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2025 DIGILAW 1626 (KER)

Nikhildas Son of Dasan v. State of Kerala

2025-06-10

G.GIRISH

body2025
ORDER : G.GIRISH, J. The order dated 18.11.2023 of the Additional Sessions Court, Irinjalakuda, in CMP No.283/2023 in S.C.No.823/2021, disallowing the request of the accused Nos.2 & 5 in the said case to summon the Judicial First Class Magistrate concerned, who recorded the statement of PW3 under Section 164 of the Code of Criminal Procedure, 1973(in short, ‘Cr.PC’), is under challenge in this petition filed under Section 482 Cr.PC. 2. The aforesaid case relates to the murder of a lady, who was the aunt of PW3. PW3, the eyewitness to that incident, was aged only 15 years at the time of incident. At the time of investigation, his statement was recorded by the Judicial Magistrate concerned, under Section 164 Cr.PC. During the course of trial before the Sessions Court, PW3 gave evidence about the act of accused Nos.1 to 3 mounting physical assault upon the deceased by slashing her with a dagger, stabbing with knife and exploding hand grenade. He was cross-examined at length by the learned counsel for the accused. However, no contradictions were marked. At the time of defence evidence, the accused sought to examine the Magistrate who recorded the statement of PW3 under Section 164 Cr.PC. The above request was rejected by the learned Additional Sessions Judge, mainly for the reason that, in respect of the previous statements given by the above witness to the learned Magistrate, no contradictions were marked at the time of cross-examination of PW3. Another reason cited by the learned Additional Sessions Judge was that the improvements made during cross-examination of the witness cannot be portrayed as material omissions, and hence the examination of the learned Magistrate was not required for proving omissions amounting to contradictions. Aggrieved by the above rejection of the request of the accused for the examination of the Judicial First Class Magistrate, Kodungallur, as a defence witness, the petitioners/accused Nos.2 & 5 are before this Court with this petition. 3. Heard the learned counsel for the petitioners, Adv. Mr John S. Ralph, the learned Amicus Curiae and the learned Public Prosecutor representing the State of Kerala. 4. 3. Heard the learned counsel for the petitioners, Adv. Mr John S. Ralph, the learned Amicus Curiae and the learned Public Prosecutor representing the State of Kerala. 4. On going through Annexure-3 testimony of PW3 before the Additional Sessions Court and Annexure-2 statement given by PW3 under Section 164 Cr.PC to the learned Magistrate, it is seen that four contradictions on material aspects were brought out during cross-examination, but the learned counsel who conducted the cross-examination did not take any effort to get the relevant portions of the previous statements of the witness provisionally marked for the purpose of getting it proved through the judicial officer who recorded the previous statement of the witness. As regards omissions amounting to contradiction, it is seen that three instances of significant and relevant aspects pertaining to the previous statement given to the learned Magistrate were brought out during cross-examination of PW3. Therefore, the examination of the learned Magistrate before the Additional Sessions Court was inevitable for proving the above omissions in the prior statement of the witness. 5. In the guidelines formulated by the Hon’ble Apex Court in Criminal Trials Guidelines regarding Inadequacies and Deficiencies In Re v. State of Andhra Pradesh & Ors. [(2021) 10 SCC 598] , Clause 10 Sub-Clause (v) makes it clear that omnibus marking of the entire statement under Sections 161 & 164 Cr.PC shall not be done. Sub-clause (i) & (iv) of Clause 10 of the above guidelines make it clear that the relevant portion of the statements recorded under Section 164 Cr.PC used for contradicting the respective witness shall be extracted or indicated specifically with the opening and closing words of the relevant portions through distinct marking for the purpose of proving those portions by putting it to the person who recorded it. 6. Following the directions of the Hon’ble Apex Court in the aforesaid decision, Rule 56A has been incorporated in the Kerala Criminal Rules of Practice as per which Sub-Rule 10 says that the Rule relating to marking of contradictions out of the statements under Section 161 Cr.PC shall apply mutatis mutandis to the statements recorded under Section 164 Cr.PC as well, when such portions of prior statements are used for contradiction or corroboration. 7. 7. Explanation to Section 162 Cr.PC says that an omission to state a fact or circumstance in the statement referred to Sub-Section (1) of Section 162 Cr.PC 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 contradiction in the particular context shall be a question of fact. In the case of such omissions, which appears to be significant and otherwise relevant in the context in which such omission occurs, the requirement to extract the relevant portion and to assign distinct marking, is not possible since the issue relates to the failure of the witness to give such statements to the authority concerned on a prior occasion. Those new aspects which the witness stated while being examined before the court during trial, and which the witness had omitted to state in his previous statement, could be brought out only through the examination of the person who recorded the prior statement of the witness. The concept of omission amounting to contradiction as envisaged under the Explanation to Section 162 Cr.PC has been elucidated in a clear and consistent manner by the Hon’ble Apex Court in Alauddin v. State of Assam [2024 KHC 6260] wherein it has been held in paragraph No.7 of the judgment as follows: “7. When the two statements cannot stand together, they become contradictory statements. When a witness makes a statement in his evidence before the Court which is inconsistent with what he has stated in his statement recorded by the Police, there is a contradiction. When a prosecution witness whose statement under S.161(1) or S.164 of CrPC has been recorded states factual aspects before the Court which he has not stated in his prior statement recorded under S.161 (1) or S.164 of CrPC, it is said that there is an omission. There will be an omission if the witness has omitted to state a fact in his statement recorded by the Police, which he states before the Court in his evidence. The explanation to S.162 CrPC indicates that an omission may amount to a contradiction when it is significant and relevant. Thus, every omission is not a contradiction. It becomes a contradiction provided it satisfies the test laid down in the explanation under S.162. The explanation to S.162 CrPC indicates that an omission may amount to a contradiction when it is significant and relevant. Thus, every omission is not a contradiction. It becomes a contradiction provided it satisfies the test laid down in the explanation under S.162. Therefore, when an omission becomes a contradiction, the procedure provided in the proviso to sub-Section (1) of S.162 must be followed for contradicting witnesses in the cross - examination.” 8. Thus, the law is trite that when there is an omission which becomes a contradiction, the procedure provided under the proviso to Section 162 Cr.PC has to be followed for contradicting the witness in cross-examination, and such contradiction could be brought on record only by the examination of the person who recorded the prior statement of the witness. That being the position, the denial of opportunity to the petitioner to prove the contradiction by the examination of the learned Magistrate who recorded the statement of PW3 under Section 164 Cr.PC, would amount to travesty of justice. In that view of the matter, the prayer in this petition to quash Annexure-1 order insofar as it relates to the rejection of request of the petitioner to examine the learned Magistrate, has to be allowed. In the result, the petition stands allowed as follows: (i) Annexure-1 order passed by the Additional Sessions Court, Irinjalakuda, in CMP No.283/2023 in S.C.No.823/2021, stands quashed to the limited extent wherein it disallowed the request of the petitioner to summon and examine the Magistrate who recorded the statement of PW3 under Section 164 Cr.PC. (ii)The learned Additional Sessions Judge is directed to pass the necessary orders for the examination of the learned Magistrate who recorded the prior statement of PW3 under Section 164 Cr.PC., as requested by the petitioner in C.M.P.No.283/2023. This Court places on record its appreciation of the assistance rendered by the learned Amicus Curiae Adv. Mr John S. Ralph in addressing the various legal aspects on this matter.