PETITIONER: TAHSILDAR SINGH AND ANOTHER Vs. RESPONDENT: THE STATE OF UTTAR PRADESH DATE OF JUDGMENT: 05/05/1959 BENCH: SINHA, BHUVNESHWAR P. BENCH: SINHA, BHUVNESHWAR P. IMAM, SYED JAFFER KAPUR, J.L. SARKAR, A.K. SUBBARAO, K. HIDAYATULLAH, M. CITATION: 1959 AIR 1012 1959 SCR Supl. (2) 875 CITATOR INFO : R 1960 SC 706 (27,28) R 1962 SC 605 (26) R 1964 SC1563 (8) R 1970 SC1006 (7) RF 1972 SC1004 (82) E 1974 SC 308 (1,6,10) RF 1975 SC 667 (95) RF 1975 SC1758 (18) D 1977 SC1579 (28) RF 1981 SC1068 (3) ACT: Criminal Trial-Police Statements-Use of-Omission, when amounts to contradiction-Code of Criminal Procedure, 1898 (V of 1898), s. 162-Indian Evidence Act, 1872 (1 of 1872), s. 14.5. HEADNOTE: A music performance attended by a large number of persons including two police informers Bankey and Asa Ram was going on on a platform in front of the house of one Ram Saroop. At that time there was a full moon and the light of a gas lamp and several lanterns. The informers had placed their guns on a cot close to the platform and one Bharat Singh was sitting on that cot. The accused along with 15 or 20 persons suddenly arrived armed with fire arms to kill the informers and stood behind a well on the southern side, from where they shouted that no one should run away and advanced firing shots. Two persons were killed on the spot. Bharat Singh was hit and he ran northwards pursued by the culprits and was also shot dead. The culprits turned over the dead bodies and on seeing Bharat Singh's face they exclaimed that Asa Ram informer had been killed. They then passed in front of Ram Saroop's house and disappeared. While going they carried away Bankey's gun from the cot. The appellants and seven others were sent up for trial for this occurrence. At the trial the defence alleged that prosecution had developed its case. The police statements of the eye witness did not mention the facts regarding the scrtitiny of the (lead bodies and the presence of the gas lantern, and the defence counsel put the following two questions with respect to these omissions to the first eye witness produced :- 1. " Did you state to the Investigating Officer that the gang rolled the dead bodies of Nathi, Saktu and Bharat Singh and scrutinised them and did you tell him that the face of Asa Ram resembled with that of the deceased Bharat Singh ?" 2. " Did you state to the Investigating Officer about the presence of the gas lantern ?" The Sessions judge disallowed the questions and on account of this order similar questions were not put to the other eye witnesses. The Sessions judge convicted the appellants under s. 302 Indian Penal Code and sentenced them to death. The appellants appealed to the High Court and made an application alleging that the Sessions judge had not allowed the defence counsel to put omissions amounting to material contradictions to 876 the eye witnesses and prayed that the eye witnesses be summoned so that the questions disallowed may be put to them. Though the High Court held that the omissions amounted to contradictions and that the Sessions judge had wrongly dis- allowed cross-examination with respect thereto, it found that even after ignoring these two circumstances there were other facts which showed that the culprits had come close to the eye witnesses and that they had unmistaken opportunity of identifying the appellants in the light of the full moon and the lanterns. The High Court accordingly dismissed the application for summoning the eye witnesses holding that no prejudice had been caused to the appellants by the disallowance of the cross-examination in respect of omissions and also dismissed the appeals and confirmed the convictions and sentences of the appellants. Held, (Per SINHA, KAPUR, SARKAR and SUBBA RAO, JJ.) that the omissions did not amount to contradictions -and that the Sessions judge was right in disallowing cross-examination in respect thereof. A statement to the police could be used under s. 162 of the Code only for the purpose of contradicting a statement in the witness box under the second part of s. 1, Evidence Act, but it could not be used for the purpose of cross-examining the witness under the first part of s. 145. A statement made to the police but not reduced to writing, could not be used for any purpose, not even for contradiction. It was incorrect to say that all omissions in regard to important features of the incident which were expected to be included in the statement made before the police, should be treated as contradictions. An omission in the police statement could amount to a statement and be used as a contradiction only when (i) it was necessarily implied from the recital or recitals found in the statement, (ii) it was negative aspect of a positive recited in the statement or (iii) when the statement before the police and that before the Court could not stand together. It was for the the trial judge to decide in each case, after comparing the part or parts of the statement recorded by the police with that made in the witness-box, whether the recital intended to be used for contradiction was one of the nature indicated above. In Ye Ponnusami Chetty, (1933) I.L.R. 56 Mad. 475 ; In 'Ye Guruva Vannan, I.L.R. (1944) Mad. 897; Ram Bali v. State, A.I.R. 1952 All 289; Badri Chaudhry v. State, A.I.R. 1926 Pat. 20, Sakhawat v. Crown, I.L.R. (1937) Nag. 277, referred to. Rudder v. The State, A.I.R. 1957 All. 239; Mohinder Singh v. Emperor, A.I.R. 1932 Lah. 103; Yusuf Mia v. Emperor, A.I.R. 1938 Pat. 579; State of M. P. v. Banshilal Behari, A.I.R. 1958 M.P. 13, disapproved. Held, (Per IMAM and HIDAYATULLAH, JJ.) that the questions that were put by the defence counsel were properly ruled out by the Sessions judge as they did not set up contradictions, but attempted to obtain from the witnesses versions of what they 877 had stated to the police which were then to be contradicted. The reference to s. I45 Evidence Act in s. 162 of the Code of Criminal Procedure brings in the whole of the manner and machinery Of S. I45 and not merely the second part. An accused is entitled to cross-examine the witness under the first part of s. 145 with respect to the police statement. Relevant and material omissions amount to vital contradictions which can be established by crossexamination and confronting the witness with his previous statement to the police. In the circumstances of the present case even if the defence had been allowed to put questions concerning the omissions, it would not have affected the credibility of the witnesses and no prejudice was caused to appellants by the disallowance of the questions. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 67 of
1958.
Appeal by special leave from the judgment and order dated
September 11, 1957, of the Allahabad High Court in Criminal
Appeal No. 1388 of 1956 and Referred Trial No. 133 of 1956,
arising out of the judgment and order dated September 8,
1956, of the Court of the Additional Sessions Judge at
Etawah in Sessions Trial Nos. 83 and 109 of 1955.
Jai Gopal Sethi and R. L. Kohli, for the appellants.
S. P. Sinha, G.C. Mathur and G. N. Dikshit, for the
respondent.
1959. May 5. The judgment of B. P. Sinha, J. L. Kapur, A.
K. Sarkar and K. Subba Rao, JJ. was delivered by K. Subba
Rao, J. and the judgment of Jafer Imam and M. Hidayatullah,
JJ., was delivered by M. Hidayatullah, J.
SUBBA RAO, J.-This appeal by special leave raises the
question of construction of s. 162, Code of Criminal
Procedure. On June 16,1954, one Ram Sanehi Mallah of
Nayapura gave a dinner at his home and a large number of his
friends attended it. After the dinner, at about 9 p. m., a
music performance was given in front of the house of Ram
Sanehi’s neighbour, Ram Sarup. About 35 or 40 guests
assembled in front of Ram Sarup’s platform to hear the
music. The prosecution case is that a large number of
persons armed with fire-arms suddenly appeared near a well
situated on the southern side of the house of Ram Sarup and
878
opened fire which resulted in the death of Natthi, Bharat
Singh and Saktu, and injuries to six persons, namely,
Hazari, Bankey, Khem Singh, Bal Kishan, Mizaji Lal and
Nathu.
The topography of the locality where the incident took place
is given in the two site-plans, Ex. P-57 and Ex. P-128. It
appears from the plans that the house of Ram Sarup faces
west, and directly in front of the main door of his house is
a, platform; to the southwest of the platform, about 25
paces away, is a well with a platform of 3 feet in height
and about 13 feet in width around it; and to the west of the
platform in front of Ram Sarup’s house the audience were
seated.
The prosecution version of the sequence of events that took
place on that fatal night is as follows: After the dinner,
there was a music performance in front of the platform of
Ram Sarup’s house and a number of persons assembled there to
hear the music. Saktu played on the Majeera while Nathu was
singing. it was a full-moon night and there were also a gas
lamp and several lanterns. Bankey and Asa Ram placed their
guns on a cot close to the platform and Bharat Singh was
sitting on that cot. While Bankey was among the audience,
Asa Ram was still taking his dinner inside the house. At
about 9 p. m., the accused along with 15 or 20 persons
arrived from an eastern lane, stood behind the well, shouted
that no one should run away and advanced northward from the
well firing shots. Natthi and Saktu were hit and both of
them died on the spot. Bharat Singh, who was also hit, ran
northward and was pursued by some of the culprits and was
shot dead in front of Bankey’s house shown in the plan.
Bankey, who was also shot at and injured, took up Asa Ram’s
gun and went up to the roof of Ram Sarup’s house wherefrom
he fired shots at the dacoits, who were retreating. Asa
Ram, who was luckily inside the house taking his dinner, ran
up to the roof of Ram Sarup’s house and saw the occurrence
from over the parapet. The culprits turned over the dead-
bodies of Saktu, Natthi and Bharat Singh and, on seeing
Bharat Singh’s face, they exclaimed that Asa Ram was killed.
Thereafter, they
879
proceeded northward, passed through the corner of Ram
Sarup’s house and disappeared in the direction of the
Chambal. They also carried away Bankey’s gun which was on
the cot.
The motive for the offence is stated thus : The culprits
were members of a notorious gang called the Man Singh’s
gang, who, it is alleged, were responsible for many murders
and dacoities in and about the aforesaid locality. That
gang was in league with another gang known as Charna’s gang
operating in the same region. Asa Ram and Bankey had acted
as informers against Charna’s gang, and this information led
to the killing of Charna. Man Singh’s gang wanted to take
vengeance on the said two persons; and, having got the
information that the said two persons would be at the music
party on that fateful night, they organized the raid with a
view to do away with Asa Ram and Bankey.
Out of the nine accused committed to the Sessions, the
learned Sessions Judge acquitted seven, convicted Tahsildar
Singh and Shyama Mallah under 14 charges and awarded them
various sentences, including the sentence of death. Before
the learned Sessions Judge, Tahsildar Singh took a palpably
false plea that be was not Tahsildar Singh but was Bhanwar
Singh, and much of the time of the learned Sessions Judge
was taken to examine the case of the prosecution that the
accused was really Tahsildar Singh, son of Man Singh. The
other accused, Shyama Mallah, though made a statement before
the Sub-Divisional Magistrate admitting some facts, which
were only exculpatory in nature, denied the commission of
the offence before the committing Magistrate and before the
learned Sessions Judge. As many as eight eyewitnesses
described the events in detail and clearly stated that both
the accused took part in the incident. When one of the
witnesses, Bankey (P. W., 30), was in the witness-box, the
learned Counsel for the accused put to him the following two
questions in cross-examination:
1. ” Did you state to the investigating officer that the
gang rolled the dead bodies of Natthi, Saktu and
880
Bharat Singh, and scrutinized them and did you tell him that
the face of Asa Ram resembled that of the deceased Bharat
Singh ?”
2. ” Did you state to the investigating officer about the
presence of the gas lantern ?”
In regard to the first question, the learned Sessions Judge
made the following note:
” The cross-examining Counsel was asked to show the law
which entitles him to put this question. He is unable to
show any law. 1, therefore, do not permit the question to be
put unless I am satisfied.”
In respect of the second question, the following note is
made:
” He is also unable to show any law entitling him to put
this question. I will permit him to put it if he satisfies
me about it.”
It appears from the deposition that no other question on
the basis of the statement made before the police was put to
this witness. After his evidence was closed, the learned
Judge delivered a considered order giving his reasons for
disallowing the said two questions. The relevant part of the
order reads:
“Therefore if there is no contradiction between his evidence
in Court and his recorded statement in the diary, the latter
cannot be used at all. If a witness deposes in Court that a
certain fact existed but had stated under section 161 Cr.
P. C. either that that fact had not existed or that the
reverse and irreconcilable fact had existed, it is a case of
conflict between the deposition in the Court and the
statement under section 161 Cr. P. C. and the latter can be
used to contradict the former. But if he had not stated
under section 161 anything about the fact, there is no
conflict and the statement cannot be used to contradict him.
In some cases an omission in the statement under section 161
may amount to contradiction of the deposition in Court; they
are the cases where what is actually stated is
irreconcilable with what is omitted and impliedly negatives
its existence.”
It is enough to notice at this stage that the learned
Sessions Judge did not by the said order rule that no.
881
omission in the statement made under s. 161 of the Code of
Criminal Procedure can be put to a witness, but stated that
only an omission which is irreconcilable with what is stated
in evidence can be put to a witness. The said two omissions
were not put to any of the other witnesses except to one to
whom only one of the said omissions was put. No other
omissions were put in the cross-examination either to P. W.
30 or to any other witness. The learned Sessions Judge on a
consideration of the voluminous evidence in the case held
that the guilt was brought home to the said two accused and
convicted them as aforesaid. Tahsildar Singh and Shyama
Mallah preferred two separate appeals to the High Court
against their convictions and sentences. The two appeals
were heard along with the reference made by the learned
Sessions Judge under s. 374 of the Code of Criminal
Procedure for the confirmation of the sentence of death
awarded to the appellants. The learned Judges of the High
Court, after reviewing the entire evidence over again,
accepted the findings of the learned Sessions Judge and con-
firmed the convictions and sentences passed on the
appellants. Before the High Court a petition was filed by
the appellants alleging that the learned Sessions Judge did
not allow the Counsel for defence to put omissions amounting
to material contradictions to the eye-witnesses and
therefore the said eye-witnesses should be summoned so that
the said questions might be put to them. That petition was
filed on May 1, 1957, and on July 30, 1957, after the
argument in the appeals was closed, the petition was
dismissed. Presumably, no attempt was made to press this
application either before the appeals were taken up for
argument or during the course of the argument; but the
question raised in the petition was considered by the earned
Judges of the High Court in their judgment. The judgment
discloses that the learned Counsel appearing for the
appellants argued before the High Court that the learned
Sessions Judge wrongly disallowed the aforesaid two
questions, and the learned Judges, conceding that those two
questions should have been allowed, held that the accused
882
were not prejudiced by the said fact. They justified their
conclusion by the following reasons:
“We did so because among other reasons we decided to ignore
these two circumstances and to base our findings on matters
of greater certainty, namely, the fact of the miscreants
firing while advancing, passing in front of Ram Swarup’s
platform and taking away Bankey’s gun from the cot,
movements which brought them close to the eye-witnesses and
thereby gave the witnesses an unmistakable opportunity of
seeing their faces in the light of the lanterns and the full
moon. These factors made recognition by witnesses
independent of any gas lantern or any scrutiny of the dead
bodies, so that these matters ceased to be of any real
consequence and therefore made the summoning of the eye-
witnesses before us quite unnecessary “. In the result, they
dismissed the appeals. The present appeal is by special
leave filed against the judgment of the High Court.
Learned Counsel for the appellants raised before us the
following points : (1) (a). Section 162 of the Code of
Criminal Procedure by its own operation attracts the
provisions of s. 145 of the Evidence Act and under the
latter section the whole vista of cross-examination on the
basis of the previous statement in writing made by the
witnesses before the police is open to the accused ; to
illustrate the contention: a witness can be asked whether he
made a particular statement before the police officers; if
he says ” yes “, the said assertion can be contradicted by
putting to him an earlier statement which does not contain
such a statement. (1) (b). The word ‘,contradiction ” is of
such wide connotation that it takes in all material
omissions and a Court can decide whether there is one such
omission as to amount to contradiction only after the
question ,is put, answered and the relevant statement or
part of it is marked, and, therefore, no attempt should be
made to evolve a workable principle, but the question must
be left at large to be decided by the Judge concerned on the
facts of each case. (2) The High Court erred in holding that
only two questions were intended to be put in cross-
examination to the prosecution
883
witnesses whereas the Advocate for the accused in. tended to
put to the witnesses many other omissions to establish that
there was development in the prosecution case from time to
time but refrained from doing so in obedience to the
considered order made by the learned Sessions Judge. (3)
Even if only two questions were illegally disallowed, as it
was not possible to predicate the possible effect of the
cross-examination of the- witnesses on the basis of their
answers to the said questions on their reliability, it
should be held that the accused had no opportunity to have
an effective cross-examination of the witnesses and there.
fore they had no fair trial. (4) The learned Judges
committed an illegality in testing the credibility of the
witnesses other than the witness who gave the first
information report by the contents of the said report.
The arguments of the learned Counsel for the respondent in
respect of each of the said contentions will be considered
in their appropriate places.
We shall proceed to consider the contentions of the learned
Counsel for the appellants in the order in which they were
addressed:
Re. (1) (a): Diverse and conflicting views were expressed by
Courts on the interpretation of s. 162 of the Code of
Criminal Procedure. A historic retrospect of the section
will be useful to appreciate its content. The earliest Code
is that of 1872 and the latest amendment is that of 1955.
Formerly Criminal Procedure Code for Courts in the
Presidency, towns and those in the mofussil were not the
same. Criminal Procedure Code, 1882 (10 of 1882),
consolidated the earlier Acts and prescribed a uniform law
to all Courts in India. It was superseded by Act 5 of 1898
and substantial changes were made by Act 18 of 1923. Since
then the Code stands amended from time to time by many other
Acts. The latest amendments were made by Act 26 of 1955
which received the assent of the President on August 10,
1955, and by notification issued by the Central Government
its provisions came into force on and from January 1, 1956.
We are not concerned in this case with the Amending Act of
1955, but only with the Act as it stood before the amendment
of 1955.
884
In Act 10 of 1872 the section corresponding to the present
s. 162 was s. 119, which read:
” An officer in charge of a Police-station, or other Police
officer making an investigation, may examine orally any
person supposed to be acquainted with the facts and
circumstances of the case, and may reduce into writing any
statement made by the person so examined.
Such person shall be bound to answer all questions relating
to such case, put him by such officer, other than questions
criminating himself.
No statement so reduced into writing shall be signed by the
person making it, nor shall it be. treated as part of the
record or used as evidence.”
This section enables a police officer to elicit information
from persons supposed to be acquainted with facts, and
permits him to reduce into writing the answers given by such
persons, but excludes the said statement from being treated
as part of the record or used as evidence. Act 10 of 1882
divided the aforesaid s. 119 into two sections and numbered
them as ss. 161 and 162, which read:
S. 161: ” Any Police-officer making an investigation under
this chapter may examine orally any person supposed to be
acquainted with the facts and circumstances of the case, and
may reduce into writing any statement made by the person so
examined.
Such person shall be bound to answer truly all questions
relating to such case put to him by such officer, other than
questions the answers to which would have a tendency to
expose him to a criminal charge or to a penalty or
forfeiture.”
S. 162: ” No statement, other than a dying declaration,
made by any person to a Police-officer in the course of an
investigation under this chapter shall, if reduced to
writing, be signed by the person making it, or be used as
evidence against the accused.
Nothing in this section shall be deemed to affect the
provisions of section 27 of the Indian Evidence Act, 1872.”
The first two paragraphs of s. 119 of Act 10 of 1872 with
slight modifications not relevant for the present
885
purpose constituted the corresponding paragraphs of s. 161
of Act 10 of 1882; and the third paragraph of s. 119 of the
-former Act, with some changes, was made s. 162 of the
latter Act. There was not much difference between the third
paragraph of s. 119 of the Act of 1872 and s. 162 of the Act
of 1882, except that in the latter Act, it was made clear
that the prohibition did not apply to a dying declaration or
affect the provisions of s. 27 of the Indian Evidence Act,
1872 The Code of 1898 did not make any change in s. 161, nor
did it introduce any substantial change in the body of s.
162 except taking away the exception in regard to the dying
declaration from it and putting it in the second clause of
that section. But s. 162 was amended by Act 5 of 1898 and
the amended section read :
” (1) No statement made by any person to a police-officer in
the course of an investigation under this Chapter shall, if
taken down in writing, be signed by the person making it,
nor shall such writing be used as evidence:
Provided that, when any witness is called for the
prosecution whose statement has been taken down in writing
as aforesaid, the Court shall, on the request of the
accused, refer to such writing, and may then, if the Court
thinks it expedient in the interests of justice, direct that
the accused be furnished with a copy thereof ; and such
statement may be used to impeach the credit of such witness
in manner provided by the Indian Evidence Act, 1872.
(2) Nothing in this section shall be deemed to apply to any
statement falling within the provisions of section 32,
clause (1), of the Indian Evidence Act, 1872.”
For the first time the proviso to s. 162 introduced new
elements, namely: (i) The right of the accused to request
the Court to refer to the statement of a witness reduced to
writing; (ii) a duty cast on the Court to refer to such
writing; (iii) discretion conferred on the Court in the
interests of justice to direct that the accused be furnished
with a copy of the statement; and (iv) demarcating the field
within which such
886
statements can be used, namely, to impeach the credit of the
witness in the manner provided by the Indian Evidence Act,
1872. From the standpoint of the accused, this was an
improvement on the corresponding sections of the earlier
Codes, for whereas the earlier Codes enacted a complete bar
against the use of such statements in evidence, this Code
enabled the accused, subject to the limitations mentioned
therein, to make use of then to impeach the credit of a
witness in the manner provided by the Indian Evidence Act.
On the basis of the terms of s. 162 of Act 5 of 1896, two
rival contentions were raised before the Courts. It was
argued for the prosecution that on the strength of s. 157 of
the Evidence Act, the right of the prosecution to prove any
oral statement to contradict the testimony of any witness
under that section was not taken away by s. 162 of the Code
of Criminal Procedure which only provided that the writing
shall not be used as evidence. On the other hand, it was
contended on behalf of the accused that when the statement
of a witness was admittedly reduced into writing, it would
be unreasonable to allow any oral evidence of the statement
to be given when the writing containing the statement could
not be proved. The judgment of Hosain, J., in the case of
Rustam v. King-Emperor (1) and the decisions in Fanindra
Nath Banerjee v. Emperor (2), King-Emperor v. Nilakanta (3)
and Muthukumaraswami Pillai v. King-Emperor ( (4) represent
one side of the question, and the judgment of Knox, J., in
Rustam v. King-Emperor (1) and the observations of Beaman,
J., in Emperor v. Narayan (5) represent the other side. A
division Bench of the Bombay High Court in Emperor v.
Hanmaraddi Bin Ramaraddi (6), after noticing the aforesaid
decisions on the question, ruled that the police officer
could be allowed to depose to what the witness had stated to
him in the investigation for the purpose of corroborating
what the witness had said at the trial. In that context,
Shah, J., observed at p. 66:
(1) (1970) 7 A L.J. 468.
(3) (1912) 35 Mad. 247.
(5) (1907) 32 Bo-. 111
(2) (1908) 36 Cal. 281
(4) (1912) 35 Mad. 397.
(6) (1915) 39 Bo-~- 58.
8S7
The point is not free from difficulty which is sufficiently
reflected in the diversity of judicial opinions, bearing on
the question.”
Presumably, in view of the aforesaid conflict, to make the
legislative intention clear the section was amended by Act
18 of 1923. Section 162 as amended by the aforesaid Act
reads:
” (1) No statement made by any person to a police-officer in
the course of an investigation under this Chapter shall, if
reduced into writing, be signed by the person making it; nor
shall any such statement or any record thereof, whether in a
police-diary or otherwise, or any part of such statement or
record, be used for any purpose (save as hereinafter
provided) at any inquiry or trial in respect of any offence
under investigation at the time when such statement was
made:
Provided that, when any witness is called for the
prosecution in such inquiry or trial whose statement has
been reduced into writing as aforesaid, the Court shall, on
the request of the accused, refer to such writing and direct
that the accused be furnished with a copy thereof, in order
that any part of such statement if duly proved, may be used
to contradict such witness in the manner provided by section
145 of the Indian Evidence Act, 1872. When any part of such
statement is so used, any part thereof may also be used in
the reexamination of such witness, but for the purpose only
of explaining any matter referred to in his cross-
examination:
Provided, further that, if the Court is of –opinion that
any part of any such statement is not relevant to the
subject-matter of the inquiry or trial or that its
disclosure to the accused is not essential in the interests
of justice and is inexpedient in the public interests, it
shall record such opinion (but not the reasons therefore)
and shall exclude such part from the copy of the statement
furnished to the accused.”
Sub-section (1) of the substituted section attempted to
steer clear of the aforesaid conflicts and avoid other
difficulties by the following ways: (a) Prohibited the use
of the statement, both oral and that reduced into
888
writing, from being used for any purpose at any inquiry or
trial in respect of any offence under investigation; (b)
while the earlier section enabled the accused to make use of
it to impeach the credit of a witness in the manner provided
by the Indian Evidence Act, 1872, the new section enabled
him only to use it to contradict the witness in the manner
provided by s. 145 of the said Act; (c) the said statement
could also be used for the purpose of only explaining any
matter referred to in his cross-examination; and (d) while
under the old section a discretion was vested in the Court
in the matter of furnishing the accused with a copy of an
earlier statement of a prosecution witness, under the
amended section, subject to the second proviso, a duty was
cast upon the Court, if a request was made to it by the
accused, to direct that the accused be furnished with a copy
thereof. The effect of the amendment was that the loopholes
which enabled the use of the statement made before the
police in a trial were plugged and the only exception made
was to enable the accused to use the statement of a witness
reduced into writing for a limited purpose, namely, in the
manner provided by s. 145 of the Indian Evidence Act, 1872,
and the prosecution only for explaining the matter referred
to in his cross examination. The scope of the limited use
also was clarified. Under the old section the statement was
permitted to be used to impeach the credit of a witness in
the manner provided by the Indian Evidence Act; under the
said Act, the credit of a witness could be impeached either
under s. 145 or under s. 155(3). While the former section
enables a witness to be cross-examined as to a previous
statement made by him in writing without such writing being
shown to him, the latter section permits the discrediting of
the witness by proof of his previous statement by
independent evidence. If a statement in writing could be
used to discredit a witness in the manner provided by those
two sections, the purpose of the Legislature would be
defeated. Presumably in realisation of this unexpected
consequence, the Legislature in the amendment made it clear
that the said statement can only be used to contradict a
889
witness in the manner provided by s. 145 of the Evidence
Act. By Act 2 of 1945, the following sub-section (3) was
added to s. 161:
” The police-officer may reduce into writing any statement
made to him in the course of an examination under this
section, and if he does so, he shall make a separate record
of the statement of each such person whose statement he
records.”
This subsection restored the practice obtaining before the
year 1923 with a view to discourage the practice adopted by
some of the police officers of taking a condensed version of
the statements of all the witnesses or a precise of what
each witness said. It is not necessary to notice in detail
the changes made in s. 162 by Act 26 of 1955, except to
point out that under the amendment the prosecution is also
allowed to use the statement to contradict a witness with
the permission of the Court and that in view of the
shortened committal procedure prescribed, copies of the
statements of the prosecution witnesses made before the
police during investigation are made available by the police
to the accused before the commencement of the inquiry or
trial. The consideration of the provisions of the latest
amending Act need not detain us, for the present case falls
to be decided tinder the Act as it stood before that
amendment.
It is, therefore, seen that the object of the legislature
throughout has been to exclude the statement of a witness
made before the police during the investigation from being
made use of at the trial for any purpose, and the amendments
made from time to time were only intended to make clear the
said object and to dispel the cloud cast on such intention.
The Act of 1898 for the first time introduced an exception
enabling the said statement reduced to writing to be used
for impeaching the credit of the witness in the manner
provided by the Evidence Act. As the phraseology of the
exception lent scope to defeat the purpose of the
legislature, by the Amendment Act of 1923, the section was
redrafted defining the limits of the exception with
precision so as to confine it only 112
890
to contradict the witness in the manner provided under s.
145 of the Evidence Act. If one could guess the intention
of the legislature in framing the section in the manner it
did in 1923, it would be apparent that it was to protect the
accused against the user of the statements of witnesses made
before the police during investigation at the trial
presumably on the assumption that the said statements were
not made under circumstances inspiring confidence. Both the
section and the proviso intended to serve primarily the same
purpose, i.e., the interest of the accused.
Braund, J., in Emperor v. Aftab Mohd. Khan (1) gave the
purpose of s. 162 thus at p. 299:
” As it seems to us it is to protect accused persons from
being prejudiced by statements made to police officers who
by reason of the fact that an investigation is known to be
on foot at the time the statement is made, may be in a
position to influence the maker of it and, on the other
hand, to protect accused persons from the prejudice at the
hands of persons who in the knowledge that an investigation
has already started, are prepared to tell untruths. ”
A division Bench of the Nagpur High Court in Baliram Tikaram
Marathe v. Emperor (2) expressed a similar idea in regard to
the object underlying the section,at p. 5, thus:
” The object of the section is to protect the accused both
against over-zealous police officers and untruthful
witnesses. ”
The Judicial Committee in Pakala Narayana Swami v. The King-
Emperor (3) found another object underlying -the section
when they said at p. 78:
“If one had to guess at the intention of the Legislature in
framing a section in the words used, one would suppose that
they had in mind to encourage the free disclosure of
information or to protect the person making the statement
from a supposed unreliability of police testimony as to
alleged statements or both.
Section 162 with its proviso, if construed in the
(1) A.I R. 1940 All. 291. (2) A.I.R. 1945 Nag. 1.
(3) (1939) L.R. 66 I. A. 66.
891
manner which we will indicate at the later stage of the
judgment, clearly achieves the said objects.
The learned Counsel’s first argument is based upon the words
” in the manner provided by s. 145 of the Indian Evidence
Act, 1872 ” found in s. 162 of the Code of Criminal
Procedure. Section 145 of the Evidence Act, it is said,
empowers the accused to put all relevant questions to a
witness before his attention is called to those parts of the
writing with a view to contradict him. In support of this
contention reliance is placed upon the judgment of this
Court in Bhagwan Singh v. The State of Punjab (1). Bose,
J., describes the procedure to be followed to contradict a
witness under s. 145 of the Evidence Act thus at p. 819:
” Resort to section 145 would only be necessary if the
witness denies that he made the former statement. In that
event, it would be necessary to prove that he did, and if
the former statement was reduced to writing, then section
145 requires that his attention must be drawn to those parts
which are to be used for contradiction. But that position
does not arise when the witness admits the former statement.
In such a case all that is necessary is to look to the
former statement of which no further proof is necessary
because of the admission that it was made. ”
It is unnecessary to refer to other cases wherein a similar
procedure is suggested for putting questions under s. 145 of
the Indian Evidence Act, for the said decision of this Court
and similar decisions were not considering the procedure in
a case where the statement in writing was intended to be
used for contradiction under s. 162 of the Code of Criminal
Procedure. Section 145 of the Evidence Act is in two parts:
the first part enables the accused to cross-examine a
witness as to previous statement made by him in writing or
reduced to writing to without such writing being shown to
him; the second part deals with a situation where the cross-
examination assumes the shape of contradiction : in other
words, both parts deal with cross-examination; the first
part with cross-examination other than by way of
contradiction, and the
(1) [1952] S.C.R. 812.
892
second with cross-examination by way of contradiction only.
The procedure prescribed is that, if it is intended to
contradict a witness 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. The proviso to s. 162 of the Code of Criminal
Procedure only enables the accused to make use of such
statement to contradict a witness in the manner provided by
s. 145 of the Evidence Act. It would be doing violence to
the language of the proviso if the said statement be allowed
to be used for the purpose of cross-examining a witness
within the meaning of the first part of s. 145 of the
Evidence Act. Nor are we impressed by the argument that it
would not be possible to invoke the second part of s. 145 of
the Evidence Act without putting relevant questions under
the first part thereof. The difficulty is more imaginary
than real. The second part of s. 145 of the Evidence Act
clearly indicates the simple procedure to be followed. To
illustrate: A says in the witness-box that B stabbed C ;
before the police he bad stated that D stabbed C. His
attention can be drawn to that part of the statement made
before the police which contradicts his statement in the
witness-box. If he admits his previous statement, no
further proof is necessary; if he does not admit, the
practice generally followed is to admit it subject to proof
by the police officer. On the other hand, the procedure
suggested by the learned Counsel may be illustrated thus: If
the witness is asked ” did you say before the police-officer
that you saw a gas light ? ” and he answers ” yes “, then
the statement which does not contain such recital is put to
him as contradiction. This procedure involves two
fallacies: one is it enables the accused to elicit by a
process of cross-examination what the witness stated before
the police-officer. If a police-officer did not make a
record of a witness’s statement, his entire statement could
not be used for any purpose, whereas if a police-officer
recorded a few sentences, by this process of cross-
examination, the witness’s oral statement could be brought
on record. This procedure,
893
therefore, contravenes the express provision of s. 162 of
the Code. The second fallacy is that by the illustration
given by the learned Counsel for the appellants there is no
self-contradiction of the primary statement made in the
witness-box, for the witness has yet not made on the stand
any assertion at all which can serve as the basis. The
contradiction, under the section, should be between what a
witness asserted in the witness-box and what he stated
before the police-officer, and not between what he said he
had stated before the police-officer and what he actually
made before him. In such a case the question could not be
put at all: only questions to contradict can be put and the
question here posed does not contradict it leads to an
answer which is contradicted by the police statement. This
argument of the learned Counsel based upon s. 145 of the
Evidence Act is, therefore, not of any relevance in
considering the express provisions of s. 162 of the Code of
Criminal Procedure.
This leads us to the main question in the case, i.e., the
interpretation of s. 162 of the Code of Criminal Procedure.
The cardinal rule of construction of the, provisions of a
section with a proviso is succinctly stated in Maxwell’s
Interpretation of Statutes, 10th Edn., at p. 162 thus:
” The proper course is to apply the broad general rule of
construction, which is that a section or enactment must be
construed as a whole, each portion throwing light if need be
on the rest.
The true principle undoubtedly is, that the sound
interpretation and meaning of the statute, on a view of the
enacting clause, saving clause, and proviso, taken and
construed together is to prevail.”
Unless the words are clear, the Court should not so construe
the proviso as to attribute an intention to the legislature
to give with one hand and take away with another. To put it
in other words, a sincere attempt should be made to
reconcile the enacting clause and the proviso and to avoid
repugnancy between the two.
As the words in the section declare the intention of the
legislature, we shall now proceed to construe the
894
section giving the words used therein their natural and
ordinary sense.
The object of the main section as the history of its
legislation shows and the decided cases indicate is to
impose a general bar against the use of statement made
before the police and the enacting clause in clear terms
says that no statement made by any person to a police
officer or any record thereof, or any part of such statement
or record, be used for any purpose. The words are clear and
unambiguous. The proviso engrafts an exception on the
general prohibition and that is, the said statement in
writing may be used to contradict a witness in the manner
provided by s. 145 of the Evidence Act. We have already
noticed from the history of the section that the enacting
clause was mainly intended to protect the interests of
accused. At the stage of investigation, statements of
witnesses are taken in a haphazard manner. The police-
officer in the course of his investigation finds himself
more often in the midst of an excited crowd and label of
voices raised all round. In such an atmosphere, unlike that
in a Court of Law, be is expected to hear the statements of
witnesses and record separately the statement of each one of
them. Generally he records only a summary of the statements
which appear to him to be relevant. These statements are,
therefore, only a summary of what a witness says and very
often perfunctory. Indeed, in view of the aforesaid facts,
there is a statutory prohibition against police officers
taking the signature of the person making the statement,
indicating thereby that the statement is not intended to be
binding on the witness or an assurance by him that it is a
correct statement.
At the same time, it being the earliest record of the
statement of a witness soon after the incident, any
contradiction found therein would be of immense help to an
accused to discredit the testimony of a witness making the
statement. The section was, therefore, conceived in an
attempt to find a happy via media, namely, while it enacts
an absolute bar against the statement made before a police-
officer being used for any purpose whatsoever, it enables
the accused to rely
895
upon it for a limited purpose of contradicting a witness in
the manner provided by s. 145 of the Evidence Act by drawing
his attention to parts of the statement intended for
contradiction. It cannot be used for corroboration of a
prosecution or a defence witness or even a Court witness.
Nor can it be used for contradicting a defence or a Court
witness. Shortly stated, there is a general bar against its
use subject to a limited exception in the interest of the
accused, and the exception cannot obviously be used to cross
the bar.
If the provisions of the section are construed in the
aforesaid back ‘ground, much of the difficulty raised
disappears. Looking at the express words used in tile
section, two sets of words stand out prominently which
afford the key to the intention of the legislature. They
are : ” statement in writing “, and ” to contradict “. ”
Statement ” in its dictionary meaning is the act of stating
or reciting. Prima facie a statement cannot take in an
omission. A statement cannot include that which is not
stated. But very often to make a statement sensible or
self-consistent, it becomes necessary to imply words which
are not actually in the statement. Though something is not
expressly stated, it is necessarily implied from what is
directly or expressly stated. To illustrate: ‘ A’ made a
statement previously that he saw ‘ B ‘ stabbing ‘ C ‘ to
death; but before the Court he deposed that he saw ‘B’
and ‘D’ stabbing ‘ C’ to death: the Court can imply the
word “only ” after ‘ B ‘ in the statement before the police.
Sometimes a positive statement may have a negative aspect
and a negative one a positive aspect. Take an extreme
example : if a witness states that a man is dark, it also
means that he is not fair. Though the statement made
describes positively the colour of a skin, it is implicit in
that statement itself that it is not of any other colour.
Further, there are occasions when we come across two
statements made by the same person at different times and
both of them cannot stand or co-exist. There is an inherent
repugnancy between the two and, therefore, if one is true,
the other must be false. On one occasion a person says
896
that when he entered the room, he saw ‘ A’ shooting ‘B’ dead
with a gun; on another occasion the same person says that
when he entered the room he saw ‘C’ stabbing ‘ B ‘ dead ;
both the statements obviously cannot stand together, for, if
the first statement is true, the second is false and vice
versa. The doctrine of recital by necessary implication,
the concept of the negative or the positive aspect of the
same recital, and the ‘principle of inherent repugnancy, may
in one sense rest on omissions, but, by construction, the
said omissions must be deemed to be part of the statement in
writing. Such omissions are not really omissions strictly
so called and the statement must be deemed to contain them
by implication. A statement, therefore, in our view, not
only includes what is expressly stated therein, but also
what is necessarily implied therefrom.
” Contradict ” according to the Oxford Dictionary means to
affirm to the contrary. Section 145 of the Evidence Act
indicates the manner in which contradiction is brought out.
The cross-examining Counsel shall put the part or parts of
the statement which affirms the contrary to what is stated
in evidence. This indicates that there is something in
writing which can be set against another statement made in
evidence. If the statement before the police-officer-in the
sense we have indicated-and the statement in the evidence
before the Court are so inconsistent or irreconcilable with
each other that both of them cannot co-exist, it may be said
that one contradicts the other.
It is broadly contended that a statement includes all
omissions which are material and are such as a witness is
expected to say in the normal course. This contention
ignores the intention of the legislature expressed in s. 162
of the Code and the nature of the non-evidentiary value of
such a statement, except for the limited purpose of
contradiction. Unrecorded statement is completely excluded.
But recorded one is used for a specified purpose. The
record of a statement, however perfunctory, is assumed to
give a sufficient guarantee to the correctness of the
statement made, but if words not recorded are brought in by
some fiction, the object of the section would be
897
defeated. By that process, if a part of a statement is
recorded, what was not stated could go in on the sly in the
name of contradiction, whereas if the entire statement was
not recorded, it would be excluded. By doing so, we would
be circumventing the section by ignoring the only safeguard
imposed by the legislature, viz., that the statement should
have been recorded.
We have already pointed out that under the amending Act of
1955, the prosecution is also allowed to use the statement
to contradict a witness with the permission of the Court.
If construction of the section as suggested by the learned
Counsel for the appellants be accepted, the prosecution
would be able to bring out in the cross-examination facts
stated by a witness before a police-officer but not recorded
and facts omitted to be stated by him before the said
officer. This result is not decisive on the question of
construction, but indicates the unexpected repercussions of
the argument advanced to the prejudice of the accused.
As s. 162 of the Code of Criminal Procedure enables the
prosecution in the reexamination to rely upon any part of
the statement used by the defence to contradict a witness,
it is contended that the construction of the section
accepted by us would lead to an anomaly, namely, that the
accused cannot ask the witness a Single question, which does
not amount to contradiction whereas the prosecution, taking
advantage of a single contradiction relied upon by the
accused, can reexamine the witness in regard to any matter
referred to in his cross-examination, whether it amounts to
a contradiction or not. I do not think there is any anomaly
in the situation. Section 145 of the Evidence Act deals
with cross-examination in respect of a previous statement
made by the witness. One of the modes of cross-examination
is by contradicting the witness by referring him to those
parts of the writing which are inconsistent with his present
evidence. Section 162, while confining the right to the
accused to cross-examine the witness in the said manner,
enables the prosecution to reexamine the witness to explain
113
898
the matters referred to in the cross-examination. This
enables the prosecution to explain the alleged contradiction
by pointing out that if a part of the statement used to
contradict be read in the context of any other part, it
would give a different meaning; and if so read, it would
explain away the alleged contradiction. We think that the
word ” cross-examination ” in the last line of the first
proviso to s. 162 of the Code of Criminal Procedure cannot
be understood to mean the entire gamut of cross-examination
without reference to the limited scope of the proviso, but
should be confined only to the cross-examination by
contradiction allowed by the said proviso.
The conflict of judicial opinion on this question is
reflected in the decisions of different High Courts in this
country. One of the views is tersely put by Burn J. in In
re Ponnusami Chetty (1) at p. 476:
“Whether it is considered as a question of logic or
language, ” omission ” and ” contradiction ” can never be
identical. If a proposition is stated, any contradictory
proposition must be a statement of some kind, whether
positive or negative. To ” contradict ” means to ” speak
against ” or in one word to ” gainsay “. It is absurd to say
that you can contradict by keeping silence. Silence may be
full of significance, but it is not ” diction “, and
therefore it cannot be ” contradiction
“Considering the provisions of s. 145 of the Evidence Act,
the learned Judge observed thus at p. 477:
” It would be in my opinion sheer misuse of words to say
that you are contradicting a witness by the writing, when
what you really want to do is to contradict him by pointing
out omissions from the writing. I find myself in complete
agreement with the learned Sessions Judge of Ferozepore who
observed that ” a witness cannot be confronted with the
unwritten record of an unmade statement “.”
The learned Judge gives an illustration of a case of
apparent omission which really is, a contradiction, i.e., a
case where a witness stated under s. 162 of the Code that he
saw three persons beating a man and later
(1) (1933) I.L.R. 56 Mad. 475.
899
stated in Court that four persons were beating the same man.
This illustration indicates the trend of the Judge’s mind
that he was prepared to treat an omission of that kind as
part of the statement by necessary implication. A Division
Bench of the ‘Madras High Court followed this judgment in In
re Guruva Vannan (1). In that judgment, Mockett, J., made
the following observation at p. 901 :
” I respectfully agree with the judgment of Burn, J., in
Ponnuswamy Chetty v. Emperor (2) in which the learned Judge
held that a statement under section 162 of the Code of
Criminal Procedure cannot be filed in order to show that a
witness is making statements in the witness box which he did
not make to the police and that bare omission cannot be a
contradiction. The learned judge points out that, whilst a
bare omission can never be a contradiction, a so-called
omission in a statement may sometimes amount to a contradic-
tion, for example, when to the police three persons are
stated to have been the criminals and later at the trial
four are mentioned.”
The Allahabad High Court in Ram Bali v. State expressed the
principle with its underlying reasons thus at p. 294:
” Witness after witness was cross-examined about certain
statements made by him in the deposition but not to be found
in his statement under s. 162, Criminal P. C. A statement
recorded by the police under s. 162 can be used for one
purpose and one purpose only and that of contradicting the
witness. Therefore if there is no contradiction between his
evidence in Court and his recorded statement in the diary,
the latter cannot be used at all. If a witness deposes in
Court that a certain fact existed but had stated under s.
162 either that fact had not existed or that the reverse and
irreconcilable fact had existed it is a case of conflict
between the deposition in the Court and the statement under
s. 162 and the latter can be used to contradict the former.
But if he had not stated under s. 162 anything about the
fact there is no conflict and the
(1) I.L.R. (1944) Mad. 897. (2) (1933) I L.R. 56 Mad. 475.
(3) A.I.R. 1952 All. 280.
900
statement cannot be used to contradict him. In some cases
an omission in the statement under s. 162 may amount to
contradiction of the deposition in Court ;they are the cases
where what is actually stated is irreconcilable with what is
omitted and impliedly negatives its existence.”
At a later stage of the judgment, the learned Judges laid
down the following two tests to ascertain whether a
particular omission amounts to contradiction: (i) an
omission is not a contradiction unless what is actually
stated contradicts what is omitted to be said; and (ii) the
test to find out whether an omission is contradiction or not
is to see whether one can point to any sentence or assertion
which is irreconcilable with the deposition in the Court.
The said observations are in accord with that of the Madras
High Court in In re Guruva Vannan (1). The Patna High Court
in Badri Chaudhry v. King-Emperor (2) expressed a similar
view. At p. 22, Macpherson, J., analysing s. 162 of the
Code of Criminal Procedure, after its amendment in 1923,
observed :
” The first proviso to section 162 (1) makes an exception in
favour of the accused but it is an exception most jealously
circumscribed under the proviso itself. ” Any part of such
statement ” which has been reduced to writing may in certain
limited circumstances be used to contradict the witness who
made it. The limitations are strict: (1) Only the statement
of a prosecution witness can be used; and (2) only if it has
been reduced to writing ; (3) only a part of the statement
recorded can be used ; (4) such part must be duly proved ;
(5) it must be a contradiction of the evidence of the
witness in Court; (6) it must be used as provided in s. 145,
Evidence Act, that is, it can only be used after the
attention of the witness has been drawn to it or to those
parts of it which it is intended to use for the purpose of
contradiction, and there are others. Such a statement which
does not contradict the testimony of the witness cannot be
proved in any circumstances and it is not permissible to use
the recorded statement as a whole to show that the witness
did not say something to the investigating officer.”
(1) I.L.R. (1944) Mad. 897.
(2) A.I.R. 1926 Pat. 20.
901
In Sakhawat v. Crown (1) much to the same effect was stated
at p. 284:
” The section (s. 162) provides that such statements can be
used only for the purpose of contradiction. Contradiction
means the setting up of one statement against another and
not the setting up of a statement against nothing at all.
An illustration would make the point clear. If a witness in
Court says ‘I saw A running away’ he may be contradicted
under section 162 by his statement to the police ‘I did not
see A running away’. But by proving an omission what the
learned Counsel contradicts is not the statement ‘I saw A
running away’ but the statement ‘I stated to the police that
I saw’ A running away’. As section 162 does not allow the
witness to depose ‘ I stated to the police that I saw A
running away ‘ it follows that there can be no basis for
eliciting the omission. Our argument is further fortified
by the use of the words ” any part of such
statement …………… may be used to contradict.” It is
not said that whole statement may be used. But in order to
prove an omission the whole statement has to be so used, as
has been done in the present case.”The contrary view is
expressed in the following proposition
” An omission may amount to Contradiction if the matter
omitted was one which the witness would have been expected
to mention and the Sub-Inspector to make note of in the
ordinary course. Every detail is expected to be noted.”
This proposition, if we may say so, couched in wide
phraseology enables the trial Judge to put into the mouth of
a witness things which he did not state at an earlier stage
and did not intend to say, oil purely hypothetical
considerations. The same idea in a slightly different
language was expressed by Bhargava and Sahai, JJ., in Rudder
v. The State (2) at p. 240:
” There are, however, certain omissions which amount to
contradictions and have been treated as such by this Court
as well as other Courts in this country. Those are
omissions relating to facts which
(1) I.L.R. (1937) Nag. 277.
(2) A.I.R. 1957 All. 239.
902
are expected to be included in the statement before the
police by a person who is giving a narrative of what ‘he
saw, on the ground that they relate to important features of
the incident about which the deposition is made.”
A similar view was expressed in Mohinder Singh v. Emperor
(1), Yusuf Mia v. Emperor (2), and State of M. P. v.
Banshilal Behari (3).
Reliance is placed by the learned Counsel for the appellants
on a statement of law found in ” Wigmore on Evidence “, Vol.
III, 3rd Edn., at p. 725. In discussing under the head ”
what amounts to a Self-contradiction “, the learned author
tersely describes a self-contradiction in the following
terms:
“………… it is not a mere difference of statement that
suffices; nor yet is an absolute oppositeness essential; it
is an inconsistency that is required.”
The learned author further states, at p. 733 :
” A failure to assert a fact, when it would have been
natural to assert it, amounts in effect to an assertion of
the non-existence of the fact.”
The said statement is no doubt instructive, but it cannot be
pressed into service to interpret the provisions of s. 162
of the Code of Criminal Procedure. In America, there is no
provision similar to s. 162 of the Code. It is not,
therefore, permissible, or even possible, to interpret the
provisions of a particular Act, having regard to stray
observations in a text-book made in a different context.
It is not necessary to multiply cases. The two conflicting
views may be briefly stated thus: (i) omissions, unless by
necessary implication be deemed to be part of the statement,
cannot be used to contradict the statement made in the
witness-box; and (ii) they must be in regard to important
features of the incident which are expected to be included
in the statement made before the police. The first
proposition not only carries out the intention of the
legislature but is also in accord with the plain meaning of
the words used in the section. The second proposition not
only stretches
(1) A.I.R. 1932 Lah. 103. (2) A.I.R. 1938 Pat. 579.
(3) A.I.R. 1936 M.P. 13.
903
the meaning of the word ” statement ” to a breaking point,
but also introduces an uncertain element, namely,
ascertainment of what a particular witness would have stated
in the circumstances of a particular case and what the
police officer should have recorded. When the section says
that the statement is to be used to contradict the
subsequent version in the witness-box, the proposition
brings in, by construction, what he would have stated to the
police within the meaning of the word ” statement “. Such a
construction is not permissible.
From the foregoing discussion the following propositions
emerge: (1) A. statement in writing made by a witness before
a police officer in the course of investigation can be used
only to contradict his statement in the witness-box and for
no other purpose; (2) statements not reduced to writing by
the police officer cannot be used for contradiction; (3)
though a particular statement is not expressly recorded, a
statement that can be deemed to be part of that expressly
recorded can be used for contradiction, not because it is an
omission strictly so-called but because it is deemed to form
part of the recorded statement; (4) such a fiction is
permissible by construction only in the following three
cases: (i) when a recital is necessarily implied from the
recital or recitals found in the statement ; illustration:
in the recorded statement before the police the witness
states that he saw A stabbing B at a particular point of
time, but in the witness-box he says that he saw A and C
stabbing B at the same point of time; in the statement
before the police the word ” only ” can be implied, i.e.,
the witness saw A only stabbing B; (ii) a negative aspect of
a positive recital in a statement; illustration: in the
recorded statement before the police the witness says that a
dark man stabbed B, but in the witness-box he says that a
fair man stabbed B; the earlier statement must be deemed to
contain the recital not only that the culprit was a dark
complexioned man but also that be was not of fair
complexion; and (iii) when the statement before the police
and that before the Court cannot stand together;
illustration: the witness says in the recorded
904
statement before the police that A after stabbing B ran away
by a northern lane, but in the Court he says that immediatly
after stabbing he ran away towards the southern lane; as he
could not have run away immediately after the stabbing,
i.e., at the same point of time, towards the northern lane
as well as towards the southern lane, if one statement is
true, the other must necessarily be false.
The aforesaid examples are not intended to be exhaustive but
only illustrative. The same instance may fall under one or
more heads. It is for the trial Judge to decide in each
case’ after comparing the part or parts of the statement
recorded by the police with that made in the witness-box, to
give a ruling, having regard to the aforesaid principles,
whether the recital intended to be used for contradiction
satisfies the requirements of law.
The next point is what are the omissions in the statement
before the police which the learned Sessions Judge did not
allow the accused to put to the witnesses for contradicting
their present version. The learned Counsel for the
appellants contends that the accused intended to put to the
witnesses the following omissions, but they did not do so as
the learned Sessions Judge disallowed the two questions put
to P. W. 30 and made a considered order giving his reasons
for doing so, and that the learned Counsel thought it proper
not to put the same questions or other questions in regard
to omissions to P. W. 30 or to the other witnesses that
followed him. The said omissions are: (1) The warning by
the members of the gang on their arrival to the audience at
the music party not to stir from their places; (2) the
presence of a gas lantern;(3) the chase of Bharat Singh by
the assailants; (4) the scrutiny of the dead bodies by the
gang; and (5) the return of the gang in front of the house
of Bankey. The learned Counsel for the respondent contests
this fact and argues that only two omissions, namely, the
presence of a gas-lantern and the scrutiny of the dead
bodies by the gang, were put in the cross-examination of P.
W. 30 and no other omissions were put to him or any other
witness, and that indeed the order
905
of the learned Sessions Judge did not preclude him from
putting all the omissions to the witnesses and taking the
decision of the Judge on the question of their
admissibility. He further contends that even before the
learned Judges of the High Court the Advocate for the
appellants only made a grievance of hi,,; not having been
allowed to put the aforesaid two omissions and did not argue
that he intended to rely upon other omissions but did not do
so as he thought that the learned Sessions Judge would
disallow them pursuant to his previous order. Before the
High Court an application was filed for summoning eight eye-
witnesses on the ground that the learned Sessions Judge did
not allow the Counsel for defence to put the omissions
amounting to material contradiction to them, but no mention
was made in that application of the number of omissions
which the accused intended to put to the eye-witnesses if
they were summoned. That application was filed on May 1,
1957, but no attempt was made to get a decision on that
application before the arguments were heard. Presumably,
the Court as well as the parties thought that the
application could more conveniently be disposed of after
hearing the arguments. On July 30, 1957) 1 after the
appellants were fully heard, that application was dismissed
and the detailed reasons for dismissing it were given in the
judgment, which was delivered on September 11, 1957. The
judgment of the learned Judges of the High Court clearly
indicates that what was argued before them was that two
omissions sought to be put to P. W. 30 were disallowed and
therefore the accused did not put the said omissions to the
other witnesses. It was not contended on behalf of the
accused that other omissions were intended to be used for
contradiction, but were not put to the witnesses as the
Advocate thought that in view of the order of the learned
Sessions Judge they would not be allowed automatically. The
learned Judges held that the said two omissions amounted to
material contradiction and that the learned Sessions Judge
was wrong in disallowing them, but they ignored those
114
906
two circumstances and based their findings on matters of
greater certainty. If really the Judges had made a mistake
in appreciating the arguments of the learned Counsel for the
appellants in the context of omissions, one would expect the
accused to mention the said fact prominently in their
application for special leave. Even if they omitted to
mention that fact in the application for special leave, they
could have filed an affidavit sworn to by the Advocate, who
appeared for them before the learned Judges of the High
Court, mentioning the fact that in spite of the argument
specifically directed to the other omissions the learned
Judges by mistake or over-sight failed to notice that
argument. The learned Counsel who argued before us did not
argue before the High Court, and, therefore, obviously he is
not in a position to assert that the Judges committed a
mistake in omitting to consider the argument advanced before
them. But he made strenuous attempts before us to persuade
us to hold that there must have been a mistake. He would
say that the learned Counsel had in fact relied upon all the
aforesaid omissions in support of his contention that there
was development of the case of the prosecution from time to
time and therefore he must have also relied upon the said
omissions in the context of the statements made under s. 162
of the Code of Criminal ‘Procedure; on the other hand, the
fact that the learned Judges considered all the alleged
omissions in connection with the said contention and only
considered two omissions in regard to the contention based
on s. 162 of the Code is indicative of the fact that the
learned Counsel, for reasons best known to him, did not
think fit to rely upon all the alleged omissions. The
deposition of P.W. 30 also shows that only two omissions in
the statement before the police, viz., the existence of a
gas-lantern and the scrutiny of the dead bodies by the gang,
were put to him in cross-examination and the learned
Sessions Judge disallowed those questions on the ground that
the learned Counsel was not able to `how any law entitling
him to put the said questions. Though the witness was exa-
mined at some length no other alleged omissions in
907
the statement before the police were sought to be put to
him. It would be seen from the short order made by the
learned Sessions Judge at the time each one of the two
questions were put, that the learned Sessions Judge did not
give a general ruling that no omissions in a statement
before the police could be put to a witness. The rulings
were given, having regard to the nature of the omissions
relied upon. But after the entire evidence of P. W. 30 was
closed, the learned Sessions Judge gave a considered order.
Even in that order, he did not rule out all omissions as
inadmissible, but clearly expressed the view that if what
was stated in the witness-box was irreconcilable with what
was omitted to be stated in the statement, it could go in as
material contradiction. Even after this order, it was open`
to the appellants to bring out all such omissions, but no
attempt was made by them to do go. These circumstances also
support the impression of the learned Judges of the High
Court that what was argued before them was only in respect
of the two specified omissions put to P. W. 30 in his cross-
examination. We, therefore, hold that only two omissions
relating to the existence of the gas-lantern and the
scrutiny of the faces of the deceased by the appellants were
put to P. W. 30 and were intended to be put to the other
witnesses, but were not so done on the basis of the ruling
given by the Court.
Would those two omissions satisfy the test laid down by us ?
The witness stated in the Court that there was a gas-lamp
and that some of the miscreants scrutinised the faces of the
dead bodies. In their statements before the police they did
not mention the said two facts and some of the witnesses
stated that there were lanterns. Taking the gas-lamp first:
the scene of occurrence was not a small room but one spread-
over from the well to Bankey’s house. From that omission in
the statement it cannot necessarily be implied that there
was no gas-lamp in any part of the locality wherein the
incident took place; nor can it be said that, as the
witnesses stated that there were lanterns, they must be
deemed to have stated that there was no gas-lamp, for the
word ” lantern is
908
comprehensive enough to take in a gas-lantern. It is also
not possible to state that the statements made before the
police and those made before the Court cannot co-exist, for
there is no repugnancy between the two, as even on the
assumption that lantern excludes a gas-lantern, both can
exist in the scene of occurrence. The same can be said also
about the scrutiny of the faces of the dead bodies. In the
statements before the police, the movements of the appel-
lants were given. It was stated that they shot at the
people and decamped with the gun of Bharat Singh. The
present evidence that in the course of their pursuit, they
looked at the faces of two of the dead bodies does not in
any way contradict the previous versions, for the said
incident would fit in with the facts contained in the
earlier statements. The appellants could have shot at the
audience, pursued them, taken the gun of Bharat Singh and on
their way scrutinised the dead bodies. The alleged omission
does not satisfy any of the principles stated by us.
In this view, it is unnecessary to express our opinion on
the question whether, if the said two omissions amounted to
contradiction within the meaning of s. 162 of the Code of
Criminal Procedure, the appellants were in any way
prejudiced in the matter of their trial.
The last contention of the learned Counsel for the
appellants is that the learned Judges of the High Court
acted illegally in testing the veracity of the witnesses
with reference to the contents of the first information
report. A perusal of the judgment of the High Court shows
that the Advocate for the appellants contended before them,
inter alia, that the witnesses should not be believed as
their present version was inconsistent with the first
information report. The learned Judges assumed that the
said process was permissible and even on that assumption
they rejected the plea of the learned Counsel for the
appellants that there was improvement in the prosecution
case. The learned Judges were really meeting the argument
of the learned Counsel for the appellants. It is idle to
suggest that they erred in law in relying upon the first
infor-
909
mation report to discredit the witnesses for the simple
reason that they accepted the evidence in spite of some
omissions in the first information report.
In the result, we confirm the judgment of the High Court and
dismiss the appeal.
HIDAYATULLAH, J.-The judgment which I am delivering has been
prepared by my learned brother, Imam, J. and myself
We agree that the appeal be dismissed but would express in
our own words the grounds upon which it should be dismissed.
The main contention advanced on behalf of the appellants was
as follows: There was no fair trial of the appellants as
they had been deprived of the right of cross-examination of
the prosecution witnesses with reference to their statements
made to the police during the police investigation. The
trial Judge had disallowed two questions in this respect,
and the lawyer for the appellants regarded the decision of
the learned Judge as one which prevented him from putting
further questions with respect to other matters concerning
the police statements of the witnesses. The order of the
learned Judge had to be respected. The order of the learned
Judge was illegal, as on a proper interpretation of the
provisions of s. 162 of the Code of Criminal Procedure, the
appellants were entitled not only to put the two questions
which were ruled out, but also questions with respect to
other matters arising out of the police statements of the
witnesses. The purpose of cross-examination is to test the
reliability of the witnesses both as to what they had to say
about the occurrence itself and concerning their
identification of those who had participated in it. There
were several matters with respect to which, if questions had
been allowed to be put, an effective -cross-examination
might have resulted and enabled the appellants to persuade
the trial Judge to hold that the witnesses were entirely
unreliable. In a case of this kind in which the appellants
were involved, there were only two principal questions which
were of vital importance: (1) how far the witnesses had
improved their
910
story in their evidence in Court from what they had said to
the police concerning the occurrence, and (2) the existence
of opportunity and sufficient light to enable proper
identification.
It may be assumed, although it has been a matter of
controversy, that the order of the trial Judge disallowing
the two questions which were put was understood by the
lawyer for the defence to mean that all similar questions in
the nature of omissions in the police statements with
respect to matters stated in Court would be disallowed and
therefore no attempt was made to put further questions to
the witnesses in this respect.
Unfortunately, the lawyer for the defence had not in this
particular case laid any adequate foundation upon which the
two questions, which were ruled out, could have been
properly put. From that point of view, the order of the
trial Judge in disallowing those questions was not improper.
It could not, therefore, be said that the trial Judge had
done anything which could be rightly characterised as
infringement of the provisions of s. 162 of the Code of
Criminal Procedure or of the Indian Evidence Act, or even of
the rules of natural justice.
Johari Chowkidar had reported the occurrence to the police
station, which was a brief statement. Certain matters were,
however, definitely mentioned the names of the persons
recognised in the occurrence, the number of persons killed
and injured, the taking away of a gun which was with Bharat
Singh, Bankey Kumhar firing his gun at the culprits in such
a manner that some of them must have been injured, and the
existence of light from the moon and lantern. The principal
comment had been that in this report there was no mention of
the culprits having advanced from the well towards the open
place where villagers had gathered to hear the music. On
the contrary, the first information report indicated that
the firing was done from the parapet of the well. It is
clear, however, from Johari’s statement that the culprits
had taken away the gun which was with Bharat Singh. This
could only have been done if the culprits had
911
advanced from the well to the place where the villagers had
assembled.
It was then commented that in the first information report
the culprits were said to have come from the southern lane,
while in Court the evidence was that they had come to the
well from the eastern lane. The discrepancy is a minor one.
Joliari must have been concerned with reporting the first
firing from the well, and he might have mistaken the actual
direction from which the culprits had approached the well.
Johari’s statement made no mention of the culprits uttering
any warning that no one was to run away as they advanced
from the well, whereas in Court the witnesses spoke to that
effect. This was a detail which Johari might not have
considered to be of sufficient importance, as he was anxious
to make a bare statement in order to get the police to
proceed to the place of occurrence as quickly as possible.
Johari’s statement also makes no mention of the culprits
examining the bodies of the dead and examining their faces
and exclaiming that Asa Ram, one of the men whom they wished
to kill, had been killed. Here again, this was a matter of
detail which Johari might not have considered necessary to
mention. The first information report made no mention of
the existence of gas light. It did, however, mention the
existence of light of lantern and existence of moonlight.
The existence of light from lantern and the full moon
obviously was sufficient to recognise known persons. It is
in evidence that the appellants were known for several years
to the witnesses who had identified them as participants in
the occurrence. It could not be said with absolute
certainty that the mention of the existence of light of
lantern excluded the existence of gas light. The statement
of Johari gives clear indication that the culprits did not
remain all the time at the well, because they must have
advanced to take away the gun which was with Bharat Singh.
The culprits must have stayed at the place of occurrence for
some time to enable Bankey Kumhar to fire his gun at them
and to convey to Johari’s mind the certainty that some of
the culprits must have been injured. Reference is made only
to
912
some of the details and not to all the discrepancies pointed
out in order to determine whether the alleged improvement in
the story of the witnesses in Court from what they are
alleged to have stated to the police was with reference to
vital matters, which went to the root of the prosecution
case.
It is apparent from what has been stated above that even if
the defence had been allowed to put questions concerning
these alleged omissions in the statements of the witnesses
to the police, it could not have made their evidence in
Court unreliable with respect to any material particular
concerning the occurrence or the identification of the
accused.
From the above, it seems to us that there is no merit in the
appeal. As, however, considerable argument has been made
concerning the right of cross. examination and as to how the
provisions of s. 162 of the Code of Criminal Procedure
should be construed, it becomes necessary to consider the
submissions of the learned counsel for the appellants.
The provisions of the Code of. Criminal Procedure of 1861
and 1872 have been referred to by our learned brother, Subba
Rao, J. Section 162 of the Code of 1872 made it clear that
except for a dying declaration and matters coming within the
provisions of s. 27 of the Indian Evidence Act of 1872, no
statement of any person made to a police officer in the
course of in. vestigation, if reduced into writing, could be
used as evidence against the accused. There was no restric-
tion as to the extent of the right of an accused to cross-
examine a prosecution witness concerning his statement to
the police. Section 162 of the Code of 1898 prohibited the
use of a statement reduced into writing, as evidence except
any statement falling within the provisions of s. 32 of the
Indian Evidence Act, 1872. The proviso to this section,
however, expressly stated that in spite of the prohibition
in the main provision, the accused could use such a state-
ment to impeach the credit of the witnesses in the manner
provided in the Indian Evidence Act of 1872. It will be
seen therefore that until 1898 there was no restriction,
imposed upon the accused as to the extent
913
of his right of cross-examination. As s. 162 of the Code of
1898 entirely prohibited the use of the statement reduced
into writing as evidence, the proviso to it safeguarded the
right of the accused to impeach the credit of such witness
in the manner provided in the Indian Evidence Act, 1872.
Under the Indian Evidence Act, a witness’s credit can be
impeached under ss. 145 and 155 of that Act. The manner in
which the provisions of these sections could be utilized to
impeach the credit of a witness covers a wide field. If,
however, it was intended to contradict a witness concerning
his previous statement reduced into writing, then the
provisions of s. 145 require that those parts of the writing
by which it was sought to contradict the witness must be
shown to him. There can, be no doubt that the provisions of
the Code from 1861 to 1898 in no way curbed the right of
cross-examination on behalf of the accused. The provisions
were intended to protect the accused in that no statement of
a witness to the police reduced into writing could be used
as evidence against him, but the right to cross-examine the
witness to the fullest extent in accordance with the
provisions of the Indian Evidence Act in order to show that
he was unreliable, remained unaffected. The real question
for consideration is whether the amendment of the Code in
1923 brought about such a radical change in the provisions
of s. 162 of the Code as to suggest that the Legislature had
taken a retrograde step, and had intended to deprive the
accused of the right of cross-examination of prosecution
witnesses concerning their police statements except in one
restricted particular, namely, to make use of the statements
reduced into writing to contradict the witnesses in the
manner provided by s. 145 of the Indian Evidence Act.
The provisions of s. 162 of the Code of 1898 were amended in
1923 in the hope that the amendment would resolve the
various doubts which had sprung up as the result of
divergent judicial opinions as to the meaning of these
Provisions. The provisions of s. 162 of the Code of 1898
had been variously construed,
115
914
and the amendment in 1923 has not improved matters. The
amended section still remains difficult to construe. We
shall endeavour now to construe it.
Under s. 161 of the Code, the police officer may examine
orally any person supposed to be acquainted with the facts
and circumstances of the case. He may also reduce into
writing any statement made to him in the course of such
examination, and if he does so, he must make a separate
record of the statement of
each such person.
The legislature has, however, put restrictions upon the use
of such statements at the inquiry or trial of the offence.
The first restriction is that no statement made by any
person to a police officer, if reduced into writing, be
signed by the person making it. The intention behind the
provision is easy to understand. The legislature probably
thought that the making of statements by witnesses might be
thwarted, if the witnesses were led to believe that because
they had signed the statements they were bound by them, and
that whether the statements were true or not, they must
continue to stand by them. The legislature next provides
that a statement, however recorded, or any part of it shall
not be used for any purpose (save as provided in the
sections at the inquiry or trial in respect of any offence
under investigation at the time such statement is wade. The
object here is not easily discernible, but perhaps is to
discourage over-zealous police officers who might otherwise
exert themselves to improve the statements made before them.
The Privy Council considered the intention to be:
” If one had to guess at the intention of the legislature in
framing a section in the words used, one would suppose that
they had in mind to encourage the free disclosure of the
information or to protect the person making the statement
from a supposed unreliability of police testimony as to
alleged statements or both.”
It is possible that the legislature had also in mind that
the use of statements made under the influence of the
investigating agency might, unless restricted to a use for
the benefit of the accused, result in considerable
915
prejudice to him. But whatever the intention which led to
the imposition of the restrictions, it is manifest that the
statements, however recorded, cannot be used except to the
extent allowed by the section. The prohibition contained in
the words “any purpose” is otherwise absolute.
Then follow two provisos. The first gives the right to the
accused to make use of the statements for contradicting a
witness for the prosecution in the manner provided by s. 145
of the Indian Evidence Act. It also gives a right to the
prosecution to use the statement for purposes of
reexamination of the same witness but only to explain any
matter referred to in the cross-examination of the witness.
The first proviso, when analysed, gives the following
ingredients:
(i) A prosecution, witness Is called for the prosecution ;
(ii) whose statement has previously been reduced to writing;
(iii) The accused makes a request
(iv) The accused is furnished with a copy of the previous
statement;
(v) In order that any part of such statement, if duly
proved, may be used to contradict such witness in the manner
provided by s. 145 of the Indian Evidence Act.
If the a accused exercises the right in (v) above in any
instance, then the prosecution has the right to use the
statement in the reexamination of the witness but only to
explain any matters referred to by him in cross-examination.
Section 145 of the Indian Evidence Act reads:
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.”
916
The section analysed, gives the following result:
(1) Witnesses can be cross-examined as to previous
statements in writing or reduced into writing;
(2) These writings need not be shown to the witnesses or
proved beforehand;
(3) But if the intention is to contradict them by the
writings,
(a) their attention must be drawn to those parts which are
to be used for contradiction ;
(b) This should be done before proving the writings.
Our learned brother, Subba Rao, J., restricts the use by the
accused of the previous statements to the mechanism of
contradiction as detailed in (3) above, but says that the
accused has no right to proceed under (1) and (2). He
deduces this from the words of s. 162 of the Code of
Criminal Procedure, where it is provided :
” in order that any part of such statement, if duly proved,
may be used to contradict such witness in the manner
provided by section 145 of the Indian Evidence Act, 1872.”
The fact that the accused can use the previous statement for
the purpose of contradicting, shows that the previous
statement cannot be used for corroborating the witness.
Also there must be some basis for contradicting. This may
arise, because of there being a contrary statement,
irreconcilable statement or even material omissions. The
accused can establish a contradiction by cross-examining the
witness but only so as to bring out a contradiction and no
more. We regret we cannot agree (and we say this with pro-
found respect) that the accused is not entitled to cross-
examine but only to contradict. In our opinion, the
reference to s. 145 of the Indian Evidence Act brings in the
whole of the manner and machinery of s. 145 and not merely
the second part. In this process, of course, the accused
cannot go beyond s. 162 or ignore what the section prohibits
but cross-examination to establish a contradiction between
one statement and another is certainly permissible.
This question loses much of its importance when
917
there are patent contradictions and they can be put to the
witness without any cross-examination as in the two
statements:
(a) I saw A hit B.
(b) I did not see A hit B.
But there are complex situations where the contradiction is
most vital and relevant but is not so patent., There are
cases of omissions on a relevant and material point. Let us
illustrate our meaning by giving two imaginary statements:
(a) When I arrived at the scene I saw that X was running away,
chased by A and B who caught him.
(b) When I arrived at the scene I saw X take out a dagger from
his pocket, stab D in his chest and then take to his heels.
He was chased by A and B who caught him.
There is an omission of two facts in the first statement,
viz., (a) X took out a dagger from his pocket, and (b) he
stabbed D in the chest. These two statements or their
omission involve a contradiction as to the stage of the
occurrence, when the observation of the witness began.
What s. 145 of the Indian Evidence Act provides is that a
witness may be contradicted by a statement reduced into
writing and that is also the use to which the earlier
statement can be put under s. 162 of the Code of Criminal
Procedure. When some omissions occur, there is
contradiction in one sense but not necessarily on a relevant
matter. The statements of witnesses may and do comprise
numerous facts and circumstances, and it happens that when
they are asked to narrate their version over again, they
omit some and add others. What use can be made of such
omissions or additions is for the accused to decide, but it
cannot be doubted that some of the omissions or additions
may have a vital bearing upon the truth of the story given.
We do not think that by enacting s. 162 in the words used,
the legislature intended a prohibition of cross-examination
to establish which of the two versions is an authentic one
of the events as seen by the witness. The use of the words”
reexamination and ” cross-examination ” in the same
918
proviso shows that cross-examination is contemplated or in
other words, that the manner of contradiction under s. 145
of the Indian Evidence Act comprises both cross-examination
and contradiction. Indeed, the second part is only the
final stage of the contra-
diction,which includes the earlier stages. Reexamination is
only permissible where there is cross-examination.
It must not be overlooked that the cross-examination must be
directed to bringing out a contradiction between the
statements and must not subserve any other purpose. If the
cross-examination does anything else, it will be barred
under s. 162, which permits the use of the earlier statement
for contradicting a witness and nothing else. Taking the
example given above, we do not see why cross-examination may
not be like this:
Q. I put it to you that when you arrived on the scene X
was already running away and you did not actually see him
stab D as you have deposed to-day ?
A. No. I saw both the events.
Q. If that is so, why is your statement to the police
silent as to stabbing ?
A. I stated both the facts to the police.
The witness can then be contradicted with his previous
statement. We need hardly point out that in the
illustration given by us, the evidence of the witness in
Court is direct evidence as opposed to testimony to a fact
suggesting guilt. The statement before the police only be
called circumstantial evidence of, complicity and not direct
evidence in the strict sense.
Of course, if the questions framed were:
Q. What did you state to the police ? or
Q. Did you state -to the police that D stabbed X ?
They may be ruled out as infringing s. 162 of the Code of
Criminal Procedure, because they do not set tip a
contradiction but attempt to get a fresh version from the
witnesses with a view to contradicting him. How the cross-
examination can be made must obviously vary from case to
case, counsel to counsel and statement to statement. No
single rule can be laid down and the propriety of the
question in the light of
919
the two sections can be found only when the facts and
questions are before the Court. But we are of opinion that
relevant and material omissions amount to vital
contradictions, which can be established by cross-
examination and confronting the witness with his previous
statement.
The word ” contradict ” has various ‘Meanings, and in the
Oxford English Dictionary it is stated as ” To be contrary
to in effect, character, etc. ; to be directly opposed to go
counter to, go against ” as also ” to affirm the contrary
of; to declare untrue or erroneous; to deny categorically ”
and the word ” contradiction ” to mean ” A state or
condition of opposition in things compared ; variance;
inconsistency, contrariety “. In Shorter Oxford English
Dictionary, ” contradict ” is said to mean “To speak
against; to oppose in speech ; to forbid ; to oppose; to
affirm the contrary of; to declare untrue or erroneous; to
deny to be contrary to go counter to and go against and ”
contradiction ” to mean ” A state of opposition in things
compared; variance; inconsistency”. The meaning given to
the words ,contradict ” and ” contradiction ” in these
Dictionaries must at least include the case of an omission
in a previous statement which by implication amounts to
contradiction and therefore such an omission is a matter
which is covered by the first proviso to s. 162 and
questions in cross. examination can be put with respect to
it in over to contradict the witness. It is difficult to
say as an inflexible rule that any other kind of omission
cannot be put to a witness in order to contradict him, when
the proper foundation had been laid for putting such
questions. The words ” to contradict him ” appearing in s.
145 of the Evidence Act must carry the same meaning as the
words ” to contradict such witness ” in s. 162 of the Code.
In a civil suit, where the provisions of s. 162 of the Code
of Criminal Procedure have no application, would it be
correct to say that only questions concerning omissions of
the kind suggested by our learned brother could be put and
none other ? We cannot see why a question of the nature of
cross-examination regarding an omission with respect to a
920
matter which the witness omitted to make in his previous
statement and which, if made, would. have been recorded,
cannot be put. The facts and circumstances of each case
will determine whether any other kind of omission than that
referred to by our learned brother could be put to a witness
in order to contradict him. It would be for the Judge to
decide in each case whether in the circumstances before him
the question could be put. The purpose of cross-examination
is to test the veracity of the statement made by a witness
in his examination-in-chief as also to impeach his credit.
Not only is it the right of the accused to shake the credit
of a witness, but it is also the duty of the Court trying an
accused to satisfy itself that the witnesses are reliable.
It would be dangerous to lay down any hard and fast rule.
We pause to look at the matter from another angle. We shall
assume that the interpretation which the State claims should
be put upon s. 162(1) is correct and compare the respective
rights of the accused and the prosecution. According to
this interpretation, the accused has no right of cross-
examination in respect of the contradiction. This means
that no question can be put about the previous statement but
only the part in which there is a contradiction can be
brought to the witness’s notice and his explanation, if any,
obtained. In other words, there is only ” contradiction ”
and no more. But when the accused has used the statement to
contradict the witness-it may be only on one point-what are
the rights of the prosecution ? The prosecution can use any
part of the statement in the reexamination not only to
explain the I contradiction’ but also to explain any matter
referred to in the cross-examination of the witness.
If I contradiction ‘ does not include the right of cross-
examination, the right of the prosecution must necessarily
extend to reexamination in respect of any other matter
needing explanation in the cross-examination at large.
Thus, the accused cannot ask a single question of the nature
of cross-examination but because he sets up a I
contradiction’ in the narrow sense, the prosecution can
range all over the previous
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statement and afford the witness a chance of explaining any
matter in his cross-examination by re-examining him which
right includes the possibility of asking leading questions
with the permission of the Court.
Thus, the accused makes a I contradiction’ at his own peril.
By making a single I contradiction’, the accused places the
entire statement in the hands of the prosecution to explain
away everything with its assistance. One wonders if the
legislature intended such a result, for it is too great a
price for the accused to pay for too small a right.
Fortunately, that is not the meaning of s. 162 of the Code
of Criminal Procedure, and it is not necessary to read the
word ” cross-examination ” in the proviso in a sense other
than what it has.
The right of both the accused and the prosecution is limited
to contradictions. It involves cross. examination by the
accused as to that contradiction within s. 145 of the Indian
Evidence Act and reexamination in relation to the matters I
referred to in the cross-examination of the witness’. The
prosecution cannot range at will to explain away every dis-
crepancy but only such as the accused under his right has
brought to light. In our opinion, reading the section in
this way gives effect to every part and does not lead to the
startling and, if we may say so, the absurd results which we
have endeavoured to set out above.
The question may be asked, how is there to be a cross-
examination about a previous statement ? It is difficult to
illustrate one’s meaning by entering into such an
exposition. Any one interested to see the technique is
invited to read Mrs. Maybrick’s trial in the Notable English
Trials (1912) at pages 77-79, the trial of William Palmer,
pages 35,36, 50-51. Examples will be found in every leading
trial. The question is, did the legislature intend giving
this right ? In our opinion, the legislature did and for the
very obvious reason that it gave the prosecution also a
chance to re-examine the witness, to explain I any matter
referred to in the cross-examination of the witness.
116
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We respectfully do not agree that the section should be
construed in the way our learned brother has construed it.
Though we agree as to the result, our opinion cannot be left
unexpressed. If the section is construed too narrowly, the
right it confers will cease to be of any real protection to
the accused, and the danger of its becoming an impediment to
effective cross-examination on behalf of the accused is
apparent.
This brings us to the consideration of the questions, which
were asked and disallowed. These were put during the cross-
examination of Bankey, P. W. 30. They are:
Q. Did you state to the investigating officer that the
gang rolled the dead bodies of Nathi, Saktu and Bharat Singh
and scrutinized them, and did you tell him that the face of
Asa Ram resembled that of the deceased Bharat Singh ?
Q. Did you state to the investigating officer about the
presence of the gas lantern ?
These questions were defective, to start with. They did
riot set up a contradiction but attempted to obtain from the
witness a version of what he stated to the police, which is
then contradicted. What is needed is to take the statement
of the police as it is, and establish a contradiction
between that statement and the evidence in Court. To do
otherwise is to transgress the bounds set by s. 162 which,
by its absolute prohibition, limits even cross-examination
to contradictions and no more. The cross-examination cannot
even indirectly subserve any other purpose. In the
questions with which we illustrated our meaning, the witness
was not asked what he stated to the police,. but was told
what he had stated to the police and asked to explain the
omission. It is to be borne in mind that the statement made
to the police is I duly proved’ either earlier or even later
to establish what the witness had then stated.
In our opinion, the two questions were defective for the
reasons given here, and were properly ruled out, even,
though all the reasons given by the Court may not stand
scrutiny. The matter was not followed up
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with proper questions, and it seems that similar questions
on these and other points were not put to the witness out of
deference (as it is now suggested) to the ruling of the
Court. The accused can only blame themselves, if they did
not.
The learned Judges of the High Court ruled out from their
consideration that these two circumstances made it possible
for the witnesses to recognise the accused, but hold that
there was ample opportunity even otherwise for the witnesses
to do so. The High Court was justified in so doing, and
there being ample evidence on which they could come to the
conclusion that the witnesses had, in fact, recognised the
accused, it must inevitably be regarded as one of fact in
regard to which this Court does not interfere.
Since no other point was argued, the appeal must fail, and
we agree that it be dismissed.
Appeal dismissed.