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To what extent Deposition of Witness made in earlier Proceeding can be marked?


CRP No. 4853 of 2018

Decided On: 25.04.2019

Telanakula Kasi Viswanadham


Pokuri Maruthi Prasad

Hon’ble Judges/Coram: M. Seetharama Murti, J.

Citation: AIR 2019 AP 79

1. The unsuccessful respondent in GWOP No. 1 of 2014 on the file of the Court of the learned X Additional District Judge, Gurazala, filed this civil revision petition, under Article 227 of the Constitution of India, being aggrieved of the intermediary order, dated 24.7.2018, passed by the said learned Judge in the afore-stated GWOP.

2. I have heard the submissions of Dr. Challa Srinivasa Reddy, learned Counsel, appearing for the revision petitioner/respondent, (hereinafter, ‘respondent’), and of Ms. T.V. Sridevi, learned Counsel for the respondent/petitioner, (hereinafter, ‘petitioner’). I have perused the material record.

3. The introductory facts, in brief, are as follows:

The petitioner filed the afore-stated GWOP for appointing him as natural guardian of a minor girl, Pokuri Neeraja, and for granting the custody of the said girl to him, he being the father of the said girl. The respondent, who is the maternal grandfather of the said girl, is resisting the said OP. During the course of trial, when the petitioner was being examined as PW 1, the learned Counsel for the respondent confronted his previous deposition (PW 1’s previous deposition) in MC No. 25 of 2012 on the file of the learned Judicial Magistrate of First Class-cum-I Additional Junior Civil Judge, Gurazala, and requested the Trial Court to mark a portion of the said deposition viz., examination-in-chief, inter alia, contending that a party like the respondent is entitled to cross-examine the petitioner like PW 1 with respect to his previous statements made on oath before a competent Court and that such witness can be contradicted by drawing his attention to the contents of his earlier deposition and that the earlier deposition can be used for the purpose of contradiction. Learned Counsel for the petitioner opposed for such marking of a portion of the deposition. The Trial Court by the impugned order refused to grant permission to mark the portion of his (PW 1’s) earlier deposition viz., chief-examination in MC No. 25 of 2012 wherein he was examined as RW 1. The Trial Court in the concluding portion of the order, which is impugned, held verbatim as follows:

‘The proper course would be to cross-examine PW 1 on the basis of his previous statement given in a judicial proceeding and to cite him attention to relevant portion of his evidence and then mark the entire document as exhibit but not only a portion of earlier statement which is not contradicted. nor admitted since PW 1 did not give a perfectly satisfactorily explanation, in such event portion in the previous statement which would otherwise be contradictory would no longer to go to contradict or challenge the testimony of witness….’

Aggrieved of the orders of the learned Trial Judge, the respondent filed this revision before this Court.

4. Learned Counsel for the revision petitioner-respondent in the OP, while reiterating the contentions of the respondent, which were advanced before the Court below, contended as follows:

PW 1 figured as a witness in MC No. 25 of 2012 and gave evidence as RW 1. The said MC is a previous proceeding between the same parties, that is, the petitioner and the respondent in the instant OP. The respondent herein is the maternal grandfather of the girl child. After the death of the mother of the child, he is taking care of the girl child and looking after her welfare. In the said MC, he (PW 1 herein) admitted in his cross-examination that he is not having sufficient means and that he is dependent upon his parents. During the course of his cross-examination in this OP a portion of his said previous deposition related to the above aspect was sought to be confronted to him for being marked as a contradiction. Though such a portion of the deposition of the witness can be marked for the purpose of contradicting the witness, after drawing the attention of the witness to that portion of the earlier deposition, the Trial Court erroneously declined to grant the request for marking the confronted portion of the previous deposition of PW 1 by erroneously holding that a portion of the deposition cannot be marked and that the entire deposition has to be marked. Such a view of the Trial Court is totally erroneous. When the witness is very much alive, it is impermissible to mark his entire previous deposition. When a witness makes a statement in the present deposition, which is contrary to his statement made in his previous deposition, he can be confronted with the relevant portion of his statement in the previous deposition, which runs contrary to his statement in his present deposition. If he still maintains a contradictory stand, the confronted contradictory portion in the earlier deposition can be marked as an exhibit. However, if he admits that in his previous deposition he deposed contrary to the present deposition, the said admission can be recorded and it becomes part of the present deposition. In such an event, there is no need to mark any portion of the previous deposition in view of his admission. But the course adopted by the Trial Court and its observation in the impugned order that the entire deposition ought to be marked is contrary to the settled legal position.

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5. Learned Counsel for the petitioner in the OP (PW 1), that is, the respondent herein supported the orders of the Trial Court and contended that in view of the statements made in the entire previous deposition, mere marking a portion of a previous deposition would cause prejudice and, therefore, the best course is to mark in the present case, the entire previous deposition of PW 1 and not a portion of it.

6. In reply, learned Counsel for the revision petitioner-respondent contended that if any other portion other than the portion confronted is also to be marked to clarify the position, then it is always open to the Counsel for PW 1 to conduct re-examination or re-examination in chief with the permission of the Court and mark any other portion of the same previous deposition but under no circumstances, entire deposition of a witness can be marked, more particularly when the witness is very much available for being examined and is being examined as a witness (PW 1) before the Court.

7. I have given earnest consideration to the facts and submissions.

8. It is profitable to refer to the legal position obtaining.

Section 33 of the Indian Evidence Act, 1872, reads as under:

Sec. 33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.-Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:


that the proceeding was between the same parties or their representatives in interest;

that the adverse party in the first proceeding had the right and opportunity to cross-examine;

that the questions in issue were substantially the same in the first as in the second proceeding.

Explanation.-A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.

A plain reading of this section reflects that one of the following conditions has to be fulfilled for the previous deposition to be admissible in a subsequent judicial proceeding or in the later part of the judicial proceedings.

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The person/witness who made the deposition in the former judicial proceeding must be shown to be unavailable for the following reasons:

(i) the witness is dead;

(ii) the witness cannot be found;

(iii) the witness has become incapable of giving evidence;

(iv) the attendance of the witness cannot be procured without any amount of delay or expense, which appear to the Court unreasonable; and,

(v) the witness is kept out of the way by the adverse party.

In the case on hand the witness is very much available and is being examined as PW 1 and hence the question of marking of his entire deposition given in the former judicial proceeding does not arise for consideration.

Sections 17, 21 and 145 of the Indian Evidence Act, 1872, read as under:

Sec. 17. Admission defined.-An admission is a statement, oral or documentary or contained in electronic form, which suggest any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.

Sec. 21. Proof of admissions against persons making them, and by or on their behalf.- Admissions are relevant and may be proved as against the person who makes them or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases:-

(1) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under Section 32.

(2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable.

(3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission.

Sec. 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.

In Bharat Singh and others v. Mst. Bhagirathi, MANU/SC/0362/1965 : AIR 1966 SC 405, the Supreme Court indicated the scope of Section 145 of the Evidence Act, thus:

“19. Admissions have to be clear if they are to be used against the person making them. Admissions are substantive evidence by themselves, in view of Sections 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under Section 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence.”

The Supreme Court in Biswanath Prasad and others v. Dwarka Prasad and others, MANU/SC/0006/1973 : AIR 1974 SC 117, considered the distinction between substantive evidence and the prior statement of a witness used for the purpose of contradiction and explained the legal position thus:

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“There is a cardinal distinction between a party who is the author of a prior statement and a witness who is examined and is sought to be discredited by use of his prior statement. In the former case an admission by a party is substantive evidence if it fulfills the requirements of Section 21 of the Evidence Act: in the latter case a prior statement is used to discredit the credibility of the witness and does not become substantive evidence. In the former there is no necessary requirement of the statement containing the admission having to be put to the party because it is evidence proprio vigore: in the latter case the Court cannot be invited to disbelieve a witness on the strength of a prior contradictory statement unless it has been put to him, as required by Section 145 of the Evidence Act.”
9. In view of the above precedential guidance, it is clear that as it is the case of the revision petitioner/respondent in the instant OP that the witness (PW 1) made a statement in his present deposition contrary to certain admissions, which he made in the deposition given by him in the former judicial proceeding, the contrary statements in his said previous deposition can be confronted to him in his cross-examination; and, on such confrontation, if he admits the confronted portions or statements in his previous deposition, such admissions can be recorded by the Trial Court in his present deposition; however, if, on such confrontation, he denies the previous statements in his previous/former deposition, which are contrary to his statements in his present deposition, then the confronted portions only of the previous deposition given in former judicial proceeding can be permitted to be marked, but, the entire deposition cannot be permitted to be marked in the instant case, in view of the facts and the legal position obtaining.

10. On the above analysis, this Court finds that the order impugned brooks interference.

11. In the result the civil revision petition is allowed and the impugned order is set-aside. The Trial Court is now directed to permit the Counsel for the revision petitioner/respondent in the OP to further cross-examine PW 1 and elicit answers by confronting to him the portions in his deposition given in former judicial proceedings, which are or which appear to be contrary to his statements in his present deposition and record his answers/admissions, in the event he admits the portions of his previous deposition, which are confronted to him or in the alternative permit to be marked only such confronted portions of his (previous) deposition given in former judicial proceedings, if he does not admit the same. As a sequel to this order, the Trial Court shall suo motu recall the witness – PW 1 for the above purpose, if the evidence of the said witness is already closed. It is needless to state that in the event certain portions from the previous deposition of PW 1 are thus marked, it is always open to the Counsel for PW 1 to seek permission of the Court to re-examine or to further examine in chief, the said witness and it is for the Trial Court to consider the said requests as per law and procedure, having regard to the facts and circumstances of the case.

12. There shall be no order as to costs.

13. Miscellaneous petitions, if any, pending in this revision shall stand closed.

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