prosecution witness called by defence in evidence.
Guest
(Querist) 02 February 2010
This query is : Resolved
thanks experts to resolving our queries.
sir,
If a prosecution witness whose name is in witness list but not appeared before court as a prosecution witness, after closing the prosecution evidence n after statements of accused under section 313 Cr.P.C. the defence council prodused him as a defence witness. After examination chief , whether the prosecution can contradict from his previous statements taken during investigation under section 161 Cr.P.C.
Raj Kumar Makkad
(Expert) 02 February 2010
why not. If examination in chief has been held then definitely in cross-examination prosecution shall have an opportunity to contradict him with his earlier statement recorded under section 161 Cr. P. C. If accused has taken this risk to call such witness then he must also be ready to face its consequences.
Sukhija
(Expert) 02 February 2010
I agree
Defence must have good reason to call him as its witness or now face the music.
Guest
(Querist) 03 February 2010
tahnks to all experts.... but sir with all due respect to evry one.... i also try to go deep in that problem.... i ve read section 140 of evidence act and also section 162 of code of criminal procedurethat read as follows
section 162 Cr.P.C.. Statements to police not to be signed: Use of statements in evidence.
(1) No statement made by any person to a police officer in the course of' an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of' his statement, if duly proved, may be used by the accused, and with the permission of' the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872) and when any part of' such statement is so used, any part thereof' may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any statement failing within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act.
Explanation. An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.
SECTION 145.Evidence Act, 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.
so sir, after read both the sections in the secong para of section 162 cr.p.c the words used are "when any witness called for the prosecution" that is very important reason is very clear that if a witness called for the prosecution then if turned hostile then its open for the prosecution to contradict from his previous statements as mentioned in section 145 evidence act. but in my querry the witness is not called by theprosecution , so prosecutor only cross examine that witness but no right to contardict fr his previous statements rcorded under section 161 cr.p.c. coz he is defence witness. Thanx
