When the accused is brought before the court, the public prosecutor opens the case by describing the charges brought against the accused. He also states by what evidence he proposes to prove the guilt. Evidences should be recorded in clear manner. The presiding officer takes participative role in taking and recording evidences. Section 272 to 283 of Code of Criminal Procedure, 1973 read with rules covered under Chapter XII of General Rules and Circular Order Volume- I throws light on mode of taking and recording evidences in criminal cases.
Mode of Recording Evidences under Indian law
1. Section 273 – It mandates to record all the evidences in presence of the accused ,when his personal attendance is dispensed with , the same must be recorded in the presence of his pleader.
2. Section 274 – Magistrate shall record memorandum of substance of evidence in the language of the court and it must be signed by him.
3. Section 275 (1) – In all warrant cases, the evidence of each witness shall be taken down in writing either by magistrate or by his direction or if he is unable to do so due to physical or other incapacity, under his direction and superintendence, by an officer of the court appointed by him in his behalf. Provided that evidence of witness under this sub- section be recorded by audio-video electronic .
4. Section 275 (3) – Permits the Magistrate to record the evidence in the form of questions and answer.
5. Section 276 – Recording of evidence before session court should be in the form of narrative. The presiding officer in his discretion can take down any part of evidence in form of question and answer and it has to be signed by him.
6. Section 278 – The evidence of a witness when completed should be read over to him in presence of the accused or his pleader. It should not be done at the end of the day after examining all witness. It can be corrected by the accused if needed.
7. Section 280 – It empowers the Presiding judge or the Magistrate to record the remarks.
8. Rule 83 – The margin of 1/4th of the deposition sheet should be left blank
9. Rule 84 – Enables court to record deposition of type writing machine. A certificate must be given by Presiding Judge that evidence is recorded in his dictation and each page has to be attested by him.
10. Rule 85 – the Presiding Judge shall record in his own handwriting the name of the witness examined and his details.
11. Rule 87 – Deposition of each witness should be separately paragraphed in consecutive number order.
12. Rule 88 – The Presiding Judge shall sign the certificate at the bottom of the deposition of each witness and it is explained to the accused and admitted to be correct.
Marking of Exhibits
Prosecution shall submit some evidences, these evidences has to be marked with number in the order in which they are admitted. For example: Ext.1 , 2, 3 etc. The documents admitted in behalf of defense shall be marked with alphabets in capital letters. For example : Ext. A, B,C etc. If neither party is willing to accept them as evidence then they shall be marker as : Ext C-I , C-II etc. If number of documents are of same nature then a small number or small letter be added to distinguish each document of the series. After being proved and admitted as evidence it shall be marker with Roman number. For example :MO-I, MO-II etc. The list of articles shall be prepared by the Bench clerk of the court and shall be signed by the Judge.
Illustration 1 : Banchhanidhi Singh v. State of Orissa[i]
It was reported in 1990 Criminal Law Journal 397, where the accused was facing trial for the offence under section 379 of Indian Penal Code. The personal attendance of the accused was dispensed with and the lawyer representing the accused was also not present during the examination. The High Court held that the examination was made in gross violation of the mandatory provisions of Section 273 of Cr.P.C and the entire trial was held to be vitiated.
Illustration 2 : Javer Chand and Others v. Pukhraj Surana.[ii]
Whenever an objection is raised, the court does not proceed further without passing order on such objection. If there is an objection regarding the stamp duty of a document, then the objection is decided then and there before continuing with the proceeding further.
Illustration 3 : State of Madhya Pradesh v. Budhram[iii]
The accused was convicted of the offence under Section 302 of IPC and death sentence was imposed on him. It was set aside because the evidence was recorded in his absence and the case was remanded back for trial.
Illustration 4 : State of Maharashtra v. Dr. Prafull B. Desai and Another[iv]
The important question that aroused in this case was whether the evidence of a prosecution witness can be recorded on video conferencing and whether it is permissible in law in a criminal trial in the face of Section 273 of the Code of Criminal Procedure. It is well settled in the case that the mandatory provision should be strictly construed and therefore, it would not be feasible or proper to bring within the fold of Section 273 the recording of deposition through a medium of video conferencing by any liberal interpretation of the said provision
Frequently Asked Questions
1. If objection is raised during examination of prosecution witness regarding proof of document, how does the court deal with the situation?
Whenever an objection is raised, the court does not proceed further without passing order on such objection. The court makes a note of such objection and mark the document tentatively as an exhibit in case. It is decided at the last stage of the final judgment.
2. Is recording of evidence by video conferencing permissible?
It is permissible, a proviso was inserted to sub section (1) to section 275 of the Code Of Criminal Procedure, 1973 by Act 5 of 2009.Its states that : “Provided that evidence may be recorded by audio-visual means in the presence of the advocate of the accused of the offence.”
3. Whether defense can be allowed to recall a prosecution witness for re-examination?
Section 137 and 138 of Evidence Act leads to the conclusion that only prosecution has right to recall witness for re-examination. Newly appointed advocate cannot recall for re- examination on the ground that earlier advocate had failed to ask certain questions and even if the case has been settled amicably
4. How does a magistrate of First Class examine the witnesses in absence of accused?
If the accused of an offence punishable with death or imprisonment of life absconds, the High Court directs the Magistrate of First Class to hold an enquiry and examine the witness. The evidence of such witnesses can be used against the accused on his arrest.
The force of judgment is brought out by the recording of evidences. The mode of recording and taking evidences is uncountable and integral feature of criminal trial. The court looks at the evidences and decide upon the cases through the eyes of trial judges. The presiding judge may scrutinize evidence led by both the sides. A judge should be well equipped with legal knowledge and also well trained in recording evidence and protection of innocent. The initial recording of crime scene is the back bone for investigation. There are ma ny sources of evidence which include anything from observation of witnesses to the examination and analysis of physical object in the crime scene. It may even include relationships between people, places and objects within the timeline of events in the crime. From the various forms of evidences, court can draw inferences and reach conclusion to prove the charge beyond a reasonable doubt.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
[i] 1992 CriLJ 1739
[ii] AIR 1961 SC 1655
[iii] 1995 (0) MPLJ 906
[iv] AIR 2003 SC 2053