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Synopsis

The Supreme Court has on October 30, 2023 said that a statement given to police under Section 161 of the Criminal Procedure Code can be used to contradict a witness but such contradictions cannot result in totally discrediting an injured eyewitness.

A bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia said that the statement given to police during investigation under Section 161 cannot be read as an “evidence” as it has a limited applicability in a Court of Law as prescribed under Section 162 of the Code of Criminal Procedure.

"No doubt statement given before police during investigation under Section 161 are “previous statements” under Section 145 of the Evidence Act and therefore can be used to cross examine a witness. But this is only for a limited purpose, to “contradict” such a witness. Even if the defence is successful in contradicting a witness, it would not always mean that the contradiction in her two statements would result in totally discrediting this witness," the bench said.

The bench set aside a Rajasthan High Court's judgment which had acquitted seven accused of the charges of murder and attempt to murder, finding contradictions between statements given by one Rami, who herself was injured during the attack.

"The fact that the incident happened is not in doubt. The offenders were the accused is also not in doubt. There is no doubt that the incident took place, which resulted in one death and grievous injuries to another. It may not have happened exactly as narrated by PW-2, yet for this discrepancy the entire testimony of PW-2 cannot be discarded," the bench said.

In the case, the bench noted that the high court found a discrepancy in the statement of PW-2 (Rami) made under section 161 CrPC and her examination-in-chief, which it believed to be sufficient to discredit this witness. 

"It is here that we feel that the learned judges of the High Court have gone wrong," the bench said.

"The social background and the overall surrounding circumstances of the case are important considerations for the court while examining a witness, which has not been done," the bench added. 

The court pointed out that PW-2 was an injured witness and wife of the deceased, who had given her clear and unambiguous statement in her examination-in-chief and though she was cross-examined at length this witness stood her ground. 

"Moreover, it is her husband who has been killed by the assailants. Why should she be accusing wrong persons," the bench asked.

Holding that Section 145 read with Section 155 of the Evidence Act, has to be carefully applied in a given case, the bench said that some discrepancies invariably occur in such cases. "...when we take into account the fact that this witness is a woman who resides in a village and is the wife of a farmer who tills his land and raises crops by his own hands," the bench added.  

"In other words, they are not big farmers. The rural setting, the degree of articulation of such a witness in a Court of Law are relevant considerations while evaluating the credibility of such a witness. Moreover, the lengthy cross examination of a witness may invariably result in contradictions. But these contradictions are not always sufficient to discredit a witness," the bench said.

The top court further picked holes in the judgment by the high court, saying that it had magnified simple, doubtful and totally unexplained injuries of the accused and had belittled the brutal and murderous attack on PW-2 and her deceased husband, and most importantly expressed serious doubt on the testimony of an injured witness, i.e., PW-2. 

"This approach of the High Court in our considered opinion was not correct. The High Court has gone wrong in its appreciation of the case, both on facts as well as on law. The statement of an injured eye-witness is an important piece of evidence which cannot be easily discarded by a Court. Minor discrepancies do not matter," the court said.

The court, however, said that the possibility of the incident not being premeditated, could not be totally disregarded, considering the overall ‘circumstances’ of the case.

"We are inclined to grant a limited benefit to the accused but not like the one given by the High Court. We are of the opinion that this case is of culpable homicide not amounting to murder," the bench said.

The court handed down sentence of seven years of rigorous imprisonment to all the accused under Section 304 Part I of the IPC and three years' terms under Section 308 of the IPC. 

Case Title: Birbal Nath Vs State of Rajasthan