STATE OF ORISSA Vs. NARAYAN CHANDRA NAYAK

JUDGEMENT

(1.) In this application under Section 482, Cr.P.C. the petitioner State has assailed the order dated 20.8.2011 passed by the learned Additional Sessions Judge (FTC 1). Bhadrak in S.T. Case No. 76/149 of 2010 rejecting the prayer of the prosecution for displaying audio-video CDs. and cassettes containing the statements of the victim and some other prosecution witnesses recorded during their examination under Section 161, Cr.P.C, for the purpose of contradicting the said witnesses as they turned hostile to the prosecution.

(2.) The opposite party is facing trial in the aforesaid S.T. Case for commission of offence under Section 376 (2) (a) of the IPC and some other offences for allegedly raping a married woman. During trial, the prosecution examined 28 witnesses- including the victim and the IO out of 33 number of charge-sheet witnesses. As it appears, all the material witnesses for the prosecution including the victim did not support the prosecution case. A petition was filed on behalf of the prosecution before the Court below with the prayer that the audio-video cassettes containing the statements of the witnesses, which were produced in Court, may be displayed for the purpose of contradicting the witnesses in' accordance with the proviso to sub-section (1) of Section 162 of the Cr.P.C. The said petition was rejected by the impugned order on grounds inter alia that the victim (PW12) herself was cross-examined by the prosecution for not supporting the prosecution case and during such cross-examination she has denied that her statement under Section 161, Cr.P.C. was recorded through audio-video means. Similarly PWs 1,2 (Home guards of the PS), PWs 3, 4, 6 and 5 and 17 (constables of the PS), so also PW 20, the videographer and PW 2, the owner of the video shop, where PW20 allegedly worked in their cross-examination by the prosecution did not admit that videographing of examination of these witnesses by the IO under Section 161, Cr.P.C. was done. The further reason given by the Court below is that the Investigating Officer has not mentioned in the case diary that she issued any letter of request to Karim Khan (PW21), the proprietor of the video shop to record the statement of the witnesses by audio-video means, and further that there is nothing to show that the statements given by the witnesses during their examination by the IO under Section 161, Cr.P.C. were videographed. Although the case diary revealed that the IO seized some CDs and cassettes on production by the videographer Sk. Niyaz (PW20), there is nothing on record to show as to where and in whose custody they were kept after seizure and before their prosecution alongwith charge-sheet. It is also stated by the Court below that there is nothing on record to show that the seized CDs. and cassettes are original documents.

(3.) The learned Standing Counsel in assailing the impugned order submits that under the proviso to sub-section (3) of Section 161. Cr.P.C, the statement given by a witness during his examination by the IO can be recorded by audio-video electronic means and that there being no embargo under the proviso to sub-section (1) of Section 162, Cr.P.C, the prosecution can use such audio-video CD/cassettes by displaying them in order to contradict a hostile witness whose statement has been so recorded by audio-video means and, therefore, the Trial Court has gone wrong in rejecting the petition of the prosecution.