State of Orissa v. Narayan Chandra Nayak
(2013) 121 AIC 431
In the High Court of Orissa
Cr. M.C. No. 3812 of 2011
Before Justice B.K. Nayak
Decided on August 01, 2012

Relevancy of the case: Using audio-video cassettes containing recorded witness statements for cross-examination

Statutes & Provisions Involved

• The Information Technology Act, 2000 (Section 4, 79A)
• The Indian Penal Code, 1860 (Section 376)
• The Code of Criminal Procedure, 1973 (Section161, 162, 482)
• The Indian Evidence Act, 1872 (Section 45A, 145)

Relevant Facts of the Case

• The present trial deals with the commission of certain offences related to the alleged raping a married woman.
• All the material witnesses for the prosecution including the victim did not support the case of the prosecution.
• The prosecution filed a petition before the Court praying for the production of the audio-video cassettes containing witness statements. This was to serve as evidence for the purpose of contradicting the witnesses in accordance with the proviso to sub-section (1) of Section 162 of the Code of Criminal Procedure, 1973.

 Prominent Arguments by the Advocates

• The prosecutor submitted the statement given by a witness during his examination by the I.O. can be recorded by audio-video electronic means. Moreover, there being no embargo under the proviso to sub-section (1) of section 162 of the Code of Criminal Procedure, 1973, the prosecution can use such audio-video C.D./cassettes by displaying them. Such display can even contradict a hostile witness whose statement has been so recorded by audio-video means.
• The petitioner’s counsel submitted that the I.O. recorded the prosecution witnesses’ statements in writing where they turned hostile towards to prosecution. Hence, it is unnecessary to display the so-called audio-video C.Ds, and cassettes again for the purpose of contradicting the said witnesses.  Moreover, the prosecution has not proven the genuineness of the seized audio-video C.D. and cassettes.

Opinion of the Bench

• The bench noted that through Section 4 of the Information Technology Act, 2000, statement of witnesses recorded by the I.O. by audio-video can be in writing, fulfilling the requirement of the proviso to sub-section (1) of section 162 of the Code of Criminal Procedure, 1973.
• Furthermore, it observed that in order to contradict a witness, the statement has to be duly proved. The words ‘if duly proved’ clearly show that the record of the statement is not admissible straightaway.
• Moreover, the persons who allegedly videographed the examination of the witnesses by the Investigating Officer denied having done such videographing. Therefore, there’s doubt clouding the genuineness and authenticity of the C.D. and cassettes and the information recorded therein.
• The investigating agency has not taken recourse to the provision of Section 45A of the Indian Evidence Act, 1872 to get the C.D. and cassettes examined by any examiner of electronic evidence as referred to in Section 79A of the Information Technology Act, 2000.
• Lastly, the bench noted that the Investigating Officer reduced the statement of the witnesses into writing during the course of his investigation. Furthermore, the prosecution has already cross-examined the witnesses with reference to their statements recorded in writing by the I.O. Hence, The CDs and cassettes serve no purpose.

Final Decision

• The bench thus,  dismissed the case.