The right of an accused to cross-examine a witness
Under Evidence Act
Section 145 of the Evidence Act provides:-
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.
A perusal of this Section shows that this Section permits the cross-examination of the witness in any trial, with reference to his previous statement, to establish a contradiction and the manner in which such contradictions can be established.
Section 155 of the Evidence Act provides that the previous statement of a witness can be made use of during the cross-examination of that witness for the purpose of impeaching the credit of the witness.
Thus, it is seen it is the right of a party in a trial to use the previous statements of a witness either for the purpose of establishing a contradiction in his evidence or for the purpose of impeaching the credit of the witness. This right given to a party in a trial under Section 145 of the Evidence Act is somewhat controlled in criminal trials by the provisions made in the Criminal Procedure Code.
Under Criminal Procedure Code
Section 161 of the Code provides that the police officer investigating a case is entitled to examine any person and reduce the statement of such person in writing.
This statement recorded by a police officer under Section 161 even though is a previous statement for the purpose of Section 145 of the Evidence Act, such statement can be used for the purpose of establishing a contradiction or impeaching the credit of the witness only in the manner provided for in Section 162 of the Code.
The use of the previous statement recorded under section 161 of the Code is controlled by Section 162 of the Code. The proviso which actually controls the use of Section 162 of the Code reads thus:-
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872; and when any part of such statement is so used, any part thereof may also be used in the re- examination of such witness, but for the purpose only of explaining any matter referred to in his cross- examination.
Therefore, it is seen even in a criminal trial the previous statement of a witness can be used by the accused for the limited purpose mentioned in Section 162 of the Code as provided for in Section 145 of the Evidence Act.
Object of Section 162
The object of enacting Section 162 is noticed by Supreme Court in the case of Tasildar Singh and Anr. Vs. State of U.P. (AIR 1959 SC 1012) wherein it was held thus:
“It is, therefore, seen that the object of the legislature throughout has been to exclude the statement of a witness made before the police during the investigation from being made use of at the trial for any purpose, and the amendments made from time to time were only intended to make clear the said object and to dispel the cloud cast on such intention.
The Act of 1808 for the first time introduced an exception enabling the said statement reduced to writing to be used for impeaching the credit of the witness in the manner provided by the Evidence Act.
As the phraseology of the exception lent scope to defeat the purpose of the legislature, by the Amendment Act of 1923, the section was redrafted defining the limits to confine it only to contradict the witness in the manner provided under section 145 of the Evidence Act. If one could guess the intention of the legislature in framing the section in the manner it did in 1923, it would be apparent that it was to protect the accused against the user of the statements of witnesses made before the police during investigation at the trial presumably on the assumption that the said statements were not made under circumstances inspiring confidence.
Both the section and the proviso intended to serve primarily the same purpose i.e., the interest of the accused.
Therefore, on a reading of Section 162 of the Code bearing in mind the object of the said Section and Section 145 of the Evidence Act, it is clear that an accused in a criminal trial has the right to make use of the previous statements of a witness including the statements recorded by the investigating agency during the course of an investigation for the purpose of establishing a contradiction in the evidence of a witness or to discredit the witness.
How the accused confronts the previous statement made by a witness
The question then arises how the accused confronts the previous statement made by a witness in the course of an investigation to establish the contradiction in the evidence given by the witness in the trial. So far as the statements made during the course of investigation of the case being tried is concerned, there is no difficulty because an accused is entitled under Section 207 of the Code for the supply of free copies of the documents referred to in the said Section which includes the previous statement recorded under sub-section (3) of Section 161 of the Code.
Use of statement made in another case
The accused does not have such a right as a matter of course in regard to other previous statements; more so, in regard to the statements recorded by the investigating agency under Section 161 in a case other than the one that is being tried by the court.
State Of Kerala vs Babu & Ors (1999)