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 an offence under section 376(2)(a) of the Indian Penal Code, 1860 and some other offences for allegedly raping a married woman.
- All the material witnesses for the prosecution including the victim did not support the case of the prosecution.
- A petition was filed on behalf of the prosecution before the Court with the prayer that the audio-video cassettes containing the statements of the witnesses which were produced in the 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 Code of Criminal Procedure, 1973.
Prominent Arguments by the Advocates
Advocate on behalf of the prosecution:
- The statement given by a witness during his examination by the I.O. can be recorded by audio-video electronic means and that 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 in order to contradict a hostile witness whose statement has been so recorded by audio-video means.
Advocate on behalf of the accused:
- The statements of the prosecution witnesses recorded in writing by the I.O. have already been confronted to the said witnesses by the prosecution while putting questions to them as they turned hostile to the prosecution and, therefore, there is no necessity of displaying the so-called audio-video C.Ds, and cassettes again for the purpose of contradicting the said witnesses and the genuineness of the seized audio-video C.D. and cassettes have not been proved.
Opinion of the Bench
- Justice B.K. Nayak:
As per Section 4 of the Information Technology Act, 2000, statement of witnesses recorded by the I.O. by audio-video means may be treated to be a statement which has been reduced into writing, fulfilling the requirement of the proviso to sub-section (1) of section 162 of the Code of Criminal Procedure, 1973.
- Before a witness can be contradicted with reference to his previous statement made before the investigating officer, the statement must be duly proved before it is used for the purpose of contradiction in the manner provided by Section 145 of the Indian Evidence Act, 1872. The words ‘if duly proved’ clearly show that the record of the statement cannot be admitted in evidence straightaway.
- The persons who are said to have video graphed the examination of the witnesses by the Investigating Officer have denied having done such video graphing. Therefore, the genuineness and authenticity of the C.D. and cassettes and the information recorded therein are in doubt.
- 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.
- The mere display of the C.D. and the cassettes will not satisfy the requirement ‘duly proved’.
- The Investigating Officer reduced the statement of the witnesses into writing during the course of his investigation and the witnesses have been cross-examined by the prosecution with reference to their statements recorded in writing by the I.O.
- Therefore, no further useful purpose will be served in displaying the C.D. and cassettes.
- The criminal case was dismissed.