Bombay High Court
Meena Tuyekar vs State Of Goa Thr The Public Prosecutor ... on 28 August, 2024
2024:BHC-GOA:1460
2024:BHC-GOA:1460
WPCR-146-2024-F.DOC
vinita
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO. 146 OF 2024-FILING.
MEENA TUYEKAR
Wife of Late Ramesh Tuyekar,
aged 63 years, Indian National,
r/o H. No. 113, Punola, Ucassaim,
Bardez - Goa. .... Petitioners.
Versus
1. STATE OF GOA
Through the Public
Prosecutor, High Court of
Bombay at Goa
2. THE POLICE INSPECTOR
ACB/ Vigilance, Altinho
Panaji - Goa .... Respondents.
Mr Vibhav Amonkar, Advocate for the petitioners.
Mr Nikhil Vaze, Addl. Public Prosecutor for the respondent nos.1
and 2.
CORAM: BHARAT P. DESHPANDE, J
Date : 28th August, 2024
JUDGMENT.:
1. Rule.
2. Rule is made returnable forthwith.
3. Matter is taken up for final disposal at the admission stage with
consent of the parties.
4. The present petition is filed challenging the impugned order
dated 18.1.2024 passed by the trial Court and in the deposition of the
witness/PW1 thereby allowing the Public Prosecutor to refresh the
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memory of the witness by showing him statement recorded by the
Investigating Agency under Section 161 of Cr.P.C.
5. Mr Amonkar appearing for the petitioner/accused would
submit that PW1 was in the witness box who gave a statement under
Section 161 of Cr.P.C. to the Investigating Officer during the
investigation. When the examination in chief began, initially the
witness disclosed that he was present on the date of the incident in
the office and an official of the Anti Corruption Bureau visited his
office along with staff. They were doing some formalities. However,
he disclosed that due to passage of time he cannot recollect the
details of the raid. At this stage learned Public Prosecutor sought
permission of the Court to refresh the memory of the witness by
showing his statement recorded under Section 161 of Cr.P.C. Though
objections were raised by the learned counsel for the accused, the
impugned order was passed thereby allowing the witness to refresh
the memory from the witness box and that too while recording
examination in chief, which is challenged in the present proceedings.
6. Mr Amonkar would submit that statement under Section 161 of
Cr.P.C. cannot be used for any other purpose except as provided
under Section 162 and that too with the permission of the Court. He
submit that request was made by the learned Public Prosecutor and
that too during the chief examination is not in compliance with the
provisions of Section 145 of the Evidence Act read with 162 of the
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Cr.P.C. He would submit that refreshing memory of the witness is
permissible only to contradict the witness, which is permissible
during the cross examination and not while conducting examination
in chief.
7. Mr Amonkar would submit that even Section 159 of the
Evidence Act will not be helpful to the respondents in any manner as
the scope of such Section is totally on different context. He also
further submits that the provisions of Section 172(3) of the Cr.P.C.
only permit the Investigating Officer to refresh his memory from the
case diary but not otherwise.
8. Mr Amonkar placed reliance on the decisions of Simon Vs
State of Kerala,1 and Arun Gulabrao Gawli Vs State of
Maharashtra2. He also placed reliance on the decision of
Superintendent and Remembrance of Legal Affairs, Bengal
Vs Zahiruddin3, to support his contention.
9. Per contra Mr Vaze, learned Addl. Public Prosecutor for the
State would suggest that there is no bar to refresh the memory of the
witness as Section 159 of the Evidence Act permits so. He would
further submit that the provision of Section 172(2) of the Cr.P.C.
permit refreshing the memory with respect to the Investigating
1 1996 CRI.L. J. 3368
2 2022 SCC Online Bom 9501
3 AIR 1946 Cal. 1483
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Officer from the case diary. Accordingly, a request was made to the
concerned Court which was rightly allowed.
10. Mr Vaze, would submit that the Investigating Agency and the
prosecution did not attempt to refresh the memory stiltedly i.e. prior
to stepping into witness box which has been deprecated by the Court.
He would submit that such aspect could be considered at the time of
appreciating evidence of the said witness since the accused will get an
opportunity to cross examine the witness on all these aspects.
11. Mr Vaze, learned Addl. Public Prosecutor relied upon
decisions of Suresh s/o Purshotam Ashtankar Vs State of
Maharashtra and ors, 4, Sharad Namdeorao Shikbhate Vs
State of Maharashtra,5 and Mohan Ambadas Meshram vs
State of Maharashtra through Police Station,
Chandrapur.6
12. Rival contentions fall for determination as under:
13. The fact is admitted that PW1 is the officer of a Transport
Department of the Government of Goa and in whose presence officers
of the Anti Corruption Bureau visited his officer in order to conduct
raid wherein the applicant/accused was allegedly found demanding
and accepting bribe.
4 2014 Law Suit(Bom) 1978
5 2006 Law Suit(BOM) 1509
6 2018 SCC Online Bom 1436
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14. Paragraph Nos.1, 2 and 3 of the deposition of this witness only
disclosed preliminary aspects but when he was asked about the actual
raid, he discussed that due to passage of time he cannot recollect the
details of the raid.
15. What the learned Public Prosecutor did is that instead of
seeking cross examination of the witness, requested permission from
the Court to refresh the memory of the said witness from the
statement recorded under Section 161 of Cr.P.C. though learned
counsel for the accused/applicant objected to it, learned Trial Court
passed an order as under:-
"I find that since the witness has admitted giving
statement to the ACB shortly after the raid was
conducted, due to passage of time, the possibility
of not remembering the details thereof is
relevant and permission can be granted to
refresh the witness's memory from the statement
in writing given by him shortly after the
transaction concerning which he is questioned
or soon afterwards, such that it is likely that the
transaction was fresh in his memory when his
statement was recorded. Hence, permission
granted to refresh his memory."
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16. First of all no provision is quoted either in the order or referred
by the learned Public Prosecutor allowing to refresh the memory of
the witness from the witness box and that too while recording
examination in chief. It is a well settled proposition of law that while
conducting examination in chief, direct questions cannot be put to
the witness. He has to depose on the basis of his memory with regard
to an incident which he witnessed on the day of the concerned
offence.
17. Recording of the statement under Section 161 of Cr.P.C. is only
for the purpose of the Investigating Agency to prepare material for
the purpose of filing chargesheet. Such a statement under Section 161
of Cr.P.C. is not required to be signed by the witness. Even there is
restriction for use of such statements which are found in section 162
of Cr.P.C.
18. It is no doubt true that a witness could be shown a statement or
a portion in the statement only to contradict him with regard to his
previous statement but not otherwise.
19. Provisions of Section 159 of Evidence Act contains two
contingencies were memory of the witness could be refreshed. It says
that a witness may, while under examination, refresh his memory by
referring to any writing made by himself at the time of transactions
concerning which he is questioned or so since afterward with the
Court consideration it is likely that the transaction was at the time
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fresh in his memory. Secondly witness may also refers to any such
writing made by any other person which was read by the witness
within time aforesaid if when he read, it knew it to be correct.
20. Mr Amonkar is justified in disclosing that the statement under
Section 161 of Cr.P.C. will not come within the categories of the
documents referred in Section 159 of the Evidence Act.
21. First of all such a statement recorded under Section 161 of
Cr.P.C. is not in the handwriting of the witness himself nor it is such
writing made by any other person and read by witness within time
mentioned therein.
22. Section 162 of Cr.P.C. clearly prohibits use of statement under
Section 161 of Cr.P.C. except as disclosed in the proviso i.e. to
contradict such witness in the manner provided under Section 145 of
the Evidence Act. Thus, the provision of contradiction is as discussed
in Section 145 of the Indian Evidence Act which basically deals with
cross examination as to the previous statement in writing.
Accordingly, purpose of restraining the use of statement under
Section 161 of Cr.P.C. has to be kept in mind. The only purpose for
which such statement could be used is to contradict the witness and
that too during the cross examination as it amounts to previous
statement of the witness.
23. In the case of Simon (supra), the Division Bench of Kerala
High Court was called upon to decide upon the same circumstances
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which are found in the present matter. Observation in para 11 are
relevant to decide the present revision which reads thus:-
"11. It seems that the learned Sessions Judge is of the
view that the witness could be allowed to refresh
his memory by reading the statement recorded
by the police under Section 161 Cr. P.C. A witness
could be permitted to refresh his memory only
under Sec. 159 of the Indian Evidence Act. That
also could be allowed only under restricted
circumstances. S. 159 of the Evidence Act says
that a witness may, while under examination,
refresh his memory by referring to any writing
made by himself at the time of the transaction
concerning which he is questioned. The witness
may also refer to any such writing made by any
other person, and read by the witness within the
time of the transaction or soon afterwards
concerning the matter he is questioned. It is also
necessary that the court must consider that it is
likely that the transaction was at that time fresh
in the memory of the witness. So, the memory
could be refreshed with reference to some
contemporaneous document prepared by the
witness by himself or made by any other person
which the witness had occasion to read.
Generally, this right is being exercised by expert
witnesses such as a doctor who give evidence
touching the postmortem certificate or wound
certificate prepared by him. A Commissioner
deputed by the court can also refresh his memory
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at the time of giving evidence by referring to the
report contemporaneously prepared by him. But
this special privilege given to the witnesses under
S. 159 of the Evidence Act cannot be made use of
by a witness in a criminal case to refresh his
memory by referring to his earlier statement
given to the police under S. 161 Cr. P.C. This is
because Sec. 162 of the Code of Criminal
Procedure specifically states that the statement
recorded by the police officer under S. 161 could
only be used for certain specific purposes.
Proviso to Sec. 162 Cr. P.C. reads as follows:
"Provided that when any witness is called for the
prosecution in such inquiry or trial whose
statement has been reduced into writing, any
part of his statement, if duly proved, may be used
by the accused, and with the permission of the
Court, by the prosecution, to contradict such
witness in the manner provided by Sec. 145 of the
Indian Evidence Act; and when any party of such
statement is so used, any part thereof may also
be used in the re-examination of such witness,
but for the purpose only of explaining any matter
referred to in his cross-examination".
There are series of decisions to the effect that a
statement recorded under Sec. 161 Cr. P.C. is not
admissible in evidence. Such statement could
only be used to contradict the maker of the
statement as envisaged under Sec. 145 of the
Evidence Act. If such a statement is put to any
other use it should be deemed to have been
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prohibited under Sec. 162 Cr. P.C. So, the learned
Sessions Judge was not justified in stating that a
witness is competent to refresh his memory with
the prior statement recorded under Section 161
Cr. P.C. As the statement made under S. 161 Cr.
P.C. is expressly made inadmissible, a witness
cannot be allowed to refresh his memory by
reading 161 statement and give evidence
accordingly. That would amount to admitting by
the back door an evidence which cannot be
welcomed at the front and it would definitely fly
in the face of the legislative mandate given under
S. 162 of the Cr. P.C."
24. Perusal of the observation of the Kerala High Court would
clearly reveal that attempts by learned Sessions Court by allowing to
refresh the memory of the witness by reading statements recorded
under Section 161 of Cr.P.C. by taking recourse to Section 159 of the
Evidence Act has been rejected by observing that Section 159 of the
Evidence Act could be used only with regard to Contemporaneous
documents and that too for the expert such as doctor who conduct the
post mortem certificate or expert who give opinion based on the
documents placed before him. It is also found that such procedure
could be adopted only in exceptional circumstances but it cannot be
used by a witness to refresh his memory by referring to earlier
statements recorded by the police under section 161 of Cr.P.C.
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25. Mr Vaze heavily relied on the decision in the case of Suresh
Purushottam Ashtankar, (supra) delivered by the Division
Bench of this Court. However, said matter is admittedly in case of any
appeal challenging judgment of conviction in Magistrate trial. While
arguing the matter, it was pointed out to the Court that one of the
witnesses admitted during cross examination that he was allowed to
refresh his memory which is before stepping into the witness box. In
that context and while referring to the decision of the Single Judge in
the case of Sharad Namdeorao Shikbhate (supra) it was
observed in paragraph 32 that such witness cannot be relied upon;
however, refreshing memory with regard to Contemporaneous
record is permissible.
26. In the case of Sharad Namdeorao Shikbhate (supra),
learned Single Judge while dealing with Criminal Appeal In
connection with conviction under section 5 of the Prevention of
Corruption Act observed in paragraph 10 that PW1 admitted during
cross examination that he was allowed to refresh his memory before
stepping into witness box. In this context it is observed by a learned
Single Judge that such a witness cannot be believed. Further it is
observed that nothing wrong in the witness refreshing his memory
but ought to have been done before the Court and not outside the
Court.
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27. With great respect, with this Single statement, it cannot be
construed that it is a ratio laid down by the Court with regard to
refreshing the memory of all the witness in the presence of the Court
and specifically when the witness is in the witness box for recording
his examination in chief.
28. Refreshing memory of a witness and that too with permission
of the Court is allowed only as per the provision of Section 159 of the
Evidence Act and secondly under Section 145 of the Evidence Act for
the purpose of contradiction. If the interpretation of the above
decision is considered that each and every witness is entitled to
refresh his memory, that too for recording examination in chief,
would be clearly against the provision of section 162 of Cr.P.C. as well
as section 145 of the Evidence Act.
29. There is no doubt that the Court is having power to grant
permission to refresh the memory of the witness but it should be in
accordance with law and provisions mentioned in the evidence Act
and not otherwise. Witness is certainly required to be deposed on the
facts which he knew only on the basis of his memory though his
statement is recorded by the police under Section 161 of Cr.P.C. or
even under Section 164 of Cr.P.C. Such refreshing of memory could
be permissible during the cross examination and that too for the
purpose of contradiction but not otherwise.
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30. For all the above reasons, the impugned order passed casually
without considering the relevant provisions needs interference.
31. The impugned order is hereby quashed and set.
32. Rule is made absolute in the above terms.
33. Criminal Writ Petition stands disposed of.
BHARAT P. DESHPANDE, J
28th August 2024
