Contradicting the witness
Guest
(Querist) 20 January 2012
This query is : Resolved
I neglected to bring an important contradiction of a witness on record in accordance with the provision of S.145of Evidence Act.
The witness is discharged.
Do I have any remedy without recalling the witness?
Do I have the remedy at least to bring the previous statement of the witness on record through a corroborating witness even if it does not amount to contradiction?
Devajyoti Barman
(Expert) 20 January 2012
Yes, you have the option to recall the witness but the problem is while recalling the witness you have to spell out the reasons of your recalling and possibly the questions need to be put before the court to determine whether you would be recalled or not.
Guest
(Querist) 20 January 2012
Thanks Devajyoti & JSDN
Advocate. Arunagiri
(Expert) 20 January 2012
You need not prove the contradiction by recalling the witness. You can highlight the contradictory statements of the witness in arguments.
Ravikant Soni
(Expert) 20 January 2012
Dear Author,
You have and remedy not in form of contradiction but to challenge the veracity of witness.
You can prove the previous statement in defense under section 155 of Evidence act provided the previous statements not recorded under 161 of Cr.p.c. Because 162 crpc contamplates that the statment taken under 161 can only be used as the manner discribed in 145 evi. So this condition may prohibit you but previous statements are taken under some other section then you could use the provision of 155(3)evidence.
Guest
(Querist) 21 January 2012
I am very much greatful to Mr. Ravikant Soni. I am very much convinced by your answer. Previous statement is contained in FIR as such there is no bar of s.162. I have raised this doubt because I have read in a judgment that even to use 155(3) attention of the witness who made the statement has to be drawn to the sentance. The judgment went on to say that 155(3) is controlled by 145. Perhaps if I were to use it as a contradiction then the judgment might be applicable. But if I were to use the previous statement to impeach the evidence tendered at the trial then non compliance with s 145 may not be fatal as suggested by Mr. Soni - Thanks
Guest
(Querist) 21 January 2012
Arunagiri sir - to highlight it in the arguement the previous statement has to be brought on record of the trial. The question was how to bring the previous statement on record after the witness having been discharged.
M/s. Y-not legal services
(Expert) 21 January 2012
file a copy application for the deposition.. then you can highlighted it.. no need to produce it to judge., because the original deposition will be there only..
you can get unofficial copy.., but cant to refer it in court hall..
-tom-
Raj Kumar Makkad
(Expert) 21 January 2012
Nothing left to be added in the thoughtful advice of the experts.
Guest
(Querist) 21 January 2012
Raj ji - Your expert advise is needed. There is contradiction in the opinions. - One set of experts opinion witness has to be recalled. Soni ji says without recall of the witness objective can partially be achieved with which I am in the circumstance inclined to agree.
Soni ji's view rectify the negligence to some extent
whereas recall would be putting the clock back put will cure the negligence totally.
Which of the contradictory opinion would you agree to?
prabhakar singh
(Expert) 21 January 2012
Circumstantially Mr.Soni has provided you a fit solution.You are right in thinking that recall shall totally cure your negligence.
Now it is a time of your applying choice.
Guest
(Querist) 21 January 2012
Thank you prabhakar ji
DEFENSE ADVOCATE.-firmaction@g
(Expert) 21 January 2012
LINA RAMUK, it seems that you know your predictment better.You have to recall no other remedy.
The basic feature of our legal system is that it does not work like a computer , if you want your point of view to be accepted you have to press it loud and clear again and again and again and again.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 21 January 2012
45. Cross-examination as to previous statements in writing -
1145. Cross-examination as to previous statements in writing.- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matter in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
COMMENTS
Effect of contradiction
Two statements sought to be contradicted in addition should be drawn to previous
statement; Mohanlal Ganga Ram Gehani v. State of Maharashtra, AIR 1982 SC 839.
If a contradiction is put to witness and it is denied by him even then it will not amount putting contradiction to witness; Shaik Subhani v. State of Andhra Pradesh, 2000 Cr LJ 321 (AP).
DEFENSE ADVOCATE.-firmaction@g
(Expert) 21 January 2012
55. Impeaching credit of witness -
The credit of a witness may be impeached in the following ways by the adverse party, or with the consent of the Court, by the party who calls him:—
(1) By the evidence of persons who testify that they, from their knowledge of the witness believe him to be unworthy of credit;
(2) By proof that the witness has been bribed, or has 1[accepted] the offer of a bribe, or has received any other corrupt inducement to give his evidence;
(3) By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;
2[***]
Explanation
A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence.
Illustrations
(a) A sues B for the price of goods sold and delivered to B.
C says that he delivered the goods to B.
Evidence is offered to show that, on a previous occasion, he said that he had not delivered the goods to B.
The evidence is admissible.
(b) A is indicted for the murder of B.
C says the B, when dying, declared that A had given B the wound of which he died.
Evidence is offered to show that, on a previous occasion, C said that the wound was not given by A or in his presence.
The evidence is admissible.
------------------------
Raj Kumar Makkad
(Expert) 21 January 2012
Such witness should be re-called for deriving contradictions in his both statements in the given discussion but Two statements sought to be contradicted in addition should be drawn to previous statement.
Mohanlal Ganga Ram Gehani v. State of Maharashtra, AIR 1982 SC 839.
If a contradiction is put to witness and it is denied by him even then it will not amount putting contradiction to witness.
Shaik Subhani v. State of Andhra Pradesh, 2000 Cr LJ 321 (AP).
Guest
(Querist) 22 January 2012
Thanks Raj ji
V R SHROFF
(Expert) 22 January 2012
LINA, you received very good advise, to recall witness. and detailed provisions by Shri JSDN & ors.
I appreciate our team to help Advocates. , especially Jr.
I thanks JSDN
Lina,
Best of Luck.
venkatesh Rao
(Expert) 22 January 2012
The contradictions must be brought to record by confronting the portions to the witness in the box. you should recall the witness. Arguing about the contradiction without its confrontation to the very witness (not to other witness later) will not be entertained by the court. Make an application with affidavit u/s 311 Cr.P.C. and convince the court.
Dr V. Nageswara Rao
(Expert) 23 January 2012
1. A witness can be challenged and contradicted only by bringing on record his prior statement and confronting him with that.
2. After the witness is discharged and you did not confront him in the witness box by showing his prior statement, merely bringing on record the prior statment through some other witness will not at all help, as the Court will ask you why the witness was not confronted and given a chance to explain the contradiction. It will be unfair to the witness and the Court will not countenace that.
3. So, you have to seek the permission of the Court to recall the witness by you or the Court has to call the witness as Court witness under S. 165 of Evidence Act which is difficult.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 23 January 2012
Yes Mr Shroff and Mr Rao instead of I agree and I also agree replies valued inputs add depth to knowledge.
I specifically thank those who bring such queries which bring gray areas of legal system to this platform for in depth discussions.
Guest
(Querist) 23 January 2012
This is a rape case where prosecutrix had stated to the police that accused removed his pant and nicker and caught hold of her two hands with one hand of accused and with another hand of the accused removed her salwar and nicker.
In the trial she states that accused has only opened his zip. Secondly she says accused has removed her salwar upto her knee.
Now the above contradictions was brought on record by drawing the attention of the prosecutrix.
Now the issue is that the prosecutric had stated to the police that after the intercourse accused put on his dress and asked the prosecutrix to put on her dress. Only this statement to the police was not brought on record through oversight.
If her attention is drawn to the statement she may say that she has not stated so to the police which is most likely because if she admits the circumstance of accused dressing up and asking her to dress up contradicts her evidence at the trial as mentioned above which is her salwar was removed only up to her knee and that accused has only opened her zip.
And if she says she has stated so to the police then it is a circumstance which negates her story at the trial and therefore she is unlikely to say so.
Thus I need only the statement of police officer who recorded her FIR where she has stated that he had removed her salwar and nicker as well as his own pant and knicker. Police officer who has recorded the FIR will have to say she has stated so as he has recorded the same in FIR.
It is in the above circumstance I have raised the query of the need to recall because I need only the statement made by her to the police to be brought on record and it is immaterial whatever is her answer because this statement of her to police in either case disproves her case at the trial.
Shonee Kapoor
(Expert) 31 January 2012
Much has already been said.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
