Del HC | Accused allowed to confront witness with reference to answer given by him in cross-examination; Law on S. 145 Evidence Act and Ss. 161 & 162 CrPC restated

Delhi High Court: Brijesh Sethi, J., allowed a criminal writ petition filed under Article 226 of the Constitution read with Section 482 CrPC wherein the petitioner-accused had prayed that he be allowed to confront the Prosecution Witness — Constable Ajit Singh — with his statement recorded under Section 161 CrPC with reference to the answer given by him in his cross-examination: i.e., “diary entry was recorded of my departure from police station on that day. I had instructed the DD Writer to record the entry of my departure. I do not know if the IO has seized the said diary entry.”

The trial court had declined such permission to the petitioner stating that this was a fact that had come across in answer to a question put in the cross-examination and was not a fact deposed to by the witness in his examination-in-chief and, therefore, cannot be confronted as an improvement.

Akshay Bhandari and Digvijay Singh, Advocates, represented the petitioner. Per contra, Sanjay Lao, ASC, with Karan Jeet Rai Sharma, Advocate, opposed the petition on behalf of the State.

Considering the rival submissions, the High Court observed 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 the 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 these circumstances, 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 such circumstances and in the interest of justice, the Court allowed the petition and directed the trial court to permit the petitioner to confront the witness concerned as prayed for. [Deepak Kumar Chaudhary v. State, 2019 SCC OnLine Del 11321, decided on 07-11-2019]

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