Kamal Kumar v. Whether approved for reporting?1 No

Station, where FIR (Ext.PW3/A) was registered. SI Jagpal Singh (PW13) sent the informant to the hospital for her medical examination with an application (Ext.PW1/A). Dr Geeta Gupta (PW1) examined the informant and found that sexual intercourse had taken place. She issued the MLC (Ext.PW1/B). SI Jagpal Singh (PW13) investigated the matter. He visited the spot and prepared the site plan (Ext.PW13/A). He visited the forest, where the victim identified the place. Memo (Ext.PW3/C) and 4 site plan (Ext.PW13/B) were prepared. The victim identified the house and the room where she was kept. The lock (Ext.P1) was broken and was taken into possession vide memo (Ext.PW5/A). SI Jagpal Singh (PW13) seized the bed sheet and the towel vide memo (Ext.PW3/D). These were put in a parcel, and the parcel was sealed with seal “A”. Seal impression (Ext.PW13/D) was taken on a separate piece of cloth. Site plan (Ext.PW13/E) was prepared.

The photographs (Ext.PW13/F1 to Ext.PW13/F6) were taken. ASI Satvir Singh (PW14) conducted the further investigation. He arrested accused Arun Kumar and filed an application (Ext.PW2/A) for his medical examination. Dr. B.K. Sadana (PW2) examined the accused Arun Kumar and found that there was nothing to suggest that he was incapable of performing sexual intercourse. He issued a report (Ext.PW2/A). Arun Kumar identified the place from where the victim was taken away. Memo (Ext.PW5/B) was prepared. He also identified the place where the victim was kept in the forest. Memo (Ext.PW5/D) was prepared. ASI Satvir Singh (PW14) took the photographs (Ext.PW14/A1 to Ext.PW14/A4). Accused Kamal Kumar identified the place from where the victim was taken and where she was kept in the forest. Memos (Ext.PW5/E and 5 Ext.PW5/F) were also prepared. Kamal Kumar also identified the house and the room where the victim was kept.

Memo (Ext.PW5/G) was prepared. The motorcycle bearing registration No. HP-12C-7664 along with the documents was seized vide memo (Ext.PW7/A). The accused Kamal produced the key (Ext.P6) to the lock, which was seized vide memo (Ext.PW7/A). The key was put in a cloth parcel, and the parcel was sealed with seal “A”. Specimen seal impression (Ext.PW14/P) was taken on a separate piece of cloth. Accused Roop Lal identified the place where the victim was kept in the forest. Memo (Ext.PW5/H) was prepared. Roop Lal also identified the house and the room where the victim was taken. Memo (Ext.PW5/J) was prepared. An application (Ext.PW6/A) was filed for obtaining the victim's birth certificate. Chet Ram (PW6) issued the certificates (Ext.PW6/B and Ext.PW6/C) vide letter (Ext.PW6/D). As per the certificate, the victim was born on 26.06.1994. The case property was sent to the FSL, and the report (Ext.PW1/C) was issued, mentioning that semen was detected in the pants of Arun Kumar and in the vaginal slide, vaginal swab and salwar of the victim. The statements of witnesses were recorded as per their version and, after the completion of investigation, the challan was 6 prepared and presented before the Judicial Magistrate First Class-II, Nalagarh, who committed the case to learned Sessions Judge, Solan, H.P. (learned Trial Court).

The learned Trial Court charged the accused Arun Kumar with the commission of offences punishable under Sections 342, 363, 366 and 376 read with Section 34 of IPC. The learned Trial Court also charged the accused Kamal Kumar and accused Roop Lal @ Sunny for the commission of offences punishable under Sections 342, 363 and 366 read with Section 34 of the IPC, to which they pleaded not guilty and claimed to be tried.

The prosecution examined 14 witnesses to prove its case. Dr Geeta Gupta (PW1) examined the informant/victim. Dr. B.K. Sadana (PW3) examined the accused Arun Kumar. Informant (PW3) narrated the incident. The informant's parents (PW4 and PW5) narrated the circumstances in which the victim was found missing. Chet Ram (PW6) and Naresh Kumar (PW8) produced the informant’s birth certificate. Jagdish Chand (PW7) witnessed the recovery. HC Sita Ram (PW9) was working as MHC, with whom the case property was deposited. HHC Sada 7 Ram (PW10) carried the case property to the FSL. Mehar Singh (PW11) searched for the victim. SI Jagpal Singh (PW13) and ASI Satvir Singh (PW14) investigated the matter.

Accused, in their statements recorded under Section 313 of the Code of Criminal Procedure (CrPC), denied the prosecution case in its entirety. They claimed that the prosecution's witnesses were interested and they had made false statements against them. They did not produce any evidence in their defence.

Learned Trial Court held that the informant's testimony was consistent and reliable. It was corroborated by the medical evidence and the recovery of various articles. There was nothing in the informant’s cross-examination to show that she was making a false statement. She was proved to be 16 years and 3 months of age at the time of the incident. She was taken out of the guardianship of her father without his consent. Hence, the learned Trial Court convicted and sentenced the accused Arun Kumar and Kamal Kumar.

As per the report submitted by the Superintendent, Modern Central Jail, Kanda, Arun Kumar has undergone the 8 imprisonment awarded to him and he was released from jail on the completion of the sentence.

Accused Kamal Kumar filed the present appeal, asserting that the learned Trial Court failed to properly appreciate the material on record. The prosecution evidence does not inspire confidence. As per the prosecution, the informant was taken forcibly on a motorcycle from a place where several shops were located. One has to cross many populated places to visit the place where she was kept in the forest. It is highly unbelievable that no one would have noticed the victim being taken on a motorcycle. The informant was not wearing the school uniform in the photographs placed on the record, which falsifies her version that she was forcibly taken from the school. Her bag was not produced by any person. There are various contradictions in the informant’s statement, which made her an unreliable witness. The circumstances on record show that the informant and Arun Kumar had intimacy. This fact is evident from the conduct of the informant's father, who had not reported the matter to the police even after discovering that the informant was missing from her home. The statements of prosecution witnesses did not inspire confidence, and the 9 learned Trial Court erred in relying upon the statements of the prosecution’s witnesses. Hence, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.

I have heard Mr N.S. Chandel, learned Senior Advocate, assisted by M/s Sidharth and Shwetima Dogra, learned counsel for the appellant/accused and Mr Jitender Sharma, learned Additional Advocate General for the respondent/State.

Mr N.S. Chandel, learned Senior Advocate for the appellant/accused, submitted that the learned Trial Court erred in convicting and sentencing the accused. The informant’s statement does not inspire confidence. As per her version, she was taken on a motorcycle in broad daylight from a public place. However, she had not raised any hue and cry, which falsifies her version. The evidence on record suggests that the informant and Arun Kumar had some intimacy and she had voluntarily accompanied Arun Kumar. There is no evidence that the accused Kamal Kumar is the owner of the house, where the informant claimed that she was bolted with Arun Kumar. The learned Trial 10 Court had imposed an excessive sentence. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.

Mr Jitender Sharma, learned Additional Advocate General for the respondent/State, submitted that Arun Kumar has already suffered the imprisonment awarded to him and the fact that Arun Kumar had kidnapped and raped the informant is not in challenge before this Court. The informant had specifically stated that her mouth was gagged and she could not raise any hue and cry. The offence of kidnapping is always against the guardians, and the consent of the victim is not material in these offences. Any intimacy between the victim and Arun Kumar will not absolve the accused of the commission of the crime. Hence, he prayed that the present appeal be dismissed.

I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

The informant (PW3) stated that she had gone to the school on 29.09.2010. She was going to her uncle’s shop during the half break. Arun Kumar and his friend Kamal were standing 11 near a bridge on a motorcycle. Both of them put a towel over her face and took her on a motorcycle to Theura forest. She was kept in the forest till evening. Sunny came to the forest during the evening, and all the accused took her to Village Sunna on the motorcycle. She was kept in a room with Arun Kumar, and the room was bolted from outside. Kamal and Arun left the place. Arun raped her 3-4 times during the night. She stated in her cross-examination that her school timings were from 09.00 a.m. till 03.00 p.m. She used to attend school in school uniform. She was wearing the school uniform on the date of the incident. She admitted that she was not wearing the school uniform in the photographs. She had attended the classes of English, Economics and Political Science on that day; however, she could not name the teachers who had taken those classes.

It was submitted that the informant’s testimony is not reliable because she has materially improved upon her previous version, and she was confronted with the FIR and the previous statement recorded by the police. This submission will not help the accused. SI Jagpal Singh (PW13) recorded the FIR (Ext.PW3/A) and the informant’s statement. He was not asked anything in his cross-examination regarding the improvements put to the victim. Therefore, the improvements/contradictions have not been proved. It was laid down by the Bombay High Court about a century ago in Emperor vs. Vithu Balu Kharat (1924) 26 Bom. L.R. 965, that the previous statement has to be proved before it can be used to contradict a witness. It was observed:

The words "if duly proved" in my opinion, clearly show that the record of the statement cannot be admitted in evidence straightaway but that the officer before whom the statement was made should ordinarily be examined as to any alleged statement or omitted statement that is relied upon by the accused for the purpose of contradicting the witness; and the provisions of Section 67 of the Indian Evidence Act apply to this case, as well as to any other similar ease. Of course, I do not mean to say that, if the particular police officer who recorded the 14 statement is not available, other means of proving the statement may not be availed of, e.g., evidence that the statement is in the handwriting of that particular officer.

It was laid down by the Hon’ble Supreme Court in Muthu Naicker and Others, etc. Versus State of T.N. (1978) 4 SCC 385, that if the witness affirms the previous statement, no proof is necessary, but if the witness denies or says that he did not remember the previous statement, the investigating officer should be asked about the same. It was observed: -

52. This is the most objectionable manner of using the police statement, and we must record our emphatic disapproval of the same. The question should have been framed in a manner to point out that, from amongst those accused mentioned in examination-in-chief, there were some whose names were not mentioned in the police statement and if the witness affirms this, no further proof is necessary and if the witness denies or says that she does not remember, the investigating officer should have been questioned about it.

The Gauhati High Court held in Md. Badaruddin Ahmed v. State of Assam, 1989 SCC OnLine Gau 35: 1989 Cri LJ 1876, that if the witness denies having made the statement, the portion marked by the defence should be put to the investigating officer and his version should be elicited regarding the same. It was observed at page 1880: - 15 “13. The learned defence counsel has drawn our attention to the above statement of the Investigating Officer and submits that P.W. 4 never made his above statement before the police and that the same, being his improved version, cannot be relied upon. With the utmost respect to the learned defence counsel, we are unable to accept his above contention. Because, unless the particular matter or point in the previous statement sought to be contradicted is placed before the witness for explanation, the previous statement cannot be used in evidence. In other words, drawing the attention of the witness to his previous statement sought to be contradicted and giving all opportunities to him for explanation are compulsory. If any authority is to be cited on this point, we may conveniently refer to the case of Pangi Jogi Naik v. State reported in AIR 1965 Orissa 205: (1965 (2) Cri LJ 661). Further, in the case of Tahsildar Singh v. State of U.P., reported in AIR 1959 SC 1012: (1959 Cri LJ 1231), it was also held that the statement not reduced to writing cannot be contradicted and, therefore, in order to show that the statement sought to be contradicted was recorded by the police, it should be marked and exhibited. However, in the case at hand, there is nothing on the record to show that the previous statement of the witness was placed before him and that the witness was given the chance for explanation. Again, his previous statement was not marked and exhibited. Therefore, his previous statement before the police cannot be used. Hence, his evidence that when he turned back, he saw the accused Badaruddin lowering the gun from his chest is to be taken as his correct version.

14. The learned defence counsel has attempted to persuade us not to rely on the evidence of this witness on the ground that his evidence before the trial Court is contradicted by his previous statement made before the police. However, in view of the decisions made in the said cases we have been persuaded irresistibly to hold that the correct procedure to be followed which would be in 16 conformity with S. 145 of the Evidence Act to contradict the evidence given by the prosecution witness at the trial with a statement made by him before the police during the investigation will be to draw the attention of the witness to that part of the contradictory statement which he made before the police, and questioned him whether he did, in fact, make that statement. If the witness admits having made the particular statement to the police, that admission will go into evidence and will be recorded as part of the evidence of the witness and can be relied on by the accused as establishing the contradiction. However, if, on the other hand, the witness denies to have made such a statement before the police, the particular portions of the statement recorded should be provisionally marked for identification as B-1 to B-1, B-2 to B-2 etc. (any identification mark) and when the investigating officer who had actually recorded the statements in question comes into the witness box, he should be questioned as to whether these particular statements had been made to him during the investigation by the particular witness, and obviously after refreshing his memory from the case diary the investigating officer would make his answer in the affirmative. The answer of the Investigating Officer would prove the statements B-1 to B-1, B-2 to B-2, which are then exhibited as Ext. D. 1, Ext. D. 2, etc. (exhibition mark) in the case and will go into evidence, and may, thereafter, be relied on by the accused as contradictions. In the case in hand, as was discussed in above, the above procedure was not followed while cross-examining the witness on his previous statements, and, therefore, we have no alternative but to accept the statement given by this witness before the trial Court that he saw the accused Badaruddin lowering the gun from his chest to be his correct version.”

Andhra Pradesh High Court held in Shaik Subhani v. State of A.P., 1999 SCC OnLine AP 413: (1999) 5 ALD 284: 2000 Cri LJ 321: (1999) 2 ALT (Cri) 208 that putting a suggestion to the 17 witness and the witness denying the same does not amount to putting the contradiction to the witness. The attention of the witness has to be drawn to the previous statement, and if he denies the same, the same is to be proved by the investigating officer. It was observed at page 290: -

24… As far as the contradictions put by the defence are concerned, we would like to say that the defence Counsel did not put the contradictions in the manner in which they ought to have been put. By putting suggestions to the witness and the witness denying the same will not amount to putting a contradiction to the witness. The contradiction has to be put to the witness as contemplated under Section 145 of the Evidence Act. If a contradiction is put to the witness and it is denied by him, then his attention has to be drawn to the statement made by such witness before the Police or any other previous statement and he must be given a reasonable opportunity to explain as to why such contradiction appears and he may give any answer if the statement made by him is shown to him and if he confronted with such a statement and thereafter the said contradiction must be proved through the Investigation Officer. Then, it only amounts to putting the contradiction to the witness and getting it proved through the Investigation Officer.

The Calcutta High Court took a similar view in Anjan Ganguly v. State of West Bengal, 2013 SCC OnLine Cal 22948: (2013) 2 Cal LJ 144 and held at page 151: - “21. It was held in State of Karnataka v. Bhaskar Kushali Kothakar, reported as (2004) 7 SCC 487, that if any statement of the witness is contrary to the previous statement recorded under Section 161, Cr.P.C. or suffers 18 from omission of certain material particulars, then the previous statement can be proved by examining the Investigating Officer who had recorded the same. Thus, there is no doubt that to prove the previous statement, the Investigating Officer ought to be examined, and the statement of the witness recorded by him can only be proved by him, and he has to depose to the extent that he had correctly recorded the statement, without adding or omitting, as to what was stated by the witness.

Proviso to Section 162(1), Cr.P.C. states in clear terms that the statement of the witness ought to be duly proved. The words, if duly proved, cast a duty upon the accused who wants to highlight the contradictions by confronting the witness to prove the previous statement of a witness through the police officer who has recorded the same in the ordinary way. If the witness in the cross-examination admits contradictions, then there is no need to prove the statement. But if the witness denies a contradiction and the police officer who had recorded the statement is called by the prosecution, the previous statement of the witness on this point may be proved by the police officer. In case the prosecution fails to call the police officer in a given situation, the Court can call this witness, or the accused can call the police officer to give evidence in defence. There is no doubt that unless the statement as per proviso to sub-section (1) of Section 162, Cr.P.C. is duly proved, the contradiction in terms of Section 145 of the Indian Evidence Act cannot be taken into consideration by the Court.

To elaborate on this further, it will be necessary to reproduce Section 145 of the Indian Evidence Act.

S. 145. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those 19 parts of it which are to be used for the purpose of contradicting him.

Therefore, it is appropriate that before the previous statement or statement under Section 161, Cr.P.C. is proved, the attention of the witness must be drawn to the portion in the statement recorded by the Investigating Officer to bring to light the contradiction, a process called confrontation.

Let us first understand what the proper procedure is. A witness may have stated in the statement under Section 161, Cr.P.C. that ‘X murdered Y’. In court, the witness states ‘Z murdered Y’. This is a contradiction. Defence Counsel or the Court, and even the prosecution if the witness is declared hostile, having resiled from a previous statement, is to be confronted to bring the contradiction on record. The attention of the witness must be drawn to the previous statement or statement under Section 161, Cr.P.C., where it was stated that ‘X murdered Y’. Since Section 145 of the Indian Evidence Act uses the word being proved, therefore, in the course of examination of the witness, a previous statement or a statement under Section 161, Cr.P.C. will not be exhibited but shall be assigned a mark, and the portion contradicted will be specified. The trial court, in the event of contradiction, has to record as under.

The attention of the witness has been drawn to portions A to A of the statement marked as 1, and confronted with the portion where it is recorded that ‘X murdered Y’. In this manner, by way of confrontation, contradiction is brought on record. Later, when the Investigating Officer is examined, the prosecution or defence may prove the statement after the Investigating Officer testifies that the statement assigned the mark was correctly recorded by him; at that stage, the statement will be exhibited by the Court. Then the contradiction will be proved by the Investigating Officer by stating that the witness had informed or told him that ‘X murdered Y’ and he had correctly recorded this fact. 20

Now, a reference to the explanation to Section 162, Cr.P.C., which says that an omission to state a fact or circumstance may amount to contradiction. Say, for instance, if a witness omits to state in Court that ‘X murdered Y’, what he had stated in a statement under Section 161, Cr.P.C., will be material? Contradiction, for the Public Prosecutor, as the witness has resiled from the previous statement, or if he has been sent for trial for the charge of murder, omission to state ‘X murdered Y’ will be a material omission, and amount to contradiction so far as the defence of ‘W is concerned. At that stage, the attention of the witness will also be drawn to a significant portion of the statement recorded under Section 161, Cr.P.C., which the witness had omitted to state, and note shall be given that the attention of the witness was drawn to the portion A to A wherein it is recorded that ‘X murdered Y’. In this way, the omission is brought on record. The rest of the procedure stated earlier, qua confrontation, shall be followed to prove the statement of the witness and the fact stated by the witness.

Therefore, to prove the statement for the purpose of contradiction, it is necessary that the contradiction or omission must be brought to the notice of the witness. His or her attention must be drawn to the portion of the previous statement (in the present case, statement under Section 161, Cr.P.C)”

A similar view was taken in Alauddin v. State of Assam, 2024 SCC OnLine SC 760, wherein it was observed: “7. When the two statements cannot stand together, they become contradictory statements. When a witness makes a statement in his evidence before the Court which is inconsistent with what he has stated in his statement recorded by the Police, there is a contradiction. When a prosecution witness whose statement under Section 161(1) or Section 164 of CrPC has been recorded states factual aspects before the Court which he has not stated 21 in his prior statement recorded under Section 161(1) or Section 164 of CrPC, it is said that there is an omission. There will be an omission if the witness has omitted to state a fact in his statement recorded by the Police, which he states before the Court in his evidence. The explanation to Section 162 CrPC indicates that an omission may amount to a contradiction when it is significant and relevant. Thus, every omission is not a contradiction. It becomes a contradiction provided it satisfies the test laid down in the explanation under Section 162. Therefore, when an omission becomes a contradiction, the procedure provided in the proviso to sub-Section (1) of Section 162 must be followed for contradicting witnesses in the cross-examination.

8. As stated in the proviso to sub-Section (1) of Section 162, the witness has to be contradicted in the manner provided under Section 145 of the Evidence Act. Section 145 reads thus:

145. Cross-examination as to previous statements in writing.—A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

The Section operates in two parts. The first part provides that a witness can be cross-examined as to his previous statements made in writing without such writing being shown to him. Thus, for example, a witness can be cross-examined by asking whether his prior statement exists.

The second part is regarding contradicting a witness. While confronting the witness with his prior statement to prove contradictions, the witness must be shown his prior statement. If there is a contradiction between the statement made by the witness before the Court and what is recorded in the statement 22 recorded by the police, the witness's attention must be drawn to specific parts of his prior statement, which are to be used to contradict him. Section 145 provides that the relevant part can be put to the witness without the writing being proved. However, the previous statement used to contradict witnesses must be proved subsequently. Only if the contradictory part of his previous statement is proved can the contradictions be said to be proved. The usual practice is to mark the portion or part shown to the witness of his prior statement produced on record. Marking is done differently in different States.

In some States, practice is to mark the beginning of the portion shown to the witness with an alphabet and the end by marking with the same alphabet. While recording the cross-examination, the Trial Court must record that a particular portion marked, for example, as AA was shown to the witness. Which part of the prior statement is shown to the witness for contradicting him has to be recorded in the cross- examination. If the witness admits to having made such a prior statement, that portion can be treated as proved. If the witness does not admit the portion of his prior statement with which he is confronted, it can be proved through the Investigating Officer by asking whether the witness made a statement that was shown to the witness. Therefore, if the witness is intended to be confronted with his prior statement reduced to writing, that particular part of the statement, even before it is proved, must be specifically shown to the witness.

After that, the part of the prior statement used to contradict the witness has to be proved. As indicated earlier, it can be treated as proved if the witness admits to having made such a statement, or it can be proved in the cross-examination of the concerned police officer. The object of this requirement in Section 145 of the Evidence Act, of confronting the witness by showing him the relevant part of his prior statement, is to give the witness a chance to explain the contradiction. Therefore, this is a rule of fairness. 23

9. If a former statement of the witness is inconsistent with any part of his evidence given before the Court, it can be used to impeach the credit of the witness in accordance with clause (3) of Section 155 of the Evidence Act, which reads thus:

155. Impeaching credit of the witness. — The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him— (1) ….…………………………………… (2) ……………………………………… (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.

It must be noted here that every contradiction or omission is not a ground to discredit the witness or to disbelieve his/her testimony. A minor or trifle omission or contradiction brought on record is not sufficient to disbelieve the witness's version. Only when there is a material contradiction or omission can the Court disbelieve the witness's version either fully or partially. What is a material contradiction or omission, depending upon the facts of each case? Whether an omission is a contradiction also depends on the facts of each case.

10. We are tempted to quote what is held in a landmark decision of this Court in the case of Tahsildar Singh v. State of U.P., 1959 Supp (2) SCR 875. Paragraph 13 of the said decision reads thus: “13. The learned counsel's first argument is based upon the words “in the manner provided by Section 145 of the Indian Evidence Act, 1872” found in Section 162 of the Code of Criminal Procedure. Section 145 of the Evidence Act, it is said, empowers the accused to put all relevant questions to a witness before his attention is called to those parts of the writing with a view to contradicting him. In support of this 24 contention, reliance is placed upon the judgment of this Court in Shyam Singh v. State of Punjab [(1952) 1 SCC 514: 1952 SCR 812]. Bose, J. describes the procedure to be followed to contradict a witness under Section 145 of the Evidence Act, thus at p. 819: Resort to Section 145 would only be necessary if the witness denies that he made the former statement.

In that event, it would be necessary to prove that he did, and if the former statement was reduced to writing, then Section 145 requires that his attention must be drawn to these parts which are to be used for contradiction. But that position does not arise when the witness admits the former statement. In such a case, all that is necessary is to look to the former statement of which no further proof is necessary because of the admission that it was made.” It is unnecessary to refer to other cases wherein a similar procedure is suggested for putting questions under Section 145 of the Indian Evidence Act, for the said decision of this Court and similar decisions were not considering the procedure in a case where the statement in writing was intended to be used for contradiction under Section 162 of the Code of Criminal Procedure. Section 145 of the Evidence Act is in two parts: the first part enables the accused to cross- examine a witness as to a previous statement made by him in writing or reduced to writing without such writing being shown to him; the second part deals with a situation where the cross-examination assumes the shape of contradiction: in other words, both parts deal with cross- examination; the first part with cross-examination other than by way of contradiction, and the second with cross- examination by way of contradiction only.

The procedure prescribed is that, if it is intended to contradict a witness by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to 25 Section 162 of the Code of Criminal Procedure only enables the accused to make use of such a statement to contradict a witness in the manner provided by Section 145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of Section 145 of the Evidence Act. Nor are we impressed by the argument that it would not be possible to invoke the second part of Section 145 of the Evidence Act without putting relevant questions under the first part thereof. The difficulty is more imaginary than real. The second part of Section 145 of the Evidence Act clearly indicates the simple procedure to be followed.

To illustrate: A says in the witness box that B stabbed C; before the police, he had stated that D stabbed C. His attention can be drawn to that part of the statement made before the police, which contradicts his statement in the witness box. If he admits his previous statement, no further proof is necessary; if he does not admit it, the practice generally followed is to admit it subject to proof by the police officer. On the other hand, the procedure suggested by the learned counsel may be illustrated thus: If the witness is asked, “Did you say before the police officer that you saw a gas light?” and he answers “yes”, then the statement which does not contain such recital is put to him as a contradiction. This procedure involves two fallacies: one is that it enables the accused to elicit, by a process of cross- examination, what the witness stated before the police officer. If a police officer did not make a record of a witness's statement, his entire statement could not be used for any purpose, whereas if a police officer recorded a few sentences, by this process of cross- examination, the witness's oral statement could be brought on record.

This procedure, therefore, contravenes the express provision of Section 162 of the Code. The second fallacy is that, by the illustration given by the learned counsel for the appellants, there is no self-contradiction of the primary statement 26 made in the witness box, for the witness has not yet made on the stand any assertion at all which can serve as the basis. The contradiction, under the section, should be between what a witness asserted in the witness box and what he stated before the police officer, and not between what he said he had stated before the police officer and what he actually said before him. In such a case, the question could not be put at all: only questions to contradict can be put, and the question here posed does not contradict; it leads to an answer which is contradicted by the police statement. This argument of the learned counsel based upon Section 145 of the Evidence Act is, therefore, not of any relevance in considering the express provisions of Section 162 of the Code of Criminal Procedure.” (emphasis added) This decision is a locus classicus, which will continue to guide our Trial Courts. In the facts of the case, the learned Trial Judge has not marked those parts of the witnesses' prior statements based on which they were sought to be contradicted in the cross-examination.”

Therefore, no advantage can be derived from the contradictions/omissions put to the informant/victim.

It was submitted that the informant's conduct of not raising hue and cry when she was being taken on the motorcycle towards the jungle and thereafter to Village Sunna, shows that she had voluntarily accompanied the accused Arun Kumar. The submission will not help the accused. The birth certificates (Ext.PW6/B and Ext.PW8/B) show that the victim was born on

26.06.1994. Therefore, she was proved to be less than 18 years of 27 age on the date of the incident and incapable of giving any consent.

Section 361 of the IPC defines kidnapping from lawful guardianship as under:

Kidnapping from lawful guardianship Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

23. It is apparent from the bare perusal of the section that the offence of kidnapping is committed against the guardian, and the minor’s consent is immaterial. It was laid down by the Hon’ble Supreme Court in Parkash v. State of Haryana, (2004) 1 SCC 339: 2004 SCC (Cri) 290: 2003 SCC OnLine SC 1339 that the offence of kidnapping is for the protection of the minor, and only the consent of the guardian can take it out of the purview of section 361. It was observed at page 342: “7. …The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the age specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words “takes 28 or entices any minor … out of the keeping of the lawful guardian of such minor” in Section 361 are significant. The use of the word “keeping” in the context connotes the idea of charge, protection, maintenance and control; further, the guardian's charge and control appear to be compatible with the independence of action and movement of the minor, the guardian's protection and control of the minor being available whenever necessity arises. On plain reading of this section, the consent of the minor who is taken or enticed is wholly immaterial; it is only the guardian's consent that takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person, which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian, would be sufficient to attract the section.

8. In State of Haryana v. Raja Ram [(1973) 1 SCC 544: 1973 SCC (Cri) 428], English decisions were noticed by this Court for the purpose of illustrating the scope of the protection of minor children and of the sacred right of the parents and guardians to the possession of their minor children under English law. The decisions noticed were R. v. Job Timmins [169 ER 1260: Bell 276], R. v. Handley [175 ER 890: 1 F & F 648] and R. v. Robb [176 ER 466: 4 F & F 59]. In the first case, Job Timmins was convicted of an indictment framed upon 9 Geo. IV, ch. 31, Section 20, for taking an unmarried girl under sixteen out of the possession of her father, and against his will. It was observed by Erle, C.J., that the statute was passed for the protection of parents and for preventing unmarried girls from being taken out of the possession of their parents against their will. Limiting the judgment to the facts of that case, it was said that no deception or forwardness on the part of the girl in such cases could prevent the person taking her away from being guilty of the offence in question. The second decision is authority for the view that in order to constitute an offence under 9 Geo. IV, ch. 29 31, Section 20, it is sufficient if, by moral force, a willingness on the part of the girl to go away with the prisoner is created; but if her going away with the prisoner is entirely voluntary, no offence is committed. The last case was of a conviction under the statute (24 & 25Vict., ch. 100, Section 55). The inducement by previous promise or persuasion was held sufficient to bring the case within the mischief of the statute. In the English statutes, the expression used was “take out of the possession” and not “out of the keeping” as used in Section 361 IPC. But that expression was construed in the English decisions not to require actual manual possession. It was enough if, at the time of taking, the girl continued under the care, charge and control of the parent — see R. v. Mankletow [(1853) 6 Cox Criminal Cases 143: 169 ER 678]. These decisions were held to confirm the view that Section 361 is also designed to protect the sacred right of the guardians with respect to their minor wards.