The following query was raised by R.Sivasubramaniam in Expert page. As I am not registered on the said page, I cannot reply their. Hence I am reproducing the same in the Forum page and my answer for the benefit of Mr.Subramaniam and others. If my answer is not correct, I am open to correction by other members
A prosecution witness has made a statement to the police in which he has stated that 'he is the neighbour of the accused'. Later, during his deposition before the Magistrate, he has stated that 'he has seen the accused first time during the incident'. As he has made two contradictory statements what is the next course of action available to the Defence Lawyer? (Cross-examination is pending).
What the prosecution witness had stated to the police is not evidence.The said statement can only be used for the purpose of contradiction, in view of s.162 Cr.p.C.How the witness has to be contradicted has been laid down in s.145 of evidence act.As per the said section you will have to ask the following questions in cross examination:-
Q. I put it to you that you are actually the neighbor of the accused and that it is not correct to say that you haveseen the accused for the first time during the incident as you have deposed today?
The Witness may answer:- What I have stated during the deposition is correct.
Q. If that be so, why is your statement to the police silent as to you having seen the accused for the first time during the incident ?
The witness may answer:- I have stated so the police
Q. Did the police examine you?
Q. Did you state before the police, “youhave seen the accused first time during the incident” (use the exact words used by the witness during the deposition)
The witness may answer :- yes
Leave it at that.There after when IO appears as witness ask him the following questions:-
Q. Did you examine the witness no.____?
Ans:- Yes I examined him
Q. Did the witness state to you that “he hadseen the accused for the first time during the incident” (use the exact words used by the witness during the deposition)
A. No, He did not state to me.
(This is how contradiction has to be proved) If you do not do so then contradiction will not be proved.
Similarly omission in evidence existence in statement to the police can be proved as follows:-
Ask witness :- is it correct to suggest that police recorded your statement.
Q. Is it not correct to suggest that you had stated to police that you arethe neighbor of the accused?
Ans:- No I did not state so to the police
Q. Attention of the witness is to be drawn to portion marked A in the statement dated______.
Witness:- I did not state to this effect to the police. If the witness states that he stated so to the police then the statement is proved nothing further is to be done.
However if states that he did not state so cross examine IO when he appears
Q. Did the witness state as per the portion marked A in the statement of the PW no.
Ans: Yes he stated so.
This is how it is proved. Thereafter the portion marked A is given exhibit number.
You teach in short how to contradict the statement of the witness. Thank u.
(Advocate and Arbitrator Formerly Civil Judge)
27 November 2009
Anil, it is better to go back still further and check on basis of facts and circumstances of the case, which of the two versions, namely "neighbour" and "seen at the incident" helps the accused; then decide whether at all the witness needs to be confronted on that aspect..it may be left as it is and may simply be taken up with the Investigation Officer and be highlighted during oral or written arguments.
Bharath you are right it is an issue to be decided by the advocate of the accused. From the limited facts narrated I have assumed that the deposition during the trial is fatal and therefore explained the procedure for contradiction. It may be noted that the evidence is I have seen the accused for the first time during the "incident" and not that I have seen the accused for the first time during the trial. Therefore I have assumed the evidence to be fatal as the witness seems to be an eye witness to the incident, and if that be so, then the witness needs to be contradicted in the manner answered. If the evidence as such is not fatal then as you say it may be left as it is in which case taking up with the IO is not relevant.
The developments in the evidence of the witness are nothing but omisssions. whatever the witness states in his evidence and develops the case as against 162 Cr.P.C that omissions should put to the witness and the same is to be confronted with the Investigating officer. Then only that omission has a probative value since the statement is recorded under 162 cr.p.c by him. In case of contradiction also the same is put to the witness and it will be confront with the I.O. Contradictions can be marked on behalf of the defense but not omission. But it is well settled law that some material omission amounts to contradiction.