Kerala High Court
Nikhildas vs State Of Kerala on 10 June, 2025
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Crl.M.C.No.10504/2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
TUESDAY, THE 10TH DAY OF JUNE 2025 / 20TH JYAISHTA, 1947
CRL.MC NO. 10504 OF 2023
CRIME NO.132/2021 OF KATTOOR POLICE STATION, THRISSUR
AGAINST THE ORDER DATED 18.11.2023 IN CMP NO.283/2023 in SC
NO.823 OF 2021 OF ADDITIONAL DISTRICT COURT, IRINJALAKUDA
PETITIONERS/ PETITIONERS/ACCUSED NOS.2 & 5
1 NIKHILDAS
AGED 37 YEARS
SON OF DASAN, CHEMBAPPULLY HOUSE,
KARANCHIRA DESOM, KATTOOR VILLAGE,
THRISSUR DISTRICT., PIN - 680702
2 SREEVALSAN
AGED 40 YEARS
SON OF PREMACHANDRAN, PALLICHADATH HOUSE,
PONJANAM DESOM, KATTOOR VILLAGE,
THRISSUR DISTRICT., PIN - 680702
BY ADV SRI.NIREESH MATHEW
RESPONDENT/ RESPONDENT/ COMPLAINANT/ STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI.,
PIN - 682031
SMT PUSHPALATHA M.K., SR. PUBLIC PROSECUTOR
SRI. V. JOHN SEBASTIAN RALPH (AMICUS CURIAE)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
04.06.2025, THE COURT ON 10.06.2025 PASSED THE FOLLOWING:
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Crl.M.C.No.10504/2023
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ORDER
The order dated 18.11.2023 of the Additional Sessions Court,
Irinjalakuda, in CMP No.283/2023 in S.C.No.823/2021, disallowing the
request of the accused Nos.2 & 5 in the said case to summon the Judicial
First Class Magistrate concerned, who recorded the statement of PW3
under Section 164 of the Code of Criminal Procedure, 1973(in short,
'Cr.PC'), is under challenge in this petition filed under Section 482 Cr.PC.
2. The aforesaid case relates to the murder of a lady, who was
the aunt of PW3. PW3, the eyewitness to that incident, was aged only
15 years at the time of incident. At the time of investigation, his
statement was recorded by the Judicial Magistrate concerned, under
Section 164 Cr.PC. During the course of trial before the Sessions Court,
PW3 gave evidence about the act of accused Nos.1 to 3 mounting
physical assault upon the deceased by slashing her with a dagger,
stabbing with knife and exploding hand grenade. He was cross-examined
at length by the learned counsel for the accused. However, no
contradictions were marked. At the time of defence evidence, the
accused sought to examine the Magistrate who recorded the statement
of PW3 under Section 164 Cr.PC. The above request was rejected by the
learned Additional Sessions Judge, mainly for the reason that, in respect
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of the previous statements given by the above witness to the learned
Magistrate, no contradictions were marked at the time of
cross-examination of PW3. Another reason cited by the learned
Additional Sessions Judge was that the improvements made during
cross-examination of the witness cannot be portrayed as material
omissions, and hence the examination of the learned Magistrate was not
required for proving omissions amounting to contradictions. Aggrieved by
the above rejection of the request of the accused for the examination of
the Judicial First Class Magistrate, Kodungallur, as a defence witness, the
petitioners/accused Nos.2 & 5 are before this Court with this petition.
3. Heard the learned counsel for the petitioners, Adv. Mr John
S. Ralph, the learned Amicus Curiae and the learned Public Prosecutor
representing the State of Kerala.
4. On going through Annexure-3 testimony of PW3 before the
Additional Sessions Court and Annexure-2 statement given by PW3 under
Section 164 Cr.PC to the learned Magistrate, it is seen that four
contradictions on material aspects were brought out during
cross-examination, but the learned counsel who conducted the
cross-examination did not take any effort to get the relevant portions of
the previous statements of the witness provisionally marked for the
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purpose of getting it proved through the judicial officer who recorded the
previous statement of the witness. As regards omissions amounting to
contradiction, it is seen that three instances of significant and relevant
aspects pertaining to the previous statement given to the learned
Magistrate were brought out during cross-examination of PW3.
Therefore, the examination of the learned Magistrate before the
Additional Sessions Court was inevitable for proving the above omissions
in the prior statement of the witness.
5. In the guidelines formulated by the Hon'ble Apex Court in
Criminal Trials Guidelines regarding Inadequacies and
Deficiencies In Re v. State of Andhra Pradesh & Ors. [(2021) 10
SCC 598], Clause 10 Sub-Clause (v) makes it clear that omnibus
marking of the entire statement under Sections 161 & 164 Cr.PC shall not
be done. Sub-clause (i) & (iv) of Clause 10 of the above guidelines make
it clear that the relevant portion of the statements recorded under
Section 164 Cr.PC used for contradicting the respective witness shall be
extracted or indicated specifically with the opening and closing words of
the relevant portions through distinct marking for the purpose of proving
those portions by putting it to the person who recorded it.
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6. Following the directions of the Hon'ble Apex Court in the
aforesaid decision, Rule 56A has been incorporated in the Kerala Criminal
Rules of Practice as per which Sub-Rule 10 says that the Rule relating to
marking of contradictions out of the statements under Section 161 Cr.PC
shall apply mutatis mutandis to the statements recorded under Section
164 Cr.PC as well, when such portions of prior statements are used for
contradiction or corroboration.
7. Explanation to Section 162 Cr.PC says that an omission to
state a fact or circumstance in the statement referred to Sub-Section (1)
of Section 162 Cr.PC may amount to contradiction if the same appears to
be significant and otherwise relevant having regard to the context in
which such omission occurs, and whether any omission amounts to
contradiction in the particular context shall be a question of fact. In the
case of such omissions, which appears to be significant and otherwise
relevant in the context in which such omission occurs, the requirement to
extract the relevant portion and to assign distinct marking, is not possible
since the issue relates to the failure of the witness to give such
statements to the authority concerned on a prior occasion. Those new
aspects which the witness stated while being examined before the court
during trial, and which the witness had omitted to state in his previous
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statement, could be brought out only through the examination of the
person who recorded the prior statement of the witness. The concept of
omission amounting to contradiction as envisaged under the Explanation
to Section 162 Cr.PC has been elucidated in a clear and consistent
manner by the Hon'ble Apex Court in Alauddin v. State of Assam
[2024 KHC 6260] wherein it has been held in paragraph No.7 of the
judgment as follows:
"7. When the two statements cannot stand together, they become
contradictory statements. When a witness makes a statement in his evidence
before the Court which is inconsistent with what he has stated in his
statement recorded by the Police, there is a contradiction. When a prosecution
witness whose statement under S.161(1) or S.164 of CrPC has been recorded
states factual aspects before the Court which he has not stated in his prior
statement recorded under S.161 (1) or S.164 of CrPC, it is said that there is
an omission. There will be an omission if the witness has omitted to state a
fact in his statement recorded by the Police, which he states before the Court
in his evidence. The explanation to S.162 CrPC indicates that an omission may
amount to a contradiction when it is significant and relevant. Thus, every
omission is not a contradiction. It becomes a contradiction provided it satisfies
the test laid down in the explanation under S.162. Therefore, when an
omission becomes a contradiction, the procedure provided in the proviso to
sub-Section (1) of S.162 must be followed for contradicting witnesses in the
cross - examination."
8. Thus, the law is trite that when there is an omission which
becomes a contradiction, the procedure provided under the proviso to
Section 162 Cr.PC has to be followed for contradicting the witness in
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cross-examination, and such contradiction could be brought on record
only by the examination of the person who recorded the prior statement
of the witness. That being the position, the denial of opportunity to the
petitioner to prove the contradiction by the examination of the learned
Magistrate who recorded the statement of PW3 under Section 164 Cr.PC,
would amount to travesty of justice. In that view of the matter, the
prayer in this petition to quash Annexure-1 order insofar as it relates to
the rejection of request of the petitioner to examine the learned
Magistrate, has to be allowed.
In the result, the petition stands allowed as follows:
(i)Annexure-1 order passed by the Additional Sessions Court,
Irinjalakuda, in CMP No.283/2023 in S.C.No.823/2021, stands
quashed to the limited extent wherein it disallowed the
request of the petitioner to summon and examine the
Magistrate who recorded the statement of PW3 under Section
164 Cr.PC.
(ii)The learned Additional Sessions Judge is directed to pass the
necessary orders for the examination of the learned
Magistrate who recorded the prior statement of PW3 under
Section 164 Cr.PC., as requested by the petitioner in
C.M.P.No.283/2023.
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This Court places on record its appreciation of the assistance
rendered by the learned Amicus Curiae Adv. Mr John S. Ralph in
addressing the various legal aspects on this matter.
(Sd/-)
G. GIRISH, JUDGE
DST
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APPENDIX
PETITIONER ANNEXURES
ANNEXURE 1 TRUE COPY OF THE ORDER DATED 18.11.2023 IN
C.M.P NO. 283/2023 IN SC NO. 823/2021 PASSED BY
THE ADDITIONAL SESSIONS JUDGE, IRINJALAKUDA
ANNEXURE 2 TRUE PHOTO COPY OF THE STATEMENT OF PW3
RECORDED UNDER SECTION 164 OF THE CR.P.C DATED
22.04.2021
ANNEXURE 3 TRUE PHOTO COPY OF THE DEPOSITION OF PW3 GIVEN
BEFORE THE ADDITIONAL SESSIONS JUDGE,
IRINJALAKUDA IN SC NO. 823/2021
ANNEXURE 4 TRUE PHOTO COPY OF THE ORDER PASSED BY THIS
HON'BLE COURT IN CRL.M.C NO. 3605/2023 DATED
07.06.2023
