Cross-Examination as to previous statements in writing Sec. 145

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 contradicting 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.

That portion of the statement recorded under Section 161 which is proposed to be used for the contradicting the witness should first of all be brought to his notice and he should be questioned about it.

For example let us take a case where an accused person is being prosecuted for causing grievous hurt to X with an axe.

If X whose evidence is recorded in the Court stated in the course of his evidence that the accused struck him with the axe in such a way that the metallic head of the axe came into contact with his arm causing a fracture, and if in the course of the investigation he had stated that the accused had beat him with the handle namely the stick portion of the axe, then X should first of all be asked whether he had stated before the Investigating Officer that he was beaten by the accused with the stick portion of the axe.

The exact passage occurring in his statement under Section 161 should be read out and put to the witness whether the witness admits or denies having made such a statement before the Investigating Officer, the exact statement which was read out to the witness should be incorporated verbatim in the deposition within inverted commas.

If the witness admits having made that statement there is no need to give it a separate exhibit number and no further proof of that statement is required. If on the other hand the witness denies having made such a statement, then exhibit number “D” series should be given to that passage and that passage should be accordingly marked in the case diary statement supplied to the Court.

Thereupon, it should be mentioned in the deposition itself within brackets that exhibit D.l or D.2 as the case may be, is the relevant passage from the statement of the witness recorded under Section 161 Cr.P.C.

By this process the statement is merely brought on record. But it is yet to be proved. When the Investigating Officer who recorded the statement is examined in the Court the passage marked for purpose of contradiction namely exhibit D.l and D.2 as the case may be, should be read out to him and he should be asked if the witness had stated as mentioned in that exhibit.

It is only when the Investigating Officer answers in the affirmative that the Exhibit can be deemed to have been properly proved. This is how positive statements made by witnesses under Section 161 are proved.

Sometimes the witnesses might not have mentioned an important circumstance in the course of his evidence recorded before the Court. Such material omissions also fall within the category of contradictions and they too have to be proved.

For example in the case mentioned above if X had stated before the Court that he was beaten by the accused with the axe not only on the arm but also on the leg and if he did not mention to the Investigating Officer in his statement under Section 161, that the accused beat him with the axe on the leg, it is a material omission amounting to contradiction.

In the first place the witness should be asked whether he had mentioned to the Investigating Officer who recorded his statement under Section 161 that he was beaten by accused with the axe on the leg.

If the witness admits that he did not state so, no further proof of the omission is necessary. If on the other hand he asserts that he had stated that fact to the Investigation Officer, that should be so recorded in the deposition of the witness.

When the Investigating Officer is examined in the Court later on he should be asked if the witness has stated before him that he was beaten by the accused with the axe on the leg.

Naturally, the Investigating Officer would answer in the negative. It is only then that the omission can be deemed to have been proved. This is how case diary statements should be used for contradicting the witnesses.

Even when a prosecution witness turns hostile the same procedure should be followed by the prosecutor when he contradicts the witness with his earlier statements under Section 161 Cr.P.C. But, the difference is that in such a case the exhibit will be numbered in the “P” series, instead of “D” series.

Sometimes, this procedure is not followed but the relevant passage is marked in the case diary statement and an exhibit number is assigned to it and the witness is merely questioned “Did you state before the police as per Ex. D.l?” His answer that he did not state before the police as per Ex. D.l is recorded. Subsequently when the Investigation Officer is examined in the Court, he is asked whether the witness had stated as per Ex.

D.l in the course of investigation and his answer in the affirmative is recorded. If this method is adopted the Court will be put to the necessity of referring once again to the original statements under Section 161.

If on the other hand the procedure mentioned above is adopted the actual statement used for the purpose of contradiction forms an integral part of the deposition of the witness and there will not be any need for the Court to refer to the original statement under Section 161 Cr.P.C.

Hence, it is desirable to follow only the earlier procedure mentioned above in preference to the latter method.

The statement under Section 161 may be used as a piece of substantive evidence only when the witness dies and the statement can be brought within the purview of one of the several clauses contained in Section 32 of the Evidence Act.

In the case of murder or death due to accident the Investigating Officer holds inquest over the dead body under Section 174. Let use? amine Section 174 of Cr.P.C. ¹

The purpose of the inquest is only to find out whether the death was homicidal or suicidal or accidental. The purpose of the inquest is not to establish the guilt of any person. Only the substance of the statements made by witnesses in the course of the inquest is incorporated in some of the columns of the inquest report.

Even where the statements of each witness are not separately mentioned but the substance of what all the witnesses stated would in general terms be mentioned. Hence it is not possible to contradict witnesses examined in the Court with the contents of the inquest report relating to the statements said to have been made by them in the course of the inquest.

Section 41 deals with the powers of police officer to effect an arrest without a warrant from a Magistrate and it also enumerates the circumstances under which such an arrest can be made.

Section 56 and 57 lay down that the arrested person should be produced before the Magistrate within 24 hours after arrest if he is not granted bail. The question of granting bail as already mentioned, arises only in bailable offences. It is generally not possible to complete the investigation within 24 hours.

Hence the Investigating Officer produces the arrested person before the Magistrate competent to try the case or the nearest Magistrate with a remand report requesting that the accused may be remanded to judicial custody so that further investigation may be carried on.

Along with the remand report he should also forward copies of the case diary so as to enable the Magistrate to satisfy himself that the accusation levelled against the arrested person is well founded and that it is necessary to remand him to custody to enable the investigation to be completed.

The custody to which the accused is remanded is judicial custody. Judicial custody is where the accused is lodged in a sub-jail, District Jail or Central Prison, which has no police control. Police custody is handing over the accused to police, and police may keep the accused in the lock-up cell of the Police Station during the period of Police Custody.

Further extension of remand can also be granted on the specific request of the Investigation Officer but subject to two limitations namely (1) on each occasion the period of remand shall not exceed fifteen days and (2) in the case of offence punishable with death, imprisonment for life and imprisonment for ten years or more the total period of remand shall not exceed ninety days, whereas in the case of other offences the total period of remand shall not exceed sixty days.

Sometimes in the theft cases the police may require the assistance of the arrested person himself, in order to trace the stolen properly. In such cases the Investigating Officer requests the Magistrate to hand over the accused to police custody for a few days so that with the help of the accused the stolen property etc. may be traced and recovered. The

Magistrate may in his discretion grant remand to police custody under Section 167 (3) for a few days after recording his reasons to do so. If the Investigation is not completed and no charge-sheet is laid before the expiry of the remand period, the Court has no option except to set the prisoner free.