Ensure Strict Compliance Of Procedure U/Ss. 147 & 148 BSA While Recording Witness Statement Via Video Conference: Supreme Court Directs Trial Courts
The Supreme Court observed that none of the parties should be put to a dis-advantage merely because the witness is not in attendance before the Court.
Justice Vikram Nath, Justice Sandeep Mehta, Supreme Court
The Supreme Court has directed that in every case where it is proposed to record the statement of a witness over video conferencing (VC) and any previous written statement of such witness of case is available, the Trial Courts shall ensure that a copy of the statement or document is transmitted to the witness through electronic transmission mode.
The Court was deciding a Criminal Appeal filed against the Judgment of the Delhi High Court’s Division Bench, by which the accused’s Appeal was dismissed.
The two-Judge Bench of Justice Vikram Nath and Justice Sandeep Mehta ordered, “… we hereby clarify and direct that in every case where, it is proposed to record the statement of a witness over video conferencing and any previous written statement of such witness or a matter in writing is available and the party concerned is desirous of confronting the witness with such previous statement/matter in writing, the trial Court shall ensure that a copy of the statement/document is transmitted to the witness through electronic transmission mode and the procedure provided under Section 147 and Section 148 of the Bharatiya Sakshya Adhiniyam (corresponding Section 144 and Section 145 of the Evidence Act) is followed in the letter and spirit, so as to safeguard the fairness and integrity of the trial.”
The Bench said that none of the parties should be put to a dis-advantage merely because the witness is not in attendance before the Court, and the document/previous statement in writing with which such witness is sought to be confronted, cannot be shown/put to him.
“This direction is being issued with a view to avoid procedural irregularities and to prevent disadvantage to any party before the Court, and also to uphold the principles of fair trial, effective cross examination, and proper appreciation of evidence”, it also clarified.
AOR Ajay Marwah represented the Appellant/Accused, while Additional Solicitor General (ASG) Vikramjeet Banerjee represented the Respondent/State.
Factual Background
The High Court had affirmed the Judgment of the Additional Sessions Judge (ASJ) by which the Appellant-accused was acquitted of the charges under Sections 3, 3(1)(i), 3(1)(ii), 3(2), and 3(4) of the Maharashtra Control of Organised Crime Act, 1999 (MCOCA), and Sections 396, 307, 397, and 412 read with Section 34 of the Indian Penal Code, 1860 (IPC), but was convicted for the offence punishable under Section 302 of IPC; whereas the remaining co-accused were acquitted. The High Court further affirmed the Order on sentence by which the accused was sentenced to undergo imprisonment for life along with a fine of Rs. 5,000/-. As per the prosecution case, in November 2008, an information was received at the police station through wireless operator regarding an incident of house breaking at night where the intruders were allegedly assaulting the occupants of the premises.
Thereafter, further information was received which was reduced into writing. Upon entering the premises, the police officers found the sliding door of the drawing room broken, the side grill bent, the house ransacked, and the household articles scattered. A large pool of blood was noticed in the lobby where the dead body of an elderly male was lying, alongside certain articles. Bloodstains and articles in disarray were also observed in the adjoining bedroom. On hearing faint cries emanating from the adjoining bedroom, the police officials rushed inside and found an elderly lady lying in an injured condition. Resultantly, an FIR was registered and subsequently, the accused was apprehended.
Court’s Observations
The Supreme Court in view of the facts and circumstances of the case, observed, “The Evidence Act/ Bharatiya Sakshya Adhiniyam, 2023 provide the procedure for evidence as to the matters in writing and cross-examination as to previous statements in writing. … wherever questions are required to be put as to the matters in writing/previous statements in writing, the attention of the witness must be drawn to the document/statement itself. Thus, a question would arise as to how this procedure would be followed in cases where the evidence of the witness is being recorded over video conferencing.”
The Court noted that in this age of advancement of technology, instances are galore where, the evidence of witnesses are being recorded over video conferencing.
Identification in Court after delay – Unsafe and Improbable
The Court reiterated that the evidence of an eye-witness must be of sterling quality and unimpeachable character and it should not only inspire the confidence of the Court but must also be of such a nature that is acceptable at its face value.
“In assessing the credibility of a witness, the testimony must inspire confidence in the judicial mind, and omissions, improvements, or contradictions touching the core of the prosecution version inevitably undermine such assurance. This Court has consistently held that minor discrepancies are not fatal, but material improvements that go to the root of the matter essentially erode the credibility of the witness”, it emphasised.
Glaring Infirmities in the Test Identification Proceedings
The Court said that where the witnesses have had an opportunity to see the accused prior to the holding of the TIP (Test Identification Parade), the evidentiary worth of such proceedings stands considerably diminished.
“It is the duty of the prosecution to establish beyond doubt that right from the time of arrest, the accused was kept baparda to rule out the possibility of his face being seen before the identification proceedings are conducted. If the witnesses have had any opportunity to see the accused before the TIP – whether physically or through photographs – the credibility and sanctity of the identification proceedings would stand seriously compromised”, it added.
The Court, therefore, refused the prosecution version that the efforts made to subject the accused to TIP failed on account of their refusal.
“While the refusal of the appellant to participate in the TIP may, prima facie, invite an adverse inference, mere such inference cannot support the theory of identification when the very authenticity of the TIP is under a serious cloud of doubt”, it held.
The Court further enunciated that when it stands established from the record that the TIP attempted by the prosecution was fundamentally flawed, and a doubt is created that the identifying witness herself may not even have been present to participate therein, the very foundation of the identification proceedings falls flat to the ground.
Conclusion
The Court was of the view that guilt cannot be fastened upon the Appellant, as the recovery by itself is not sufficient to prove the case beyond reasonable doubt.
“The mere availability of human blood on an article is not sufficient unless it is further corroborated by a matching blood group with that of the deceased. … Once the identification of the accused by Smt. Indra Prabha Gulati (PW-18) is discarded, and the recovery of articles cannot be connected either with the crime or with the accused, no substantive or credible evidence remains on record to link the accused with the offence”, it concluded.
Accordingly, the Apex Court allowed the Appeal, set aside the impugned Judgment, and acquitted the accused.
Cause Title- Raj Kumar @ Bheema v. State of NCT of Delhi (Neutral Citation: 2025 INSC 1322)
Appearance:
Appellant: AOR Ajay Marwah, Advocates Swaroopanand Mishra, Mrigank Bhardwaj, and Parkhar Singh.
Respondent: ASG Vikramjeet Banerjee, AOR Mukesh Kumar Maroria, Advocates Shubhendu Anand, Priyanka Das, Dacchita Shahi, Arushi Singh, and Sunanda Shukla.
