Previous statement has to be confronted to the witness- in accordance with section 145 of IEA- Delhi

DEEPAK KUMAR CHAUDHARY VS. STATE, W.P.(CRL) 3124/2019 and  CRL.M.A. 39841/2019- November 07, 2019

The Honorable Justice Brijesh Sethi of Delhi High Court pronounced the judgment arises out of the petition made under Article 226 of the Constitution of India read with Section 482 CrPC.

The issue considered by the Honorable High Court is whether the petitioner shall be allowed to confront the witness whose statement recorded under Section 161 of CrPC is contradicting the statement made in the cross-examination?

The learned counsel for the petitioner contended that the trial denied his request to confront the prosecution witness and learned trial court observed that;

“At this stage, Ld. Defence Counsel seeks to confront the witness of the portion recorded in the cross-examination pertaining to diary entry with his statement u/s 161 Cr.P.C.  This is a fact that has come across in answer to a question put in the cross-examination and is not a fact deposed to by the witness in his examination-in-chief and therefore, cannot be confronted as an improvement.”

The learned counsel for the petitioner argued before the High Court that the law is well settled under section 145 of the Indian Evidence Act that if a witness is to be contradicted with his previous statement, the attention of the said witness must be drawn to those parts of the writing intended to contradict him.  The law is further well settled that even an omission to mention a fact in the previous statement is a contradiction and needs to be confronted with the witness.  As per section 162 Code of Criminal Procedure, a previous statement recorded under section 161 Code of Criminal Procedure has to be confronted to the witness in accordance with section 145 of the Indian Evidence Act.

However, the learned ASC has opposed the petition and submitted that there is no infirmity in the order passed by learned ASJ.

The Hon’ble High Court stated that;

As per section 145 of the Indian Evidence Act, a witness can be contradicted with his previous statement. It is also a settled law that omission to mention the fact in the previous statement is contradiction and witness needs to be confronted with the said facts.  Section 162 of the Code of Criminal Procedure contemplates that previous statement recorded 161 Code of Criminal Procedure has to be confronted to the witness in accordance with Section 145 of the Indian Evidence Act.

In the present case, therefore, the court held that if the petitioner is not allowed to confront the witness with his previous statement, prejudice will be caused to him and he will not be able to take advantage of the said contradiction. In these circumstances, in the interest of justice, the petition is allowed and trial court is directed to allow the petitioner to confront the witness.

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– Srutha R Elayidom

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