Whether court witnesses or defence witnesses can be contradicted by reference to their police statement recorded U/S s 161 of CRPC?

  As regards the evidence of DW 1 it was wrong to have allowed him to be cross-examined by the prosecution with reference to the statement which he had given to the police. Under Section 162, Cr. PC only witnesses on behalf of the prosecution could be contradicted by reference to their statements made to the police, and not court witnesses or defence witnesses. 

Supreme Court of India

Mrs. Shakila Khader And Ors. vs Nausheer Cama And Ors. on 10 March, 1975

Equivalent citations: AIR 1975 SC 1324, (1975) 4 SCC 122, 1975 (7) UJ 393 SC

Author: A Alagiriswami

Bench: A Alagiriswami, N Untwalia

Read full Judgment here: Click here

Print Page

How to appreciate evidence of defence witness and court witness?

In this regard, it may also be noted that the Supreme Court in Dudh Nath Pandey v. State of Uttar Pradesh reported as (1981) 2 SCC 166, opined that Courts should avoid the error of attributing motives to defence witnesses merely because they are examined by the defence. Defence witnesses are entitled to equal treatment with those of the prosecution and Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. To a similar extent, in State of U.P. v. Babu Ram reported as (2000) 4 SCC 515, the Supreme Court has observed as under:

“23. Depositions of witnesses, whether they are examined on the prosecution side or defence side or as court witnesses, are oral evidence in the case and hence the scrutiny thereof shall be without any predilection or bias. No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses for which different yardsticks cannot be prescribed as for those different categories of witnesses.”

17. Later, in Munshi Prasad and Others v. State of Bihar reported as (2002) 1 SCC 351, the Supreme Court made the following observation on the appreciation of evidence of defence witnesses:

“3. …we wish to clarify that the evidence tendered by the defence witnesses cannot always be termed to be a tainted one by reason of the factum of the witnesses being examined by the defence. The defence witnesses are entitled to equal respect and treatment as that of the prosecution. The issue of credibility and trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution – a lapse on the part of the defence witnesses cannot be differentiated and be treated differently than that of the prosecutors’ witnesses.”

 IN THE HIGH COURT OF DELHI AT NEW DELHI

CORAM: HON’BLE MR. JUSTICE MANOJ KUMAR OHRI
CRL.A. 633/2020 

SONU v. THE STATE (GOVT. OF NCT), DELHI

Dated: 06.09.2021

Print Page

Whether court witness can be cross examined by any party to proceeding?

The object of Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by the court gives evidence against the complainant, he should be allowed an opportunity to cross-examine. The right to cross-examine a witness who is called by a court arises not under the provisions of Section 311, but under the Evidence Act which gives a party the right to cross-examine a witness who is not his own witness. Since a witness summoned by the court could not be termed a witness of any particular party, the court should give the right of cross- examination to the complainant. These aspects were highlighted in Jamatraj Kewalji Govani v. State of Maharashtra ( AIR 1968 SC 178).

Supreme Court of India

Rama Paswan & Ors vs State Of Jharkhand on 13 April, 2007

Bench: Dr. Arijit Pasayat, D.K. Jain

Print Page