K.M. AZIZ Vs. T.C. KURIAN

JUDGEMENT

(1.) Revision petitioner is the second defendant in O. S.297 of 1987 of the Munsiff's Court, Kanjirappally. When the first defendant was recalled and examined his counsel sought to prove the deposition given by the second defendant in a criminal case. Its marking was objected to by the second defendant on the ground that it can be marked only for the purpose of contradiction under S.145 of the Evidence Act.

(2.) Contention of the revision petitioner is that the Court below grievously erred in marking the document ignoring the mandatory requirements under S.145 of the Evidence Act. S.145 enables the marking of a previous statement given by a witness when he is cross examined. As contemplated under S.145 the previous statement can be admitted in evidence after drawing the attention of the maker to it. If the previous statement is intended to contradict a witness due compliance of S.145 must be strictly observed,

(3.) The weight of authorities is that a witness or a party who appears as a witness should be given an opportunity to explain any previous statement which he had made and which is contrary to his present statement. It is essential that the Court should give an opportunity to the witness to explain the contradiction in his statement. Justice requires that the witness must be treated fairly and be afforded a reasonable opportunity of explaining the contradiction. The general rule is that the contents of a written document cannot be used until the document itself is proved. A departure from the general rule is provided under S.145. It envisages the procedure by which a witness may be contradicted in cross examination by confronting him with his previous statement in writing or reduced into writing. It is important to. bear in mind that the two contradictory statements must have been made by one and the same person. Statement made by one person cannot be contradicted by the statement of another under S.145.