The High Court of J&K and Ladakh observed that the court cannot rely upon the testimonies of the witnesses and consider them as legal evidence if the opposite party has not been provided with the opportunity to cross-examine the said witness and these testimonies cannot be relied upon to impose any liability upon the accused.
Brief Facts:
The prosecutrix used to make quilt covers in the shop of Respondent 1, who asked the mother of the prosecutrix (PW-3) to drop her in his shop for the night shift. The prosecutrix went to the shop however, she was not allowed to come back. PW-3 lodged a written complaint stating that Respondent 1, who was accompanied by two other boys, forcibly committed sexual intercourse with the prosecutrix. The investigation concluded that Respondent 1 committed rape upon the prosecutrix whereas Respondent 2 attempted to commit rape upon the prosecutrix but did not succeed. They then threw the bedsheet, piece of cloth and underwear in the river to destroy the evidence.
Both the prosecutrix and PW-3 were examined in chief in the trial court however due to the absence of defence counsel, they could not be cross-examined. The trial court allowed the application filed by the respondents under Section 540 CrPC for recalling of witnesses, however, it was found that the prosecutrix had died and PW-3 was not traceable.
Accordingly, the trial court relying upon various provisions of the Evidence Act, concluded that in the absence of cross-examination o the witnesses, the testimonies of both the prosecutrix and PW-3 could neither be treated as evidence nor could be relied upon to sustain the conviction of the respondents.
Contentions of the Respondent:
The learned counsel appearing for the respondents argued that the word ‘evidence’ as defined in Section 3 of the Evidence Act, means and includes all statements that the court permits, or requires to be made before it by witnesses, including the examination-in-chief, cross-examination and re-examination, subject to the permission of the court. It was further argued that as per Section 137 of the Evidence Act, examination of a witness includes chief examination, cross-examination and re-examination, subsequent to the cross-examination by a party who called him and examination-in-chief of a witness cannot be taken into consideration to fasten any liability unless the opposite party is provided with a reasonable opportunity to cross-examine the witness with reference to the information provided by him in his examination-in-chief. The counsel relied on judgments given by the Hon’ble Supreme Court in Gopal Saran vs Satyanarayan and Subash Krishnan vs State of Goa to argue that the court has no option but to ignore the testimony of the witness who did not offer himself for cross-examination. It was further argued that under Section 33 of the Evidence Act, evidence given by a witness who is dead or cannot be found is relevant for proving the facts only when the opposite party had been given the opportunity to cross-examine the said witness.
Observations of the Court:
The court observed that since both the material prosecution witnesses- prosecutrix and PW-3 could not be cross-examined, therefore, their incomplete statements in the absence of cross-examination could not be treated as legal evidence and nor could it be relied upon to impose any liability upon the respondents.
The court further observed that it could not assume the guilt of the respondents in view of the absence of any explanation regarding the delay in lodging the FIR and the discrepancies in the statements of the prosecutrix and PW-3.
The decision of the Court:
The court dismissed the appeal and upheld the impugned judgment of the trial court.
Case Title: State of J&K v Davinder Kumar & Anr.
Coram: Hon’ble Mr. Justice Rajesh Sekhri
Case No.: CRAA No. 189/2014
Advocate for the Applicant: Mr. Pawan Dev Singh
Advocate for the Respondent: Mr. Gagan Oswal
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