S.145 Evidence Act | Attention Of Witness Must Be Drawn To Previous Statement If It Is To Be Used For Purpose Of Contradicting Him: P&H High Court

If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the Court cannot suo moto make use of statements to police not proved in compliance with Section 145 of the Evidence Act that is, by drawing attention to the parts intended for contradiction.

The bench comprising Justice Jasgurpreet Singh Puri held that after the eyewitnesses were declared hostile and during cross-examination their statements were read over and explained to the complainant and the eyewitness, but apart from that neither the relevant portion of the statement was pointed out nor was reproduced by the prosecution for the purpose of cross-examination. Thus, it was contended that the same stands in violation of the judgment of the Supreme Court in V.K. Mishra and another v. State of Uttarakhard and another.

A perusal of both the statements would show that after they were declared hostile and during cross-examination the statement Ex.PB was read over and explained to the complainant Bhim Sain and statement Mark-A was read over and explained to the eye witness Ramesh Kumar. However neither the relevant portion of the statement was pointed out nor the same was reproduced by the prosecution and, therefore, the same was in violation of the judgment of the Hon'ble Supreme Court in V.K. Mishra and another Versus State of Uttarakhard and another(Supra).

After relying on the law laid down by the Supreme Court in the case of V.K. Mishra and another Versus State of Uttarakhard and another, the court held that under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement which is reduced into writing, the attention of such witness must be called upon to those parts of the previous statement which are to be used for the purpose of contradicting him before the writing can be used.

Court in VK Mishra's case have held that if the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the Court cannot suo moto make use of statements to police not proved in compliance with Section 145 of the Evidence Act that is, by drawing attention to the parts intended for contradiction.

Court further relied on the judgement of Rohtash Kumar Versus State of Haryana [2013(4) SCC 434, wherein the Supreme Court has observed that evidence of a prosecution witness cannot be rejected in total, merely because the prosecution chose to treat him as hostile.

In another case of State of U.P. Versus Ramesh Prasad Misra and another [1997(1) RCR (Criminal) 55], the court has held that a portion of the evidence which is consistent with the either case of the prosecution, or that of defence, may be relied upon.

After giving the thoughtful consideration to the facts and circumstances of the present case, the court further held that since the entire case of the prosecution was rested upon the disclosure statements and statement made to the police, none of those statements were referred to at the time of cross-examination. Therefore, it cannot be said that merely because the two witnesses were declared hostile so they should not be relied upon.

Apart from the same since the entire case of the prosecution was rested upon the disclosure statements and statement made to the police, none of those statements were referred to at the time of cross-examination. Therefore, there is no ground or occasion to disbelieve the aforesaid two witnesses and it cannot be said that merely because they have been declared hostile that they should not be relied upon.

Court further added that recovery is admissible in evidence under Section 27 of the Indian Evidence Act but there is no reason or justification coming forward as to why the second Investigating Officer did not step into witness box.

Therefore, the court concluded that the prosecution had miserably failed to prove its case and acquitted both the appellants of the charges framed against them.

Case Title : Paramjeet @ Kala and Other v. State of Haryana 

Citation : 2022 LiveLaw (PH) 124

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