Himachal Pradesh High Court
Sh. Kamal Parkash And Another vs State Of Himachal Pradesh on 11 August, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No. 117 of 2015 .
Judgment reserved on 7.8.2015.
Date of decision: 11.8.2015 Sh. Kamal Parkash and another ...Petitioners Versus State of Himachal Pradesh. ...Respondent of Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1Yes.
rt For the Petitioners: Mr.Suneet Goel, Advocate.
For the Respondent: Mr.V.K. Verma and Ms. Meenakshi
Sharma, Additional Advocate
Generals.
Tarlok Singh Chauhan J.
This Criminal Revision Petition has been preferred against the order passed by the learned Judicial Magistrate, Ist Class, Nahan on 24.3.2015, whereby he dismissed the application preferred by the petitioners under Section 146 of the Indian Evidence Act, 1872 (for short "Act").
2. The petitioners are accused of having committed offence under Sections 354 A read with Section 34 of the Indian Penal Code. The Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 18:44:17 :::HCHP 2 petitioners after pleading innocence are facing trial. During the course of proceedings, petitioners filed an application under Section 146 of the Act .
for summoning case files from various Courts as enumerated under paras I (1) to (10) of the application in order to test the veracity of the prosecutrix by confronting her with the records so as to shake her credibility and position in life. This according to the petitioners had been necessitated as of there was long standing civil and criminal litigations initiated by petitioner No. 1 against the prosecutrix and had prompted her to falsely implicate him in the instant criminal case.
rt
3. The learned trial Magistrate vide order dated 24.3.2015 dismissed the application on the ground that the documents with which the witness is to be confronted can be done by placing on record certified copies of the record, which as per provisions of Section 76 of the Act are per se admissible.
4. The other ground for rejection of the application was that under Section 105 of the Act, the defence had an opportunity to bring its case within the provisions of general exceptions or proviso of the relevant sections, with which he is charged and thereby it could be inferred that the record could be summoned by the defence counsel when opportunity is granted after recording the statement under Section 313 Cr.P.C to lead evidence.
::: Downloaded on - 15/04/2017 18:44:17 :::HCHP 35. Lastly, it was observed that Section 146 of the Act, although deals with shaking of credibility of witness and is subjected to .
cross-examination, but the confrontation can be with regard to the previous writings or statements given by the witness, which are already on record, as recorded under Section 161 Cr.P.C and filed along with the final report (challan) by the police.
of I have heard learned counsel for the parties and have gone through the records of the case.
6. Section 146 of the Indian Evidence Act reads thus:-
rt "Section 146- Questions lawful in cross-examination When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend-
(1) to test his veracity.
(2) to discover who he is and what is his position in life, or
(3) to shake his credit, by injuring his character, although the
answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture."
7. Indisputably, the object of cross-examination is to obtain from the witness admissions favourable to the other party on whose behalf the cross-examination is directed or to discredit the witness. Cross-
examination, is therefore, most effective of all the means for extracting truth and exposing falsehood. It is the duty of the Court to consider the entire evidence of the witness brought on record in examination-in-chief, ::: Downloaded on - 15/04/2017 18:44:17 :::HCHP 4 cross-examination and re-examination. Matter of cross-examination is not a mere empty formality, but one is required to put his own case in cross-
.
examination, otherwise the version of the witness has to be taken as unchallenged. It is the duty to put one's own version to open end in cross-
examination, otherwise the deposition of the witness cannot be discredited.
8. It is more than settled that credibility of a witness depends of upon:
(i) his knowledge of facts to which he satisfies;
(ii) his integrity;
rt
(iii) his disinterestedness;
(iv) his veracity; and
(v) his being bound to speak the truth on oath or on affirmation or declaration.
9. Adverting to the facts, it would be seen that in the application filed under Section 146 of the Act, the petitioners have sought judicial record from the various Courts for the purpose of cross-
examination/confronting the complaint with her earlier version and to test her veracity. Obviously, this could not have been done by leading evidence in defence, as has been observed by the learned trial Magistrate.
Moreover, in case the complainant was not confronted with these documents, then her testimony would go totally unchallenged.
::: Downloaded on - 15/04/2017 18:44:17 :::HCHP 510. The learned trial Magistrate appears to be under an mistaken impression that the petitioners had only sought to place on record .
the certified copies of the record, which according to it was per se admissible under Section 76 of the Act, little realizing that the record sought to be summoned by the petitioners was in fact for the purpose of confronting the complainant by cross-examining her in order to test her of veracity and shake her credibility.
11. In Rajinder Pershad Vs. Darshana Devi (2001) 7 SCC 69, the Hon'ble Supreme Court has held that in order to dispute rt correctness of statement of a witness, opportunity must be given to him in cross-examination to explain his statement by drawing his attention to that part of it, which is objected to as untrue.
12. Similar observations were made by Hon'ble Supreme Court in Laxmibai (dead) through LRs and another Vs. Bhagwantbuva (dead) through LRS and another (2013) 4 SCC 97 and it is apt to reproduce the observations made in para 40, which reads thus:-
"40. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence ::: Downloaded on - 15/04/2017 18:44:17 :::HCHP 6 Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination-in-chief, and the scope of this provision stands .
enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him is not fit to be of believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and rt proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (See Khem Chand Vs. State of H.P. 1994 Supp (1) SCC 7, State of U.P. Vs. Nahar Singh (1998) 3 SCC 561, Rajinder Pershad Vs. Darshana Devi (2001) 7 SCC 69 and Sunil Kumar Vs. State of Rajasthan (2005) 9 SCC 283.)"
13. In view of the aforesaid proposition of law, there can be no denial of the fact that the petitioners had every right to summon the records as it was then alone that the petitioners could have confronted the prosecutrix in order to test her veracity and shake credibility of her statement. The mere fact that the official record was admissible under Section 76 of the Act was of no avail, as the record which the petitioners had sought to confront the prosecutrix would not speak for itself.
14. Having said so, I find merit in this petition. Accordingly, Revision Petition is allowed and the order passed by learned Magistrate on 24.3.2015 in case No. 91/4 of 2014 titled State of Himachal Pradesh Vs. ::: Downloaded on - 15/04/2017 18:44:17 :::HCHP 7 Sh. Kamal Parkash etc. is quashed and set aside, consequently the application filed by the petitioners under Section 146 of the Act is allowed.
.
The parties are directed to appear before the trial Magistrate on 20.8.2015.
(Tarlok Singh Chauhan), Judge.
11th August, 2015 (KRS) of rt ::: Downloaded on - 15/04/2017 18:44:17 :::HCHP