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Jasdeep Kaur Chadha v/s State (NCT of Delhi) & Others

    Criminal Appeal Nos. 1405-1406 of 2017 (@ Special Leave Petition (Criminal) Nos. 9558-9559 of 2016)

    Decided On, 14 August 2017

    At, Supreme Court of India


    For the Appellant: Tanmay Mehta, Sanjay Abbat, Gaurav Kejriwal, Ankit Agarwal, Sujit Keshri, Advocates. For the Respondents: Ajit K. Sinha, Sr. Advocate, P.K. Dey, P.K. Dey, Sunita Rani Singh, R.S. Jena, B. Krishna Prasad, Arvind Varma, Sr. Advocate, Manu Sharma, Gaurav Khanna, Ridhima Mandhar, Varun Tankha, Shah Rukh Hussain, Amitabh Sinha, Vaibhav Gulia, Rakhi Ray, Advocates.

Judgment Text

Leave granted. Heard learned counsel for the parties.

2. During the course of examination of a witness, the public prosecutor wanted to confront the witness with his previous statement. The said previous statement was subsequent to filing of the charge-sheet. On that ground the public prosecutor was not permitted to confront the witness with the said previous statement. Hence these appeals.

3. Learned counsel for the appellant submits that even in respect of a post charge-sheet statement, Section 145 of the Indian Evidence Act applies and a witness can be confronted with such statement. Learned counsel relies upon the judgment delivered by a Four-Judge Bench of this Court inTara Singh v. The State, AIR 1951 SC 441wherein it was observed:

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"I see no reason why Section 145, Evidence Act, should be excluded when Section 288 states that the previous statements are to be "subject to the provisions of the Indian Evidence Act." Section 145 falls fairly and squarely within the plain meaning of these words. More than that. This is a fair and proper provision and is in accord with the sense of fairplay to which Courts are accustomed. Even the learned Judges who take the first view consider for the most part that though it is not obligatory to confront a witness with his former statement when Section 288 is restorted to, it is always desirable that should be done if only for the reason that an omission to do so weakens the value of the testimony. I am of opinion that the matter is deeper than that, and giving effect to the plain meaning of the words "subject to the provisions of the Indian Evidence Act" as they stand, I hold that the evidence in the Committal Court cannot be used in the sessions Court unless the witness is confronted with his previous statement as required by Section 145 Evidence Act. Of course, the witness can be cross-examined about the previous statement and that cross-examination can be used to destroy his testimony in the Sessions Court. If that serves the purpose of the prosecution, then nothing more is required, but if the prosecution wishes to go further and use the previous testimony to the contrary as substantive evidence, then it must in my opinion, confront the witness with those parts of it which are to be used for the purpose of contradicting him. Then only can the matter be brought in as substantive evidence under Section 289. As two of the eye-witnesses were not confronted in the manner required by Section 145, their statements will have to be ruled out, and if that is done, the material on which the conviction is based is considerably weakened.4. Reliance is also placed upon the judgment of this Court inMohanlal Gangaram Gehani v. State of Maharashtra (1982) 1 SCC 700laying down as under:"13. It is obvious from a perusal of Section 145 that it applies only to cases where the same person makes two contradictory statements either in different proceedings or in two different stages of a proceeding. If the maker of a statement is sought to be contradicted, his attention should be drawn to his previous statement under Section 145. In other words, where the statement made by a person or witness is contradicted not by his own statement but by the statement of another prosecution witness, the question of the application of Section 145 does not arise. To illustrate, we might give an instance - suppose A, a prosecution witness, makes a particular statement regarding the part played by an accused but another witness B makes a statement which is in consistent with the statement made by A, in such a case Section 145 of the Evidence Act is not at all attracted. Indeed, if the interpretation placed by the High Court is accepted, then it will be extremely difficult for an accused or a party to rely on the inter se contradiction of various witnesses and every time when the contradiction is made, the previous witness would have to be recalled for the purpose of contradiction. This was neither the purport nor the object of Section 145 of the Evidence Act.14. For instance, in the instant case, if PW 11 had been examined under Section 164 of the Code of Criminal Procedure or before a committing court and made a particular statement which was contradictory to a statement made in the Sessions Court, then Section 145 would have applied if the accused wanted to rely on the contradiction. Such, however, is not the position because the evidence of PW 11 is not only consistent throughout but the earlier statement recorded by her can be taken to corroborate her. There was no question of contradicting the statement of PW 11 by her previous or subsequent statement. On the other hand, Dr. Heena was a prosecution witness whose statement that Shetty had named Tiny on the earliest occasion, was an admission by a prosecution witness which threw considerable doubt on the complicity of the appellant in the occurrence. If Shetty stated in his evidence that he named A-1 (Mohanlal) then that would be a statement which was contradictory to that of PW 11 and the question will be which of the two statements should be preferred. If Dr. Heena had made two inconsistent statements then only Section 145 would have applied."5. In the impugned judgment, the High Court has relied upon the judgment delivered by three Hon'ble Bench of this Court inState (NCT of Delhi) v. Mukesh (2014) 15 SCC 661holding that:"Having carefully considered the submissions made on behalf of the respective parties, we are inclined to hold that, from the scheme of the Code of Criminal Procedure and the Evidence Act, it appears that the investigation and the materials collected by the prosecution prior to the filing of the charge-sheet under Section 161 of the Code, are material for the purposes of Section 145 of the Evidence Act, 1872. The expression "previous statements made" used in Section 145 of the Evidence Act, cannot, in our view, be extended to include statements made by a witness, after the filing of the charge-sheet. In our view, Section 146 of the Evidence Act also does not contemplate such a situation and the intention behind the provisions of Section 146 appears to be to confront a witness with other questions, which are of general nature, which could shake his credibility and also be used to test his veracity. The aforesaid expression must, therefore, be confined to statements made by a witness before the police duration investigation and not thereafter".6. On bare perusal of Section 145 of the Indian Evidence Act, we find that the section does not put any limitation that the previous statement must be during investigation nor creates a bar to a statement subsequent to investigation being confronted to the witness if such statement is in writing and is relevant as per the said provision. The only requirement is the provision is that the statement should be in writing or should be reduced to writing and relevant to the matter in question.7. No doubt, the judgment of this Court inState (NCT of Delhi) v. Mukesh(supra) has expressed the view that the previous statement must be the statement made during investigation only but the said judgment is per incuriam. The view taken by the larger Bench of this Court inTara Singh v. The State(Supra) has not been referred to and thus, the law laid down by larger Bench continues to be the binding law.8. Accordingly, we are of the view that there was no bar to the previous statement being confronted to the witness even if such statement was made after investigation subject to the applicability of Section 145.9. Accordingly, we set aside the impugned order of the High Court and allow these appeals.10. Pending application(s), if any, shall also stand disposed of.

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