Farida @ Farid Ahmed v. The State Of Chhattisgarh

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IN THE HON'BLE HIGH COURT OF CHHATTISGARH

AT BILASPUR CRIMINAL REVISION No ^^/2014 Farida @ Farid Ahmed, .8/0.

Siddique Ahmed, aged about 48 REVISIONER ::

ACCUSED f^ J'&^C Years, R/o. Rajatalab, Raipur, Tahsil, Civil Revenue ^^!l/f-^>.

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District Raipur (C.G.) Permanent Address - Village Police Station Moudaha, District Hamirpur (U.P)

Versus

NON-APPLICANT The State of Chhattisgarh fhrough Station House Officer, Police Station Moudahapara, Raipur, Civil & Revenue Distt.Raipur (C.G.) ^ CRIMINAL REVISIQN UNDER SECTION 397 READ WITH_SECTION 401 OF THE CODE OF CRIMINAL Being aggrieved the order dated ^.

13.10.2014 passed in deposition sheet while recording ^ evidence of PW-2 Bhawesh Dubey in S.T.No.44/2006 between State Vs. Nasim @ Nasimuddin (ANNEXURE RV-1), pending before the 3rd Additional Sessions Judge, Raipur, whereby the learned Judge has the prosecution to refresh the inemory of -.s.tctMl^/^^l-^^'M^r-V^SeefwSvtfA^a.Sn^a^^sy^sws^^^^ -jaawzn^i^i^^^, witness on the basis of statement recorde4 u/S 276 of >..._.

(2) Evidence Act of examination in-chief recorded when the trial was conducted against the earlier prosecuted accused in stead of showing the statement under Section 161 of Cr.P.C. recorded by the police during investigation. The Revisioner most respectfully prefers this revision on the following facts grounds, amongst others :-

HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Revision No^847_of2014 Revisioner (Accused) (Injail) Farida (5). Farid Ahmed

VERSUS

Respondent The State of Chhattisgarh SB: Hon'ble Shri Goutam Bhaduri. J.

Present:

Mr. Y.C. ShaHnapCltHr^lllSEffthjfelSgRlifiant. Mr. AaKish tliiyKla;'G.A:With Mr; VfhoEls'BKaro, P.L. for the State. JUDGMENT , (Delivered on^^syoSDecember, 2014) .j|;, 1.

Challenge in this petitiohysMifhe part of proceeding ofthe Court below whereby the Courtof Sessions has allowed one witness to refer to the earlier statement maye in criminal trial wherein he was examined and discharg]eet;''Elae proceedings were of criminal trial ;

wherein at earlier point of time few of the accused were present and faced the trial but for the applicant.

2.

The brief facts of the case as has been stated by the applicant are that 13 accused were inculpated in the criminal case and chargesheet was filed. It is stated that earlier in the first set of trial 6 accused persons were tried.

Out of 6 accused so tried judgment dated 08.03.2007, 5 accused were convicted and 1 was acquitted while other were absconded. Subsequently, in another set of trial after some time few of absconded accused were tried :?-;anfc^....

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and on 29.01.2011, 3 accused were convicted and 1 accused was acquitted. So total 10 accused stood the trial for the same offence. The offence is with respect to a murder trial of Satwant Singh @ Gappu in the year 2005. Subsequently, again another set of accused who was absconding was tried and ultimately by a judgment dated 13.03.2013, he was convicted thereby making total number ofaccused to be 11.

3.

Learned counsel forJha,;a|:»Rlicant^submitsthat now this applicant Farida,^l|arBiUhmed Ts Beingc#ie|j?j|w8o finds place at serial -Ro:|®6f the accused and one accused is stiCiabsconding. It is i-stated that one of theffieye'witness namely Bhawesh 0yt)ey while was examined beforeftHeCoyffilon 13.10.2014, the Courtwith aid of Section 159 ofthe'Esidencs^ct, allowed the witness to refresh his memory with respeefcfoi:the earlier statement made in the same trial. The counsel would further submit that such referesh of memory with the ata;of?Sei:;tibn 159 of Evidence Act is not permissible. He further submits that the Court statement cannot be used to refresh the memory and further since it is a criminal trial the said document has not been supplied to the applicant, the same cannot be referred by the prosecution. He further submits that the transaction used in Section 159 of the Evidence Act cannot take into sweep the 'statement' made in the Court. 4.

Learned State counsel submits that refresh of memory was made with the aid of Section 159 of the Evidence Act. He states thatin the same series of transaction since the incident was one but the B^yy!lA.i.;iii:^1'':^..

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accused were tried in the part and piece-mill, therefore, the occasion arose. He further submits that the word used document cannot be taken into narrow compass and it will take within its sweep the earlier statement too and therefore the order is well merited, which do not call for any interference. 5.

I have heard learned counsel appearing for the parties and perused the documents and evidence on record. 6.

In order to deei|<gktMl6 |0n|EgyeUlllA8nd itwould be relevant to quote'gei3tidn159 and 160 ofthe Evidenee Mt:-,.,;, "Section 159.

Refreshing memory. 5-A witness may, ]while^un|l8f exammation, refreshffiis memory by referrJHg to.any writing made by himself at the time o^thfi tcansaelipn concerning which he is questioned, dF^so|ss6iw?afterwards that the Court considers it likely'tKat thetransaction was at that time fresh in his mempry.y"

The withess rnay also refer to any such writing made by anyiottieL'person.and read by the witness within the time aforesaid, if when he read it he knew itto be correct;"

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When witness may use copy of document to refresh memory. - Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document:

Provided the Court be satisfied that there is sufficient reason for the non-production of the original.

An expert may refresh his memory reference to professional treatises.

Section 160. - Testimony to facts stated in document mentioned in section 159. - A witness may also testify to facts mentioned in any such document as is mentioned in section 159, although he has no specific recollection of the facts

themselves, if he is sure that the facts were correctly recorded in the document."

7.

The Evidence Act states, the evidence means and includes the statement which the Court permits or requires to be made before it witness, in relation to matters under enquiry, therefore, the earlier statement which was made before the Court at the time of evidence will be covered within the definition of oral evidence U/s. 3 of the Evidence Act.

8.

Now referringstaijprqy|sMs|@f Sg|jtifini;4.59 of the Evidence Act, it allc8A/sthg|Atitness to refresh memory Frr'whiGhi^hastatement was WsaSe of the transactioo;»esncerning. If the sectiaQg[its|read as a whole together it<'Eak$s;t«itftiSB(t^sweep, the earlieN'statement ,t .'^'~.('KvK^i^M. 1'~^ lg|jlates that the witness may also made in Court. Thes refer to any such writjnljfna^eiby any other person and read by the witness withiRf?tR&:?'l:iBB©%aferesaid. Further reading of the proviso of the secoriefSpailCltggsefion 1 59 it refers the witness may refer to any such writing made when he read and knew it to be . correct.

9.

The earlier statement recorded before the Court will therefore be covered in the second part of Section 159 of the Evidence Act. The statement of the witness when is recorded in Court it is always read over and explained and turn is signed by the witness. So such part of statement signed by a witness becomes an evidence.

i^ 1.

10.

Now ifwe referto the first part of Section 159 ofthe Evidence Act it allows a witness to refresh his memory by referring to any writing made by himself at the time of the transaction concerning, which he is questioned. The transaction in the instant casewould mean the recorded statement of witness in earlier proceeding by the Court.

It will not mean the actual incident. Therefore, the earlier statement recorded before the Court will be covered within the word transaction to refresh of memory by a witness, which finds place .in^egti|)H£|[,Bij3l:'@vi|MieB|tpt.: 11.

,3'he^iiteih interpretation of Section 159 and '•f'6g',©t.,EyidenceAct ;|vtfbuld make it cleaF-tiigifrMie aatiiess who has himsel^lleposed at the earlier point of ttftitjBBWlitje'Court ih respect of incident is a transaction and if suSj|tft|UjE^s is again required to give a 1 K fTs] ff $1 evidence there is not^l(®^r8^@^inallowing the witness to refer to the earlier statem^nt^wHtl%ian5w|ej1ng the question put to him in his examination. He^^gn§^j^e expected to remember every transaction, i.e. the evidence in the case in all detail and Section <s-^ 160 of the Evidence Act specifically permits a witness to testify the facts mentioned in the document referred to Section 159 of the Evidence Act. So once the statement is recorded and signed in court it becomes a evidence. This is precisely what has happened in this case.

12.

So in my opinion, the statement which was given earlier in the same session trial by the witness will be covered within the word transaction which finds place in Section 159 ofthe Evidence Act Bfc

and therefore, while recording the evidence in the same sessions trial for the absconding accused, the witness may refer to refresh his memory by aid of Section 159 of Evidence Act. 13.

Consequently, l am of the opinion that the Trial Court has not committed any wrong to allow the witness to refresh his memory to refer to the earlier statement which is covered under the word transaction and consequently has not committed any illegality. 14.

The revisionaL|3j@Sve|r|:fl|,ffills|Hi^jC|QktE;t under Section 397 read with_S|cti|n2ISW1 does not create any rigWf ir|tlle,,)itigant, but only paiSBrves the power ,.te,iSee that justice isf .iBtfnei&and the subordinate Court^, |j|)|;i^)t%|%ceed jurisdiction or affuse their powers. The order ciT;B|NB>i8|j|fl£ought not to be lightly set aside ''itssst9Sisyi unless it has entailecB r|^c^r^ge of justice. Even in the cases where it is possible.i'tta'iaReiwCvtews on the same matter then in the ordinary course fBeSSiSjfiSKth by the Court below should not be interfered in the revisional jurisdiction. ^ 15.

As a result, the revision has no merit is accordingly dismissed.

--- Sd/- Goutam Bhaduri'

Judge balram BSB^Z==ES»C: