STATE AND ANOTHER Vs. BABU AND OTHERS

JUDGEMENT

(1.) AS trial in a murder case was in progress, the defence counsel sought permission to use a statement recorded by police in another case for cross examining one of the prosecution witnesses Learned Sessions Judge granted permission to do so. Legality of the said order is now challenged here. Facts necessary for the limited question raised here are the following. Police registered a case in respect of death of one Muraleedharan and after completion of investigation laid charge sheet against four persons as accused for the offence of murder. Government appointed a Special Public Prosecutor to conduct prosecution in the case. In the Sessions Court some witnesses were examined for the prosecution. Defence counsel, at a particular stage of the trial, brought to the notice of the learned Sessions Judge that the same police had registered another case in respect of another incident which happened later on the same night and investigation has been conducted by the police into that later incident. At the request of the defence counsel, the file relating to the latter case was brought down to the Sessions Court. Defence counsel then moved an application for permitting him to further cross - examine one of the witnesses who was already examined) with reference to the statement recorded by the investigating officer in connection with the second incident. Special Public Prosecutor opposed it, but learned Sessions Judge overruled the objections and granted permission to further cross - examine the witness with reference to the said statement.

(2.) LEARNED Sessions Judge in the impugned order has said : "I have no doubt that the statement of P. W. 5 given under Section 161 Cr. P. C. to the police officer in another crime can be used for contradicting him in cross - examination. The learned Special Public Prosecutor has not succeeded in canvassing a contrary view".

(3.) LEARNED counsel relied on the decision of the Supreme Court in Gajendra Singh v. State ( : AIR 1975 S.C. 1703 in which Fazl Ali, J. has observed that the statement recorded by an investigating officer in a "cross -case" is absolutely inadmissible because it was a statement made under Sec. 161 of the Code during investigation of the cross -case which was not at all admissible in the present case". I don't think that the said observation is of any use for resolving the present dispute. The said observation was made by the Supreme Court when the counsel, during arguments in the Supreme Court, used the statement of a particular witness recorded by the investigating officer in a cross -case Fazl Ali, J. pointed out that without confronting the witness with the statement it could not be used at all. A reading of paragraph 10 of the judgment would unmistakably show that what the Supreme Court said was totally different form what the learned counsel tried to emphasise now.