whether such a witness ought to be summoned legally or not and whether any useful or fruitful purpose may be served by her production or not. If the point in order to prove which a particular witness is being summoned is such which is not going to decide either the point in issue or any relevant fact then such an exercise will be a fruitless exercise and cannot be permitted. The aforesaid contradiction in order to prove which the medical doctor is being summoned is in the considered opinion of the Court absolutely irrelevant. Denying the wilful refusal as was done by the victim girl is on the very face of it a false statement and according to the documents available on record there is no doubt that she has given an incorrect statement for reasons best known to her. But even if it is presumed that she gave this incorrect statement then what useful purpose is going to be served by proving the same? The question is whether this contradiction goes to the root of the matter and the question is whether this is a contradiction which can actually impeach the credit or the testimony of the witness or not. There is hardly any witness who may give a statement in which one cannot point out some inconsistencies, some incompatibilities or some contradictions but the contradictions which are ancillary in nature and are on the periphery of the issue do not go to the root of the matter and are so trifling or trivial that no prudent man on that basis can proceed on the presumption that the victim is not a truthful witness, then such a contradiction become meaningless. Whether the girl actually refused to get herself medically examined or whether she did not, is hardly going to decide either the truthfulness of the prosecution story or the truthfulness of the version given by the victim. Such kind of contradiction is absolutely trifling in nature and is collateral to the point in issue. In fact in order to avoid such kind of defence evidence from coming on record, a section in the Indian Evidence Act has been specifically enacted which prohibits the production of evidence in order to rebut such prosecution evidence or the alleged false answers of the prosecution witnesses which are collateral to the point in issue and relate to the credit of the witness and his character. In this regard it shall be very apt to recall the law laid down by Division Bench of this Court in Ram Bali and others vs. State of U.P., AIR (39) 1952 Allahabad 289. In this case one witness Sheikh Nazir Hasan was said to have witnessed the occurrence because on the day of occurrence he had gone to obtain arus leaves from some place and then in the way he had happened to see the incident. Another prosecution witness Katwaru was cross-examined on behalf of accused with a view to show that witness Sheikh Nazir Hasan could have obtained arus leaves from a different place nearer to his house than the place where he claimed to have been going and which gave him occasion to witness the occurrence. This entire cross-examination in order to assail the credit of witness Sheikh Nazir Husain was held to be impermissible by thhis Court as the same was against the law which prohibits the production of any evidence to contradict the witness on an answer which affects only his character and credit. The cross-examination was held to be not on a matter relevant to the point in issue. Whether arus leaves could be found at another place or not was not found or held relevant to the issue in question. It shall be pertinent to quote the relevant part of the aforesaid case law : 

"7. ..................... Katwaroo has his house quite near Harbans Singh's and was a most likely witness of the occurrence. The other two witnesses of the actual occurrence happened to be passing by the house of Harbans only by chance. This fact may excite our suspicion but is not alone enough for a finding that the evidence given by them is false. Katwaroo was cross examined on behalf of the accused with a view to show that Sheikh Nazir Hasan could obtain arus leaves from a place nearer his house than the place behind Harbans Singh's house. This cross examination was against the law because no evidence could be produced by the accused to contradict the evidence of Sheikh Nazir Haaan about the reason for his being at the place of occurrence at the time when it took place. Obtaining matter through cross examination of another witness is same as obtaining it from examination in chief of own witness. In this respect the law makes no distinction between matter brought on record through examination-in-chief of own witness and that brought on record through cross-examination of a witness of the adversary. That evidence was not on a matter relevant to the issue. Whether arus leaves could be found at another place or not was not a matter relevant to the issue. The law, as stated by Phipson on Evidence, Edn 8 is :

"After a proper foundation has been laid in cross-examination (Browne v. Dunne, ante, 468), a party may contradict his opponent's witnesses by independent evidence on all masters relevant to the issue, and in particular as to their previous contradictory statements." (at p. 471).

"A party may not, in general, impeach the credit of his opponent's witnesses by calling witnesses to contradict him on irrelevant matters, and his answers thereon will be conclusive." (p. 472).

Similar statement of law would be found in Taylor's Law of Evidence, paras. 1435 and 1438. He gives the reasons on which the rule is founded, in para. 1439; they are :

"First, that a witness cannot be expected to come prepared to defend, by independent proof, all the actions of his life; and next, that to admit contradictory evidence on such points would of necessity lead to inextricable confusion, by raising an almost endless series of collateral issues."

8. A case exactly similar to the present case is Piddington v. Bennett & Wood Proprietary Ltd., 63 C. l. r. 533. A person claiming to be an eye-witness of an accident explained that he happened to be at the spot because he was carrying a message from a bank to J. The opposite party attempted to produce evidence to prove that J had not operated upon his account with the bank on that day and that consequently the witness was lying when he said that he was carrying a message to J. The High Court of Australia ruled out the evidence as inadmissible. It laid down that if a question in cross-examination affects only the credit of the witness and is not relevant to the matters actually in issue, the witness's answer cannot be contradicted by other evidence except in certain exceptional cases."

It will not be out of place to keep in perspective Section-153 of Indian Evidence Act, which may be quoted herein below and which reads as thus :

"153. Exclusion of evidence to contradict answers to questions testing veracity.--When a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him; but, if he answers falsely, he may afterwards be charged with giving false evidence.

Exception 1.--If a witness is asked whether he has been previously convicted of any crime and denies it, evidence may be given of his previous conviction.

Exception 2.--If a witness is asked any question tending to impeach his impartiality, and answers it by denying the facts suggested, he may be contradicted.

Illustrations

(a) A claim against an underwriter is resisted on the ground of fraud. The claimant is asked whether, in a former transaction, he had not made a fraudulent claim. He denies it.

Evidence is offered to show that he did make such a claim.

The evidence is inadmissible.

(b) A witness is asked whether he was not dismissed from a situation for dishonesty. He denies it.

Evidence is offered to show that he was dismissed for dishonesty.

The evidence is not admissible.

(c) ......................

(d) ......................"

When the facts of the present case are appreciated in the light of the law laid down by the Division Bench of this Court in Ram Bali's case (supra), it is not difficult to see that the accused wants to summon the doctor only in order to impeach the character or credit of the witness and show that she gave a false statement and in fact she herself had refused to get her medically examined. This denial or this alleged falsity of her statement in the opinion of this Court will not make the witness reliable or unreliable, trustworthy or untrustworthy and no defence evidence can be led in order to rebut the answers or the evidence which relate to the credit and character assassination of this witness. The credibility of the witness can be impeached only by way of cross-examination permissible within the parameters laid down by Indian Evidence Act and not by adopting anything beyond that. The controversy in question or the denial made by the victim girl is so ancillary and off the point that even if a full rebuttal of the same is done by the accused, he is not likely to gain even an inch so far as the decision of the court to act upon her testimony is concerned and such kind of denial done rightly or wrongly, truly or falsely will definitely be something which will be so collateral and ancillary to the point in issue that it cannot be said to be a relevant fact, if we are to understand the term relevant as has been defined in the Indian Evidence Act. Therefore permitting the accused to summon the doctor in order to contradict such denial of the witness, as has been discussed above, will be a profligate wastage of court's precious time. If every little inconsistent statement or every little falsity is allowed to be rebutted by the defence then probably this will be an endless process, and therefore, despite the fact that the impugned order contains some incorrect observations and despite the fact that the reasoning to refuse permission to produce and summon the doctor is faulty, this Court, after having gone through entire gamut of facts, does not feel inclined to permit the accused to lead evidence in that regard and call the doctor just to contradict a trifling denial of the witness. The purpose for which the doctor has been sought to be produced is absolutely insignificant, meaningless and shall not go help the Court to decide the point in issue or any relevant fact either way. The credit of witness has been sought to be impeached by assailing her character and evidence cannot be allowed to be produced to rebut the answers given by witness in that regard.

In such circumstances, there seems to be no good ground to quash the impugned order. The application being devoid of merit stands dismissed therefore.

Order Date :- 24.8.2017

M. Kumar