STATE OF KERALA Vs. BABU

JUDGEMENT

(1.) In a pending Sessions Case, on behalf of the accused persons, applications were made to summon the case diary of a case registered as Cr. No. 81/91 for confronting a witness with his previous statement as found in the said case diary and to recall the said PW-5. The learned Sessions Judge allowed the said applications which came to be challenged in criminal petitions filed before the High Court of Kerala by the State as well as the brother of the deceased. These petitions came to be dismissed by an Order of the High Court dated 17th August, 1993. Both, the Sessions Court and the High Court held that there is no bar in law to summon the case diary of a case even other than the one which is being tried, for the purpose of contradicting the evidence of the prosecution witnesses. In this appeal by special leave, the State of Kerala has raised the following questions of law:

(2.) It is contended on behalf of the appellant that the case diary sought to be summoned being a case diary not of the case which is being tried in the Sessions trial under Section 172 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'), it is impermissible for the Court to summon the case diary nor the statements recorded therein could be permitted to be used for contradicting a witness who is being examined in a trial arising out of a totally different case.

(3.) On behalf of the respondents, it is contended that any prior statement of a witness can be used for the purpose of contradicting a witness as provided for in Section 162 of the Code and Section 145 of the Evidence Act. It was contended that in view of the fact that those provisions having been enacted for the benefit of the accused, a liberal construction should be given to the provisions of Section 172 of the Code. Reliance was placed upon a judgment of the High Court of Calcutta rendered in the case of Ahmed Mia v. Emperor, AIR 1944 Cal 243 and of this Court in Khatri v. State of Bihar, (1981) 2 SCC 493 . The brief facts necessary to appreciate the contentions of the parties in this appeal are as follows: In the course of trial of Sessions Case No. 157/92, on the file of the Sessions Judge at Thrissur, it was noticed by the defence that on the very day of the incident which was subject-matter of the Sessions Case, there was another crime registered in Cr. No. 81/91 and in that during the course of investigation, a statement of the witness who is being examined in the Sessions Case as PW-5, was recorded under Section 161 of the Code which, the defence has contended, contradicts the statement made by PW-5 in the course of the Sessions trial. Therefore, for the purpose of establishing the contradiction in the evidence of PW-5 and in order to impeach the said witness, the defence wanted the case diary in Crime No. 81/91 to be summoned with a consequential prayer for recalling PW-5. This prayer to summon the case diary of Crime No. 81/91, having been allowed, the above controversy has arisen primarily based on the language of Section 172 of the Code.