A Dropped Negative, a Defective Translation and an Operative Portion That Contradicts the Finding
PW-3, an Odia-speaking farmer, was examined in a sessions trial. His deposition was recorded in Odia, read over to him, admitted by him and signed in the manner required by law. The material answer reads: 'ମୁଁ ଅଭିଯୁକ୍ତକୁ ଚିହ୍ନି ପାରିଲି ନାହିଁ' - that is, 'I could not identify the accused.' The certified copy supplied to the defence carries an English rendering prepared in the copying section which reads: 'I identified the accused.' Relying on the certified copy, the defence argues in appeal that PW-3 identified the accused and that the trial court's finding to the contrary is perverse. Separately, the operative portion of the judgment records conviction 'under Section 103(1) BNS' with rigorous imprisonment for life, whereas the body of the judgment holds proved only an offence under Section 105 BNS - culpable homicide not amounting to murder - and discusses a sentence of ten years. The defence has applied before the same court for correction of both.
1. Which record governs when the original deposition and the certified English translation differ, and what should the appellate court do?
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The original record governs. Evidence in a trial is recorded in the language of the court or in English as the court directs, and the deposition is then read over to the witness, admitted by him and signed by the magistrate. That signed deposition is the evidence. A certified copy is merely a copy of that record, and the English rendering typed in the copying section is a ministerial aid prepared by a translator who is not a witness and whose work has not been proved. It is not evidence and it is not part of the record.
The discrepancy here turns on a single word. The Odia sentence ends with 'ନାହିଁ', the negative, and the English rendering has dropped it, reversing the sense of the answer. The translator has converted an inability to identify into an identification, which is the entire foundation of the defence argument.
The appellate court should send for the original record rather than act on the certified copy. Section 391 CrPC permits it to take additional evidence, but that is unnecessary once the original is before it. If the certified copy is found to be inaccurate, the court should direct the copying department to issue a corrected copy, and may notice the defect for such administrative action as is appropriate. The defence contention then falls away, because the trial court's finding accords with what the witness actually said. The same course is open in revision or under Section 482 CrPC.
2. Can the defence use the English rendering as a previous statement to contradict PW-3, and what is the correct procedure if it wishes to do so?
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No. To contradict a witness under Section 145 of the Evidence Act, what is put to him must be his own previous statement in writing, or a part of a document proved to be in his hand or otherwise shown to be his. The English rendering is the translator's writing, not the witness's. Nor is it a statement made to a police officer during investigation, so Section 162 CrPC has no application and cannot help the defence either.
If it is the prosecution that wishes to discredit PW-3, because he has resiled from what he told the investigating officer, the prosecution must first obtain the leave of the court under Section 154 of the Evidence Act to put questions to its own witness as though he had been called by the other side. Only after that leave is granted can the earlier statement be used, and even then what is put to him is the original Odia text, not a translation.
The defence's proper course is to apply for inspection and a copy of the original deposition, compare it with the certified copy, and, if it still wishes to use the discrepancy, to prove the document in the manner the law requires for secondary evidence. A defective translation does not become secondary evidence of the deposition merely because it is annexed to a certified copy.
3. Can the trial court correct the operative portion of its own judgment so that it conforms to the finding in the body?
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Section 362 CrPC prohibits a court from altering or reviewing its judgment once it is signed, except to correct a clerical or arithmetical error. The dividing line is substance. If the correction leaves the finding and the sentence untouched, it is clerical; if it changes either, it is not, and the remedy lies in appeal.
On these facts the body of the judgment holds proved an offence under Section 105 BNS, which carries imprisonment up to ten years, and discusses a sentence of ten years. The operative portion records conviction under Section 103(1) BNS with imprisonment for life. To correct the operative portion to Section 105 and ten years would reduce the sentence; to correct the body to Section 103 would enhance it. Either way the court would be rewriting its own verdict, which Section 362 forbids.
A judgment must no doubt be read as a whole, and where the operative portion is a demonstrable slip the court may sometimes set it right. But that course is safe only where the slip is beyond argument and the sentence is unaffected. Here the sentence itself is in conflict, so the court should decline the application, record its reasons in a short order, and leave the party to appeal; the appellate court can set the matter right under Section 386(b) CrPC. The court should also take care, in future, to check the operative portion against the findings before signing.