Qasim Ali and Others vs State of U.P.

K.N. Ojha, J.—Instant revision has been filed against the order dated 13.6.2001, passed by the Xth Additional Sessions Judge, Meerut in Sessions Trial No. 1537 of 1997, State v. Abu Hasan and others Sessions Trial No. 1537 of 1997, under Sections 302, 307, 394 and 411, I.P.C., police station Baraut, district Meerut, by which the learned Additional Sessions Judge has rejected the prayer of the revisionists for putting questions to P.W. 6 Shaukin to contradict his statement with the facts mentioned in the affidavit alleged to have been filed by him during investigation.

Heard Sri. M. Islam, learned Counsel for the revisionist and Sri Shekhar Yadav, learned A.G.A. and have gone through the record.

It is not disputed to the parties that Sessions Trial No. 1537 of 1997, State v. Abu Hasan and others Sessions Trial No. 1537 of 1997, is pending under abovementioned sections in the Court of the Xth Additional Sessions Judge, Meerut, in which statement of five prosecution witnesses were recorded. When examination of P.W. 6 Shaukin was being recorded and the witness was being cross-examined by the learned Counsel for the accused a prayer was made by the revisionist that the accused wanted to confront P.W. 6 Shaukin, who had filed an affidavit before the Investigating Officer during investigation, in respect of the contents mentioned in the affidavit.

A perusal of the impugned order dated 13.6.2001, passed by the learned Additional Sessions Judge shows that the affidavit was not on the record of the case and, therefore, cross-examination on the affidavit could not be allowed unless it was made a part of the record. The defence evidence is adduced only when the prosecution evidence is closed and statement of accused is recorded u/s 313, Cr. P.C. There is no stage prior to it when the accused persons have to file papers in their defence. Therefore, if the accused persons wanted to contradict the statement with his previous statement, the only course open was to move application and to file papers before the Court so that the accused could be permitted to cross-examine the witness in respect of the contents in the paper. In this case, when application was moved by the accused and copy of the affidavit was produced before the Court, no prejudice would have caused to the prosecution in case the accused revisionists would have been allowed to cross-examine the P.W. 6 in respect of the contents of the affidavit said to have been filed during investigation.

Section 145 of the Indian Evidence Act contemplates that a witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters 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.

Thus, Section 145 of the Indian Evidence Act does not make it mandatory that contradiction be made in respect of only that document which has been filed by the prosecution or which has been filed by the accused prior to such cross-examination. This section contemplates that a witness may be cross-examined with his previous statement, if any, such previous statement may be in the nature of F.I.R. or statement recorded u/s 161, Cr. P.C. or affidavit filed during investigation or statement of such witness is recorded in some other criminal case or civil case. Thus, any statement or anything reduced in writing of the witness earlier is the subject-matter with which the witness can be confronted in cross-examination with the copy of the affidavit, which was being produced before the Court and it was being specifically alleged by the learned Counsel for the defence that this affidavit was filed by the witness during investigation. In this case u/s 302, I.P.C. it was legal if the accused would have been permitted to cross-examine P.W. 6 Shaukin with the contents of the alleged affidavit. Thus, the impugned order passed by the Additional Sessions Judge is not in conformity with the provisions of Section 145 of the Indian Evidence Act. Therefore, the revision deserves to be allowed.

The revision is allowed and the order dated 13.6.2001, passed by the learned Xth Additional Sessions Judge, Meerut, in Sessions Trial No. 1537 of 1997 is set aside. The application moved by the revisionists before the learned Additional Sessions Judge is allowed. The learned Additional Sessions Judge will permit the revisionist to make cross-examination in respect of the contents of the affidavit, which is said to have been filed by P.W. 7 Shaukin during the investigation.