{"id":36563,"date":"1959-05-05T00:00:00","date_gmt":"1959-05-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/tahsildar-singh-and-another-vs-the-state-of-uttar-pradesh-on-5-may-1959"},"modified":"2017-08-02T03:13:28","modified_gmt":"2017-08-01T21:43:28","slug":"tahsildar-singh-and-another-vs-the-state-of-uttar-pradesh-on-5-may-1959","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/tahsildar-singh-and-another-vs-the-state-of-uttar-pradesh-on-5-may-1959","title":{"rendered":"Tahsildar Singh And Another vs The State Of Uttar Pradesh on 5 May, 1959"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Tahsildar Singh And Another vs The State Of Uttar Pradesh on 5 May, 1959<\/div>\n
Equivalent citations: 1959 AIR 1012, \t\t 1959 SCR Supl. (2) 875<\/div>\n
Author: B P Sinha<\/div>\n
Bench: Sinha, Bhuvneshwar P.<\/div>\n
           PETITIONER:\nTAHSILDAR SINGH AND ANOTHER\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF UTTAR PRADESH\n\nDATE OF JUDGMENT:\n05\/05\/1959\n\nBENCH:\nSINHA, BHUVNESHWAR P.\nBENCH:\nSINHA, BHUVNESHWAR P.\nIMAM, SYED JAFFER\nKAPUR, J.L.\nSARKAR, A.K.\nSUBBARAO, K.\nHIDAYATULLAH, M.\n\nCITATION:\n 1959 AIR 1012\t\t  1959 SCR  Supl. (2) 875\n CITATOR INFO :\n R\t    1960 SC 706\t (27,28)\n R\t    1962 SC 605\t (26)\n R\t    1964 SC1563\t (8)\n R\t    1970 SC1006\t (7)\n RF\t    1972 SC1004\t (82)\n E\t    1974 SC 308\t (1,6,10)\n RF\t    1975 SC 667\t (95)\n RF\t    1975 SC1758\t (18)\n D\t    1977 SC1579\t (28)\n RF\t    1981 SC1068\t (3)\n\n\nACT:\nCriminal   Trial-Police\t Statements-Use\t of-Omission,\twhen\namounts to contradiction-Code of Criminal Procedure, 1898 (V\nof  1898), s. 162-Indian Evidence Act, 1872 (1 of 1872),  s.\n14.5.\n\n\n\nHEADNOTE:\nA  music performance attended by a large number\t of  persons\nincluding two police informers Bankey and Asa Ram was  going\non  on a platform in front of the house of one\tRam  Saroop.\nAt  that time there was a full moon and the light of  a\t gas\nlamp  and several lanterns.  The informers had placed  their\nguns on a cot close to the platform and one Bharat Singh was\nsitting\t on  that  cot.\t The accused along  with  15  or  20\npersons\t suddenly arrived armed with fire arms to  kill\t the\ninformers and stood behind a well on the southern side, from\nwhere they shouted that no one should run away and  advanced\nfiring shots.  Two persons were killed on the spot.   Bharat\nSingh was hit and he ran northwards pursued by the  culprits\nand  was also shot dead.  The culprits turned over the\tdead\nbodies and on seeing Bharat Singh's face they exclaimed that\nAsa Ram informer had been killed.  They then passed in front\nof  Ram\t Saroop's house and disappeared.  While\t going\tthey\ncarried away Bankey's gun from the cot.\t The appellants\t and\nseven others were sent up for trial for this occurrence.  At\nthe trial the defence alleged that prosecution had developed\nits case.  The police statements of the eye witness did\t not\nmention\t the  facts  regarding the scrtitiny  of  the  (lead\nbodies and the presence of the gas lantern, and the  defence\ncounsel\t put  the following two questions  with\t respect  to\nthese omissions to the first eye witness produced :-\n1.   \"\tDid you state to the Investigating Officer that\t the\ngang rolled the dead bodies of Nathi, Saktu and Bharat Singh\nand  scrutinised them and did you tell him that the face  of\nAsa Ram resembled with that of the deceased Bharat Singh ?\"\n2.   \" Did you state to the Investigating Officer about\t the\npresence of the gas lantern ?\"\nThe  Sessions judge disallowed the questions and on  account\nof  this order similar questions were not put to  the  other\neye witnesses.\tThe Sessions judge convicted the  appellants\nunder s. 302 Indian Penal Code and sentenced them to  death.\nThe  appellants\t appealed  to the High\tCourt  and  made  an\napplication alleging that the Sessions judge had not allowed\nthe  defence counsel to put omissions amounting to  material\ncontradictions to\n876\nthe  eye  witnesses  and prayed that the  eye  witnesses  be\nsummoned  so  that the questions disallowed may\t be  put  to\nthem.\nThough\tthe High Court held that the omissions\tamounted  to\ncontradictions and that the Sessions judge had wrongly\tdis-\nallowed\t cross-examination  with respect thereto,  it  found\nthat even after ignoring these two circumstances there\twere\nother facts which showed that the culprits had come close to\nthe  eye witnesses and that they had unmistaken\t opportunity\nof identifying the appellants in the light of the full\tmoon\nand the lanterns.  The High Court accordingly dismissed\t the\napplication for summoning the eye witnesses holding that  no\nprejudice   had\t been  caused  to  the\tappellants  by\t the\ndisallowance   of  the\tcross-examination  in\trespect\t  of\nomissions  and also dismissed the appeals and confirmed\t the\nconvictions and sentences of the appellants.\nHeld, (Per SINHA, KAPUR, SARKAR and SUBBA RAO, JJ.) that the\nomissions  did\tnot amount to contradictions -and  that\t the\nSessions judge was right in disallowing cross-examination in\nrespect\t thereof.  A statement to the police could  be\tused\nunder\ts.  162\t of  the  Code\tonly  for  the\tpurpose\t  of\ncontradicting  a  statement  in the witness  box  under\t the\nsecond part of s. 1, Evidence Act, but it could not be\tused\nfor  the  purpose of cross-examining the witness  under\t the\nfirst  part of s. 145.\tA statement made to the\t police\t but\nnot  reduced to writing, could not be used for any  purpose,\nnot  even for contradiction.  It was incorrect to  say\tthat\nall  omissions\tin  regard  to\timportant  features  of\t the\nincident which were expected to be included in the statement\nmade before the police, should be treated as contradictions.\nAn  omission  in  the police statement\tcould  amount  to  a\nstatement  and be used as a contradiction only when  (i)  it\nwas  necessarily implied from the recital or recitals  found\nin the statement, (ii) it was negative aspect of a  positive\nrecited in the statement or (iii) when the statement  before\nthe  police  and  that\tbefore the  Court  could  not  stand\ntogether.  It was for the the trial judge to decide in\teach\ncase,  after  comparing the part or parts of  the  statement\nrecorded  by the police with that made in  the\twitness-box,\nwhether\t the recital intended to be used  for  contradiction\nwas one of the nature indicated above.\nIn  Ye Ponnusami Chetty, (1933) I.L.R. 56 Mad. 475 ; In\t 'Ye\nGuruva\tVannan, I.L.R. (1944) Mad. 897; Ram Bali  v.  State,\nA.I.R.\t1952 All 289; Badri Chaudhry v. State,\tA.I.R.\t1926\nPat. 20, Sakhawat v. Crown, I.L.R. (1937) Nag. 277, referred\nto.\nRudder v. The State, A.I.R. 1957 All. 239; Mohinder Singh v.\nEmperor, A.I.R. 1932 Lah. 103; Yusuf Mia v. Emperor,  A.I.R.\n1938  Pat. 579; State of M. P. v. Banshilal  Behari,  A.I.R.\n1958 M.P. 13, disapproved.\nHeld,  (Per IMAM and HIDAYATULLAH, JJ.) that  the  questions\nthat were put by the defence counsel were properly ruled out\nby the Sessions judge as they did not set up contradictions,\nbut attempted to obtain from the witnesses versions of\twhat\nthey\n877\nhad stated to the police which were then to be contradicted.\nThe  reference to s. I45 Evidence Act in s. 162 of the\tCode\nof Criminal Procedure brings in the whole of the manner\t and\nmachinery  Of  S. I45 and not merely the  second  part.\t  An\naccused\t is entitled to cross-examine the witness under\t the\nfirst  part of s. 145 with respect to the police  statement.\nRelevant   and\t material   omissions\tamount\t to    vital\ncontradictions which can be established by  crossexamination\nand  confronting the witness with his previous statement  to\nthe  police.  In the circumstances of the present case\teven\nif the defence had been allowed to put questions  concerning\nthe omissions, it would not have affected the credibility of\nthe  witnesses and no prejudice was caused to appellants  by\nthe disallowance of the questions.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 67  of
\n1958.\n<\/p>\n
Appeal\tby special leave from the judgment and\torder  dated
\nSeptember 11, 1957, of the Allahabad High Court in  Criminal
\nAppeal No. 1388 of 1956 and Referred Trial No. 133 of  1956,
\narising\t out  of the judgment and order dated  September  8,
\n1956,  of  the\tCourt of the Additional\t Sessions  Judge  at
\nEtawah in Sessions Trial Nos. 83 and 109 of 1955.
\nJai Gopal Sethi and R. L. Kohli, for the appellants.
\nS.   P.\t Sinha,\t G.C.  Mathur and G.  N.  Dikshit,  for\t the
\nrespondent.\n<\/p>\n
1959.\tMay 5. The judgment of B. P. Sinha, J. L. Kapur,  A.
\nK.  Sarkar and K. Subba Rao, JJ. was delivered by  K.  Subba
\nRao, J. and the judgment of Jafer Imam and M.  Hidayatullah,
\nJJ., was delivered by M. Hidayatullah, J.\n<\/p>\n
SUBBA  RAO,  J.-This  appeal by\t special  leave\t raises\t the
\nquestion  of  construction  of\ts.  162,  Code\tof  Criminal
\nProcedure.   On\t June  16,1954, one  Ram  Sanehi  Mallah  of
\nNayapura gave a dinner at his home and a large number of his
\nfriends attended it.  After the dinner, at about 9 p. m.,  a
\nmusic  performance  was given in front of the house  of\t Ram
\nSanehi’s  neighbour,  Ram  Sarup.  About  35  or  40  guests
\nassembled  in  front  of Ram Sarup’s platform  to  hear\t the
\nmusic.\t The  prosecution  case is that a  large  number  of
\npersons\t armed with fire-arms suddenly appeared near a\twell
\nsituated on the southern side of the house of Ram Sarup and
\n878<\/span>
\nopened\tfire which resulted in the death of  Natthi,  Bharat
\nSingh  and  Saktu,  and injuries  to  six  persons,  namely,
\nHazari,\t Bankey,  Khem\tSingh, Bal Kishan,  Mizaji  Lal\t and
\nNathu.\n<\/p>\n
The topography of the locality where the incident took place
\nis given in the two site-plans, Ex.  P-57 and Ex. P-128.  It
\nappears\t from  the plans that the house of Ram\tSarup  faces
\nwest, and directly in front of the main door of his house is
\na,  platform;  to the southwest of the\tplatform,  about  25
\npaces  away, is a well with a platform of 3 feet  in  height
\nand about 13 feet in width around it; and to the west of the
\nplatform  in  front of Ram Sarup’s house the  audience\twere
\nseated.\n<\/p>\n
The prosecution version of the sequence of events that\ttook
\nplace  on that fatal night is as follows: After the  dinner,
\nthere  was a music performance in front of the\tplatform  of
\nRam Sarup’s house and a number of persons assembled there to
\nhear the music.\t Saktu played on the Majeera while Nathu was
\nsinging. it was a full-moon night and there were also a\t gas
\nlamp and several lanterns.  Bankey and Asa Ram placed  their
\nguns  on  a cot close to the platform and Bharat  Singh\t was
\nsitting\t on that cot.  While Bankey was among the  audience,
\nAsa  Ram was still taking his dinner inside the\t house.\t  At
\nabout  9  p.  m., the accused along with 15  or\t 20  persons
\narrived from an eastern lane, stood behind the well, shouted
\nthat no one should run away and advanced northward from\t the
\nwell  firing shots.  Natthi and Saktu were hit and  both  of
\nthem died on the spot.\tBharat Singh, who was also hit,\t ran
\nnorthward  and was pursued by some of the culprits  and\t was
\nshot  dead  in front of Bankey’s house shown  in  the  plan.
\nBankey, who was also shot at and injured, took up Asa  Ram’s
\ngun  and went up to the roof of Ram Sarup’s house  wherefrom
\nhe  fired  shots at the dacoits, who were  retreating.\t Asa
\nRam, who was luckily inside the house taking his dinner, ran
\nup  to the roof of Ram Sarup’s house and saw the  occurrence
\nfrom  over the parapet.\t The culprits turned over the  dead-
\nbodies\tof  Saktu, Natthi and Bharat Singh  and,  on  seeing
\nBharat Singh’s face, they exclaimed that Asa Ram was killed.
\nThereafter, they
\n879<\/span>
\nproceeded  northward,  passed  through\tthe  corner  of\t Ram
\nSarup’s\t house\tand  disappeared in  the  direction  of\t the
\nChambal.   They also carried away Bankey’s gun which was  on
\nthe cot.\n<\/p>\n
The  motive  for the offence is stated thus :  The  culprits
\nwere  members  of a notorious gang called  the\tMan  Singh’s
\ngang, who, it is alleged, were responsible for many  murders
\nand  dacoities\tin and about the aforesaid  locality.\tThat
\ngang was in league with another gang known as Charna’s\tgang
\noperating in the same region.  Asa Ram and Bankey had  acted
\nas informers against Charna’s gang, and this information led
\nto  the killing of Charna.  Man Singh’s gang wanted to\ttake
\nvengeance  on  the  said two persons; and,  having  got\t the
\ninformation that the said two persons would be at the  music
\nparty on that fateful night, they organized the raid with  a
\nview to do away with Asa Ram and Bankey.\n<\/p>\n
Out  of\t the  nine accused committed to\t the  Sessions,\t the
\nlearned Sessions Judge acquitted seven, convicted  Tahsildar
\nSingh  and Shyama Mallah under 14 charges and  awarded\tthem
\nvarious sentences, including the sentence of death.   Before
\nthe learned Sessions Judge, Tahsildar Singh took a  palpably
\nfalse  plea that be was not Tahsildar Singh but was  Bhanwar
\nSingh,\tand much of the time of the learned  Sessions  Judge
\nwas  taken to examine the case of the prosecution  that\t the
\naccused\t was really Tahsildar Singh, son of Man Singh.\t The
\nother accused, Shyama Mallah, though made a statement before
\nthe  Sub-Divisional Magistrate admitting some  facts,  which
\nwere  only exculpatory in nature, denied the  commission  of
\nthe offence before the committing Magistrate and before\t the
\nlearned\t Sessions  Judge.   As many  as\t eight\teyewitnesses
\ndescribed the events in detail and clearly stated that\tboth
\nthe  accused  took part in the incident.  When\tone  of\t the
\nwitnesses, Bankey (P.  W., 30), was in the witness-box,\t the
\nlearned Counsel for the accused put to him the following two
\nquestions in cross-examination:\n<\/p>\n
1.   ”\tDid you state to the investigating officer that\t the
\ngang rolled the dead bodies of Natthi, Saktu and
\n880<\/span>
\nBharat Singh, and scrutinized them and did you tell him that
\nthe  face of Asa Ram resembled that of the  deceased  Bharat
\nSingh ?”\n<\/p>\n
2.   ” Did you state to the investigating officer about\t the
\npresence of the gas lantern ?”\n<\/p>\n
In regard to the first question, the learned Sessions  Judge
\nmade the following note:\n<\/p>\n
”  The\tcross-examining Counsel was asked to  show  the\t law
\nwhich  entitles him to put this question.  He is  unable  to
\nshow any law. 1, therefore, do not permit the question to be
\nput unless I am satisfied.”\n<\/p>\n
In respect of the second question, the following note is
\n made:\n<\/p>\n
”  He  is also unable to show any law entitling him  to\t put
\nthis question.\tI will permit him to put it if he  satisfies
\nme about it.”\n<\/p>\n
It  appears from the deposition that no other\tquestion  on
\nthe basis of the statement made before the police was put to
\nthis  witness.\tAfter his evidence was closed,\tthe  learned
\nJudge  delivered a considered order giving his\treasons\t for
\ndisallowing the said two questions. The relevant part of the
\norder reads:\n<\/p>\n
“Therefore if there is no contradiction between his evidence
\nin Court and his recorded statement in the diary, the latter
\ncannot be used at all.\tIf a witness deposes in Court that a
\ncertain\t fact existed but had stated under section  161\t Cr.
\nP.  C.\teither that that fact had not existed  or  that\t the
\nreverse and irreconcilable fact had existed, it is a case of
\nconflict  between  the\tdeposition  in\tthe  Court  and\t the
\nstatement under section 161 Cr.\t P. C. and the latter can be
\nused  to  contradict the former.  But if he had\t not  stated
\nunder  section\t161  anything about the fact,  there  is  no
\nconflict and the statement cannot be used to contradict him.
\nIn some cases an omission in the statement under section 161
\nmay amount to contradiction of the deposition in Court; they
\nare   the   cases   where  what\t is   actually\t stated\t  is
\nirreconcilable with what is omitted and impliedly  negatives
\nits existence.”\n<\/p>\n
It  is\tenough\tto notice at this  stage  that\tthe  learned
\nSessions Judge did not by the said order rule that no.\n<\/p>\n
881<\/span><\/p>\n
omission  in the statement made under s. 161 of the Code  of
\nCriminal Procedure can be put to a witness, but stated\tthat
\nonly an omission which is irreconcilable with what is stated
\nin evidence can be put to a witness.  The said two omissions
\nwere not put to any of the other witnesses except to one  to
\nwhom  only  one\t of the said omissions was  put.   No  other
\nomissions were put in the cross-examination either to P.  W.
\n30 or to any other witness.  The learned Sessions Judge on a
\nconsideration  of the voluminous evidence in the  case\theld
\nthat the guilt was brought home to the said two accused\t and
\nconvicted  them\t as aforesaid.\tTahsildar Singh\t and  Shyama
\nMallah\tpreferred  two separate appeals to  the\t High  Court
\nagainst\t their convictions and sentences.  The\ttwo  appeals
\nwere  heard  along with the reference made  by\tthe  learned
\nSessions  Judge\t under\ts.  374\t of  the  Code\tof  Criminal
\nProcedure  for\tthe confirmation of the\t sentence  of  death
\nawarded\t to the appellants.  The learned Judges of the\tHigh
\nCourt,\tafter  reviewing  the entire  evidence\tover  again,
\naccepted the findings of the learned Sessions Judge and con-
\nfirmed\t the  convictions  and\tsentences  passed   on\t the
\nappellants.   Before the High Court a petition was filed  by
\nthe appellants alleging that the learned Sessions Judge\t did
\nnot allow the Counsel for defence to put omissions amounting
\nto   material  contradictions  to  the\t eye-witnesses\t and
\ntherefore the said eye-witnesses should be summoned so\tthat
\nthe said questions might be put to them.  That petition\t was
\nfiled  on  May\t1, 1957, and on July  30,  1957,  after\t the
\nargument  in  the  appeals  was\t closed,  the  petition\t was
\ndismissed.   Presumably, no attempt was made to\t press\tthis
\napplication  either  before the appeals were  taken  up\t for
\nargument  or  during  the course of the\t argument;  but\t the
\nquestion raised in the petition was considered by the earned
\nJudges\tof the High Court in their judgment.   The  judgment
\ndiscloses  that\t the  learned  Counsel\tappearing  for\t the
\nappellants  argued  before the High Court that\tthe  learned
\nSessions   Judge  wrongly  disallowed  the   aforesaid\t two
\nquestions, and the learned Judges, conceding that those\t two
\nquestions should have been allowed, held that the accused
\n882<\/span>
\nwere not prejudiced by the said fact.  They justified  their
\nconclusion by the following reasons:\n<\/p>\n
“We did so because among other reasons we decided to  ignore
\nthese two circumstances and to base our findings on  matters
\nof  greater  certainty, namely, the fact of  the  miscreants
\nfiring\twhile  advancing, passing in front of  Ram  Swarup’s
\nplatform  and  taking  away  Bankey’s  gun  from  the\tcot,
\nmovements which brought them close to the eye-witnesses\t and
\nthereby\t gave the witnesses an unmistakable  opportunity  of
\nseeing their faces in the light of the lanterns and the full
\nmoon.\t These\t factors  made\trecognition   by   witnesses
\nindependent  of any gas lantern or any scrutiny of the\tdead
\nbodies,\t so  that  these matters ceased to be  of  any\treal
\nconsequence  and  therefore made the summoning of  the\teye-
\nwitnesses before us quite unnecessary “. In the result, they
\ndismissed  the\tappeals.  The present appeal is\t by  special
\nleave filed against the judgment of the High Court.
\nLearned\t Counsel  for the appellants raised  before  us\t the
\nfollowing  points  : (1) (a).  Section 162 of  the  Code  of
\nCriminal  Procedure  by\t its  own  operation  attracts\t the
\nprovisions  of\ts.  145 of the Evidence Act  and  under\t the
\nlatter\tsection the whole vista of cross-examination on\t the
\nbasis  of  the\tprevious statement in writing  made  by\t the
\nwitnesses  before  the police is open to the  accused  ;  to
\nillustrate the contention: a witness can be asked whether he
\nmade  a particular statement before the police officers;  if
\nhe  says ” yes “, the said assertion can be contradicted  by
\nputting\t to him an earlier statement which does not  contain
\nsuch a statement. (1) (b).  The word ‘,contradiction ” is of
\nsuch  wide  connotation\t that  it  takes  in  all   material
\nomissions  and a Court can decide whether there is one\tsuch
\nomission  as  to  amount to  contradiction  only  after\t the
\nquestion  ,is  put, answered and the relevant  statement  or
\npart  of it is marked, and, therefore, no attempt should  be
\nmade  to evolve a workable principle, but the question\tmust
\nbe left at large to be decided by the Judge concerned on the
\nfacts of each case. (2) The High Court erred in holding that
\nonly  two  questions  were  intended to\t be  put  in  cross-
\nexamination to the prosecution
\n883<\/span>
\nwitnesses whereas the Advocate for the accused in. tended to
\nput to the witnesses many other omissions to establish\tthat
\nthere  was development in the prosecution case from time  to
\ntime  but  refrained  from  doing so  in  obedience  to\t the
\nconsidered  order  made by the learned Sessions\t Judge.\t (3)
\nEven if only two questions were illegally disallowed, as  it
\nwas  not  possible to predicate the possible effect  of\t the
\ncross-examination  of the- witnesses on the basis  of  their
\nanswers\t to  the  said questions on  their  reliability,  it
\nshould\tbe held that the accused had no opportunity to\thave
\nan  effective cross-examination of the witnesses and  there.
\nfore  they  had\t no  fair  trial.  (4)\tThe  learned  Judges
\ncommitted  an illegality in testing the credibility  of\t the
\nwitnesses  other  than\tthe  witness  who  gave\t the   first
\ninformation report by the contents of the said report.
\nThe  arguments of the learned Counsel for the respondent  in
\nrespect\t of each of the said contentions will be  considered
\nin their appropriate places.\n<\/p>\n
We shall proceed to consider the contentions of the  learned
\nCounsel\t for the appellants in the order in which they\twere
\naddressed:\n<\/p>\n
Re. (1) (a): Diverse and conflicting views were expressed by
\nCourts\ton  the\t interpretation of s. 162  of  the  Code  of
\nCriminal  Procedure.  A historic retrospect of\tthe  section
\nwill be useful to appreciate its content.  The earliest Code
\nis  that of 1872 and the latest amendment is that  of  1955.
\nFormerly   Criminal  Procedure\tCode  for  Courts   in\t the
\nPresidency,  towns  and those in the mofussil were  not\t the
\nsame.\t Criminal  Procedure  Code,  1882  (10\t of   1882),
\nconsolidated  the earlier Acts and prescribed a uniform\t law
\nto all Courts in India.\t It was superseded by Act 5 of\t1898
\nand substantial changes were made by Act 18 of 1923.   Since
\nthen the Code stands amended from time to time by many other
\nActs.\tThe  latest amendments were made by Act 26  of\t1955
\nwhich  received\t the assent of the President on\t August\t 10,
\n1955,  and by notification issued by the Central  Government
\nits provisions came into force on and from January 1,  1956.
\nWe  are not concerned in this case with the Amending Act  of
\n1955, but only with the Act as it stood before the amendment
\nof 1955.\n<\/p>\n
884<\/span><\/p>\n
In  Act 10 of 1872 the section corresponding to the  present
\ns. 162 was s. 119, which read:\n<\/p>\n
” An officer in charge of a Police-station, or other  Police
\nofficer\t making\t an investigation, may\texamine\t orally\t any
\nperson\tsupposed  to  be  acquainted  with  the\t facts\t and
\ncircumstances  of the case, and may reduce into writing\t any
\nstatement made by the person so examined.\n<\/p>\n
Such person shall be bound to answer all questions  relating
\nto such case, put him by such officer, other than  questions
\ncriminating himself.\n<\/p>\n
No statement so reduced into writing shall be signed by\t the
\nperson\tmaking it, nor shall it be. treated as part  of\t the
\nrecord or used as evidence.”\n<\/p>\n
This section enables a police officer to elicit\t information
\nfrom  persons  supposed\t to be acquainted  with\t facts,\t and
\npermits him to reduce into writing the answers given by such
\npersons, but excludes the said statement from being  treated
\nas  part of the record or used as evidence.  Act 10 of\t1882
\ndivided the aforesaid s. 119 into two sections and  numbered
\nthem as ss. 161 and 162, which read:\n<\/p>\n
S.   161: ” Any Police-officer making an investigation under
\nthis  chapter may examine orally any person supposed  to  be
\nacquainted with the facts and circumstances of the case, and
\nmay reduce into writing any statement made by the person  so
\nexamined.\n<\/p>\n
Such  person  shall be bound to answer truly  all  questions
\nrelating to such case put to him by such officer, other than
\nquestions  the\tanswers to which would have  a\ttendency  to
\nexpose\thim  to\t a  criminal  charge  or  to  a\t penalty  or
\nforfeiture.”\n<\/p>\n
S.   162:  ” No statement, other than a\t dying\tdeclaration,
\nmade  by any person to a Police-officer in the course of  an
\ninvestigation  under  this  chapter  shall,  if\t reduced  to
\nwriting,  be signed by the person making it, or be  used  as
\nevidence against the accused.\n<\/p>\n
Nothing\t in  this  section shall be  deemed  to\t affect\t the
\nprovisions of section 27 of the Indian Evidence Act, 1872.”
\nThe  first two paragraphs of s. 119 of Act 10 of  1872\twith
\nslight modifications not relevant for the present
\n885<\/span>
\npurpose constituted the corresponding paragraphs of s. 161
\nof Act 10 of 1882; and the third paragraph of s.  119 of the\n<\/p>\n
-former\t Act,  with  some changes, was made s.\t162  of\t the
\nlatter Act.  There was not much difference between the third
\nparagraph of s. 119 of the Act of 1872 and s. 162 of the Act
\nof  1882, except that in the latter Act, it was\t made  clear
\nthat the prohibition did not apply to a dying declaration or
\naffect\tthe provisions of s. 27 of the Indian Evidence\tAct,
\n1872 The Code of 1898 did not make any change in s. 161, nor
\ndid  it introduce any substantial change in the body  of  s.
\n162 except taking away the exception in regard to the  dying
\ndeclaration  from it and putting it in the second clause  of
\nthat  section.\tBut s. 162 was amended by Act 5 of 1898\t and
\nthe amended section read :\n<\/p>\n
” (1) No statement made by any person to a police-officer in
\nthe course of an investigation under this Chapter shall,  if
\ntaken  down in writing, be signed by the person\t making\t it,
\nnor shall such writing be used as evidence:
\nProvided   that,  when\tany  witness  is  called   for\t the
\nprosecution  whose statement has been taken down in  writing
\nas  aforesaid,\tthe  Court  shall, on  the  request  of\t the
\naccused,  refer to such writing, and may then, if the  Court
\nthinks it expedient in the interests of justice, direct that
\nthe  accused  be furnished with a copy thereof\t;  and\tsuch
\nstatement may be used to impeach the credit of such  witness
\nin manner provided by the Indian Evidence Act, 1872.
\n(2)  Nothing in this section shall be deemed to apply to any
\nstatement  falling  within  the provisions  of\tsection\t 32,
\nclause (1), of the Indian Evidence Act, 1872.”
\nFor  the  first time the proviso to s.\t162  introduced\t new
\nelements,  namely: (i) The right of the accused\t to  request
\nthe Court to refer to the statement of a witness reduced  to
\nwriting;  (ii)\ta duty cast on the Court to  refer  to\tsuch
\nwriting;  (iii)\t discretion conferred on the  Court  in\t the
\ninterests of justice to direct that the accused be furnished
\nwith a copy of the statement; and (iv) demarcating the field
\nwithin which such
\n886<\/span>
\nstatements can be used, namely, to impeach the credit of the
\nwitness\t in the manner provided by the Indian Evidence\tAct,
\n1872.\tFrom  the  standpoint of the accused,  this  was  an
\nimprovement  on\t the corresponding sections of\tthe  earlier
\nCodes, for whereas the earlier Codes enacted a complete\t bar
\nagainst\t the use of such statements in evidence,  this\tCode
\nenabled\t the accused, subject to the  limitations  mentioned
\ntherein,  to  make use of then to impeach the  credit  of  a
\nwitness\t in the manner provided by the Indian Evidence\tAct.
\nOn  the basis of the terms of s. 162 of Act 5 of  1896,\t two
\nrival  contentions  were raised before the Courts.   It\t was
\nargued for the prosecution that on the strength of s. 157 of
\nthe Evidence Act, the right of the prosecution to prove\t any
\noral  statement to contradict the testimony of\tany  witness
\nunder that section was not taken away by s. 162 of the\tCode
\nof  Criminal Procedure which only provided that the  writing
\nshall  not be used as evidence.\t On the other hand,  it\t was
\ncontended  on behalf of the accused that when the  statement
\nof  a witness was admittedly reduced into writing, it  would
\nbe unreasonable to allow any oral evidence of the  statement
\nto be given when the writing containing the statement  could
\nnot  be proved.\t The judgment of Hosain, J., in the case  of
\nRustam\tv.  King-Emperor (1) and the decisions\tin  Fanindra
\nNath Banerjee v. Emperor (2), King-Emperor v. Nilakanta\t (3)
\nand Muthukumaraswami Pillai v. King-Emperor ( (4)  represent
\none  side of the question, and the judgment of Knox, J.,  in
\nRustam\tv. King-Emperor (1) and the observations of  Beaman,
\nJ.,  in Emperor v. Narayan (5) represent the other side.   A
\ndivision  Bench\t of  the Bombay High  Court  in\t Emperor  v.
\nHanmaraddi  Bin Ramaraddi (6), after noticing the  aforesaid
\ndecisions  on  the question, ruled that the  police  officer
\ncould be allowed to depose to what the witness had stated to
\nhim  in the investigation for the purpose  of  corroborating
\nwhat  the witness had said at the trial.  In  that  context,
\nShah, J., observed at p. 66:\n<\/p>\n
(1)  (1970) 7 A L.J. 468.\n<\/p>\n
(3)  (1912) 35 Mad. 247.\n<\/p>\n
(5)  (1907) 32 Bo-. 111
\n(2)  (1908) 36 Cal. 281
\n(4)  (1912) 35 Mad. 397.\n<\/p>\n
(6)  (1915) 39 Bo-~- 58.\n<\/p>\n
8S7
\nThe point is not free from difficulty which is\tsufficiently
\nreflected in the diversity of judicial opinions, bearing  on
\nthe question.”\n<\/p>\n
Presumably,  in view of the aforesaid conflict, to make\t the
\nlegislative  intention clear the section was amended by\t Act
\n18  of\t1923.  Section 162 as amended by the  aforesaid\t Act
\nreads:\n<\/p>\n
” (1) No statement made by any person to a police-officer in
\nthe course of an investigation under this Chapter shall,  if
\nreduced into writing, be signed by the person making it; nor
\nshall any such statement or any record thereof, whether in a
\npolice-diary or otherwise, or any part of such statement  or
\nrecord,\t be  used  for\tany  purpose  (save  as\t hereinafter
\nprovided) at any inquiry or trial in respect of any  offence
\nunder  investigation  at the time when\tsuch  statement\t was
\nmade:\n<\/p>\n
Provided   that,  when\tany  witness  is  called   for\t the
\nprosecution  in\t such inquiry or trial whose  statement\t has
\nbeen reduced into writing as aforesaid, the Court shall,  on
\nthe request of the accused, refer to such writing and direct
\nthat the accused be furnished with a copy thereof, in  order
\nthat any part of such statement if duly proved, may be\tused
\nto contradict such witness in the manner provided by section
\n145 of the Indian Evidence Act, 1872.  When any part of such
\nstatement  is so used, any part thereof may also be used  in
\nthe reexamination of such witness, but for the purpose\tonly
\nof   explaining\t any  matter  referred\tto  in\this   cross-
\nexamination:\n<\/p>\n
Provided,  further that, if the Court is of  –opinion\tthat
\nany  part  of  any such statement is  not  relevant  to\t the
\nsubject-matter\t of  the  inquiry  or  trial  or  that\t its
\ndisclosure to the accused is not essential in the  interests
\nof  justice and is inexpedient in the public  interests,  it
\nshall  record such opinion (but not the\t reasons  therefore)
\nand  shall exclude such part from the copy of the  statement
\nfurnished to the accused.”\n<\/p>\n
Sub-section  (1)  of the substituted  section  attempted  to
\nsteer  clear  of  the aforesaid conflicts  and\tavoid  other
\ndifficulties  by the following ways: (a) Prohibited the\t use
\nof the statement, both oral and that reduced into
\n888<\/span>
\nwriting,  from being used for any purpose at any inquiry  or
\ntrial  in  respect of any offence under\t investigation;\t (b)
\nwhile the earlier section enabled the accused to make use of
\nit to impeach the credit of a witness in the manner provided
\nby  the Indian Evidence Act, 1872, the new  section  enabled
\nhim  only to use it to contradict the witness in the  manner
\nprovided  by s. 145 of the said Act; (c) the said  statement
\ncould  also be used for the purpose of only  explaining\t any
\nmatter\treferred to in his cross-examination; and (d)  while
\nunder  the old section a discretion was vested in the  Court
\nin  the matter of furnishing the accused with a copy  of  an
\nearlier\t statement  of\ta  prosecution\twitness,  under\t the
\namended\t section, subject to the second proviso, a duty\t was
\ncast  upon  the Court, if a request was made to\t it  by\t the
\naccused, to direct that the accused be furnished with a copy
\nthereof.  The effect of the amendment was that the loopholes
\nwhich  enabled\tthe  use of the statement  made\t before\t the
\npolice\tin a trial were plugged and the only exception\tmade
\nwas to enable the accused to use the statement of a  witness
\nreduced\t into writing for a limited purpose, namely, in\t the
\nmanner provided by s. 145 of the Indian Evidence Act,  1872,
\nand the prosecution only for explaining the matter  referred
\nto  in his cross examination.  The scope of the limited\t use
\nalso was clarified.  Under the old section the statement was
\npermitted  to be used to impeach the credit of a witness  in
\nthe  manner provided by the Indian Evidence Act;  under\t the
\nsaid Act, the credit of a witness could be impeached  either
\nunder  s. 145 or under s. 155(3).  While the former  section
\nenables\t a  witness to be cross-examined as  to\t a  previous
\nstatement made by him in writing without such writing  being
\nshown to him, the latter section permits the discrediting of
\nthe   witness  by  proof  of  his  previous   statement\t  by
\nindependent  evidence.\tIf a statement in writing  could  be
\nused to discredit a witness in the manner provided by  those
\ntwo  sections,\tthe  purpose of\t the  Legislature  would  be
\ndefeated.   Presumably\tin realisation\tof  this  unexpected
\nconsequence, the Legislature in the amendment made it  clear
\nthat the said statement can only be used to contradict a
\n889<\/span>
\nwitness\t in  the manner provided by s. 145 of  the  Evidence
\nAct.   By Act 2 of 1945, the following sub-section  (3)\t was
\nadded to s. 161:\n<\/p>\n
”  The police-officer may reduce into writing any  statement
\nmade  to  him  in the course of an  examination\t under\tthis
\nsection, and if he does so, he shall make a separate  record
\nof  the\t statement of each such person\twhose  statement  he
\nrecords.”\n<\/p>\n
This  subsection restored the practice obtaining before\t the
\nyear 1923 with a view to discourage the practice adopted  by
\nsome of the police officers of taking a condensed version of
\nthe  statements\t of all the witnesses or a precise  of\twhat
\neach witness said.  It is not necessary to notice in  detail
\nthe  changes  made in s. 162 by Act 26 of  1955,  except  to
\npoint  out that under the amendment the prosecution is\talso
\nallowed\t to use the statement to contradict a  witness\twith
\nthe  permission\t of  the  Court and  that  in  view  of\t the
\nshortened  committal  procedure prescribed,  copies  of\t the
\nstatements  of\tthe prosecution witnesses  made\t before\t the
\npolice during investigation are made available by the police
\nto  the\t accused before the commencement of the\t inquiry  or
\ntrial.\t The consideration of the provisions of\t the  latest
\namending Act need not detain us, for the present case  falls
\nto  be\tdecided\t tinder\t the Act as  it\t stood\tbefore\tthat
\namendment.\n<\/p>\n
It  is, therefore, seen that the object of  the\t legislature
\nthroughout  has been to exclude the statement of  a  witness
\nmade  before the police during the investigation from  being
\nmade use of at the trial for any purpose, and the amendments
\nmade from time to time were only intended to make clear\t the
\nsaid object and to dispel the cloud cast on such  intention.
\nThe  Act of 1898 for the first time introduced an  exception
\nenabling  the said statement reduced to writing to  be\tused
\nfor  impeaching\t the  credit of the witness  in\t the  manner
\nprovided  by  the Evidence Act.\t As the phraseology  of\t the
\nexception   lent  scope\t to  defeat  the  purpose   of\t the
\nlegislature,  by the Amendment Act of 1923, the section\t was
\nredrafted   defining  the  limits  of  the  exception\twith
\nprecision so as to confine it only 112
\n890<\/span>
\nto  contradict the witness in the manner provided  under  s.
\n145  of the Evidence Act.  If one could guess the  intention
\nof  the legislature in framing the section in the manner  it
\ndid in 1923, it would be apparent that it was to protect the
\naccused against the user of the statements of witnesses made
\nbefore\t the  police  during  investigation  at\t the   trial
\npresumably  on the assumption that the said statements\twere
\nnot made under circumstances inspiring confidence.  Both the
\nsection and the proviso intended to serve primarily the same
\npurpose, i.e., the interest of the accused.
\nBraund,\t J.,  in Emperor v. Aftab Mohd.\t Khan (1)  gave\t the
\npurpose of s. 162 thus at p. 299:\n<\/p>\n
”  As it seems to us it is to protect accused  persons\tfrom
\nbeing  prejudiced by statements made to police officers\t who
\nby  reason of the fact that an investigation is known to  be
\non  foot  at  the time the statement is made, may  be  in  a
\nposition  to  influence the maker of it and,  on  the  other
\nhand,  to protect accused persons from the prejudice at\t the
\nhands of persons who in the knowledge that an  investigation
\nhas already started, are prepared to tell untruths.  ”
\nA division Bench of the Nagpur High Court in Baliram Tikaram
\nMarathe v. Emperor (2) expressed a similar idea in regard to
\nthe object underlying the section,at p. 5, thus:
\n”  The object of the section is to protect the accused\tboth
\nagainst\t  over-zealous\t police\t officers   and\t  untruthful
\nwitnesses.  ”\n<\/p>\n
The Judicial Committee in Pakala Narayana Swami v. The King-
\nEmperor\t (3)  found another object underlying  -the  section
\nwhen they said at p. 78:\n<\/p>\n
“If one had to guess at the intention of the Legislature  in
\nframing a section in the words used, one would suppose\tthat
\nthey  had  in  mind  to encourage  the\tfree  disclosure  of
\ninformation  or to protect the person making  the  statement
\nfrom  a\t supposed unreliability of police  testimony  as  to
\nalleged statements or both.\n<\/p>\n
Section 162 with its proviso, if construed in the
\n(1) A.I R. 1940 All. 291.      (2) A.I.R. 1945 Nag. 1.
\n(3) (1939) L.R. 66 I. A. 66.\n<\/p>\n
891<\/span><\/p>\n
manner\twhich  we will indicate at the later  stage  of\t the
\njudgment, clearly achieves the said objects.
\nThe learned Counsel’s first argument is based upon the words
\n”  in the manner provided by s. 145 of the  Indian  Evidence
\nAct,  1872  ”  found  in s. 162\t of  the  Code\tof  Criminal
\nProcedure.   Section  145 of the Evidence Act, it  is  said,
\nempowers  the  accused to put all relevant  questions  to  a
\nwitness before his attention is called to those parts of the
\nwriting\t with a view to contradict him.\t In support of\tthis
\ncontention  reliance  is placed upon the  judgment  of\tthis
\nCourt  in Bhagwan Singh v. The State of Punjab\t(1).   Bose,
\nJ.,  describes the procedure to be followed to contradict  a
\nwitness under s. 145 of the Evidence Act thus at p. 819:
\n”  Resort  to  section 145 would only be  necessary  if\t the
\nwitness\t denies that he made the former statement.  In\tthat
\nevent,\tit would be necessary to prove that he did,  and  if
\nthe  former statement was reduced to writing,  then  section
\n145 requires that his attention must be drawn to those parts
\nwhich  are to be used for contradiction.  But that  position
\ndoes not arise when the witness admits the former statement.
\nIn  such  a  case all that is necessary is to  look  to\t the
\nformer\tstatement  of which no further\tproof  is  necessary
\nbecause of the admission that it was made.  ”
\nIt is unnecessary to refer to other cases wherein a  similar
\nprocedure is suggested for putting questions under s. 145 of
\nthe Indian Evidence Act, for the said decision of this Court
\nand similar decisions were not considering the procedure  in
\na  case\t where the statement in writing was intended  to  be
\nused for contradiction under s. 162 of the Code of  Criminal
\nProcedure.  Section 145 of the Evidence Act is in two parts:
\nthe  first  part  enables the  accused\tto  cross-examine  a
\nwitness\t as to previous statement made by him in writing  or
\nreduced\t to writing to without such writing being  shown  to
\nhim; the second part deals with a situation where the cross-
\nexamination  assumes the shape of contradiction :  in  other
\nwords,\tboth  parts deal with cross-examination;  the  first
\npart   with   cross-examination\t other\tthan   by   way\t  of
\ncontradiction, and the
\n(1)  [1952] S.C.R. 812.\n<\/p>\n
892<\/span><\/p>\n
second with cross-examination by way of contradiction  only.
\nThe  procedure\tprescribed  is that, if it  is\tintended  to
\ncontradict  a  witness by the writing, his  attention  must,
\nbefore\tthe writing can be proved, be called to those  parts
\nof it which are to be used for the purpose of  contradicting
\nhim.   The  proviso  to\t s. 162\t of  the  Code\tof  Criminal
\nProcedure  only\t enables  the accused to make  use  of\tsuch
\nstatement to contradict a witness in the manner provided  by
\ns.  145 of the Evidence Act.  It would be doing violence  to
\nthe language of the proviso if the said statement be allowed
\nto  be\tused for the purpose of\t cross-examining  a  witness
\nwithin\tthe  meaning  of the first part of  s.\t145  of\t the
\nEvidence Act.  Nor are we impressed by the argument that  it
\nwould not be possible to invoke the second part of s. 145 of
\nthe  Evidence Act without putting relevant  questions  under
\nthe  first part thereof.  The difficulty is  more  imaginary
\nthan  real.  The second part of s. 145 of the  Evidence\t Act
\nclearly\t indicates the simple procedure to be followed.\t  To
\nillustrate:  A\tsays in the witness-box that B stabbed\tC  ;
\nbefore\tthe  police  he bad stated that\t D  stabbed  C.\t His
\nattention  can be drawn to that part of the  statement\tmade
\nbefore\tthe  police which contradicts his statement  in\t the
\nwitness-box.   If  he  admits  his  previous  statement,  no
\nfurther\t proof\tis  necessary; if he  does  not\t admit,\t the
\npractice generally followed is to admit it subject to  proof
\nby  the\t police officer.  On the other hand,  the  procedure
\nsuggested by the learned Counsel may be illustrated thus: If
\nthe witness is asked ” did you say before the police-officer
\nthat  you saw a gas light ? ” and he answers ” yes  “,\tthen
\nthe statement which does not contain such recital is put  to
\nhim   as   contradiction.   This  procedure   involves\t two
\nfallacies:  one\t is it enables the accused to  elicit  by  a
\nprocess of cross-examination what the witness stated  before
\nthe  police-officer.   If a police-officer did\tnot  make  a
\nrecord of a witness’s statement, his entire statement  could
\nnot  be\t used for any purpose, whereas if  a  police-officer
\nrecorded  a  few  sentences,  by  this\tprocess\t of   cross-
\nexamination,  the witness’s oral statement could be  brought
\non record.  This procedure,
\n893<\/span>
\ntherefore,  contravenes the express provision of s.  162  of
\nthe  Code.  The second fallacy is that by  the\tillustration
\ngiven by the learned Counsel for the appellants there is  no
\nself-contradiction  of\tthe primary statement  made  in\t the
\nwitness-box,  for the witness has yet not made on the  stand
\nany  assertion\tat all which can serve as  the\tbasis.\t The
\ncontradiction,\tunder the section, should be between what  a
\nwitness\t asserted  in  the witness-box and  what  he  stated
\nbefore\tthe police-officer, and not between what he said  he
\nhad  stated before the police-officer and what\the  actually
\nmade  before him.  In such a case the question could not  be
\nput at all: only questions to contradict can be put and\t the
\nquestion  here\tposed  does not contradict it  leads  to  an
\nanswer which is contradicted by the police statement.\tThis
\nargument  of  the learned Counsel based upon s. 145  of\t the
\nEvidence  Act  is,  therefore,\tnot  of\t any  relevance\t  in
\nconsidering the express provisions of s. 162 of the Code  of
\nCriminal Procedure.\n<\/p>\n
This  leads us to the main question in the case,  i.e.,\t the
\ninterpretation of s. 162 of the Code of Criminal  Procedure.
\nThe  cardinal rule of construction of the, provisions  of  a
\nsection\t with  a proviso is succinctly stated  in  Maxwell’s
\nInterpretation of Statutes, 10th Edn., at p. 162 thus:
\n”  The proper course is to apply the broad general  rule  of
\nconstruction,  which is that a section or enactment must  be
\nconstrued as a whole, each portion throwing light if need be
\non the rest.\n<\/p>\n
The   true   principle\tundoubtedly  is,  that\t the   sound
\ninterpretation and meaning of the statute, on a view of\t the
\nenacting  clause,  saving  clause, and\tproviso,  taken\t and
\nconstrued together is to prevail.”\n<\/p>\n
Unless the words are clear, the Court should not so construe
\nthe proviso as to attribute an intention to the\t legislature
\nto give with one hand and take away with another.  To put it
\nin  other  words,  a  sincere  attempt\tshould\tbe  made  to
\nreconcile  the enacting clause and the proviso and to  avoid
\nrepugnancy between the two.\n<\/p>\n
As  the\t words in the section declare the intention  of\t the
\nlegislature, we shall now proceed to construe the
\n894<\/span>
\nsection\t giving\t the words used therein\t their\tnatural\t and
\nordinary sense.\n<\/p>\n
The  object  of\t the  main section as  the  history  of\t its
\nlegislation  shows  and\t the decided cases  indicate  is  to
\nimpose\ta  general  bar against the use\t of  statement\tmade
\nbefore\tthe  police and the enacting clause in\tclear  terms
\nsays  that  no\tstatement made by any  person  to  a  police
\nofficer or any record thereof, or any part of such statement
\nor record, be used for any purpose.  The words are clear and
\nunambiguous.   The  proviso  engrafts an  exception  on\t the
\ngeneral\t prohibition  and  that is, the\t said  statement  in
\nwriting\t may be used to contradict a witness in\t the  manner
\nprovided  by  s. 145 of the Evidence Act.  We  have  already
\nnoticed\t from the history of the section that  the  enacting
\nclause\twas  mainly  intended to protect  the  interests  of
\naccused.   At  the  stage of  investigation,  statements  of
\nwitnesses  are\ttaken in a haphazard  manner.\tThe  police-
\nofficer\t in  the course of his investigation  finds  himself
\nmore  often  in the midst of an excited crowd and  label  of
\nvoices raised all round.  In such an atmosphere, unlike that
\nin a Court of Law, be is expected to hear the statements  of
\nwitnesses and record separately the statement of each one of
\nthem.  Generally he records only a summary of the statements
\nwhich  appear to him to be relevant.  These statements\tare,
\ntherefore,  only a summary of what a witness says  and\tvery
\noften perfunctory.  Indeed, in view of the aforesaid  facts,
\nthere  is  a statutory prohibition against  police  officers
\ntaking\tthe  signature of the person making  the  statement,
\nindicating thereby that the statement is not intended to  be
\nbinding\t on the witness or an assurance by him that it is  a
\ncorrect statement.\n<\/p>\n
At  the\t same  time, it being the  earliest  record  of\t the
\nstatement  of  a  witness  soon\t after\tthe  incident,\t any
\ncontradiction  found therein would be of immense help to  an
\naccused\t to discredit the testimony of a witness making\t the
\nstatement.   The  section was, therefore,  conceived  in  an
\nattempt\t to find a happy via media, namely, while it  enacts
\nan absolute bar against the statement made before a  police-
\nofficer\t being used for any purpose whatsoever,\t it  enables
\nthe accused to rely
\n895<\/span>
\nupon it for a limited purpose of contradicting a witness  in
\nthe manner provided by s. 145 of the Evidence Act by drawing
\nhis  attention\tto  parts  of  the  statement  intended\t for
\ncontradiction.\t It  cannot be used for corroboration  of  a
\nprosecution  or a defence witness or even a  Court  witness.
\nNor  can it be used for contradicting a defence or  a  Court
\nwitness.  Shortly stated, there is a general bar against its
\nuse  subject to a limited exception in the interest  of\t the
\naccused, and the exception cannot obviously be used to cross
\nthe bar.\n<\/p>\n
If  the\t provisions  of the section  are  construed  in\t the
\naforesaid  back\t ‘ground,  much\t of  the  difficulty  raised
\ndisappears.   Looking  at  the express words  used  in\ttile
\nsection,  two  sets  of words stand  out  prominently  which
\nafford\tthe key to the intention of the\t legislature.\tThey
\nare  :\t” statement in writing “, and ” to contradict  “.  ”
\nStatement ” in its dictionary meaning is the act of  stating
\nor  reciting.  Prima  facie a statement cannot\ttake  in  an
\nomission.   A  statement cannot include that  which  is\t not
\nstated.\t  But  very often to make a  statement\tsensible  or
\nself-consistent,  it becomes necessary to imply words  which
\nare not actually in the statement.  Though something is\t not
\nexpressly  stated,  it is necessarily implied from  what  is
\ndirectly  or expressly stated.\tTo illustrate: ‘ A’  made  a
\nstatement  previously  that he saw ‘ B ‘ stabbing ‘ C  ‘  to
\ndeath;\tbut  before  the Court he deposed that\the  saw\t ‘B’
\nand   ‘D’  stabbing ‘ C’ to death: the Court can  imply\t the
\nword “only ” after ‘ B ‘ in the statement before the police.
\nSometimes  a positive statement may have a  negative  aspect
\nand  a\tnegative  one a positive aspect.   Take\t an  extreme
\nexample\t : if a witness states that a man is dark,  it\talso
\nmeans  that  he\t is not fair.\tThough\tthe  statement\tmade
\ndescribes positively the colour of a skin, it is implicit in
\nthat  statement itself that it is not of any  other  colour.
\nFurther,  there\t are  occasions\t when  we  come\t across\t two
\nstatements  made by the same person at different  times\t and
\nboth of them cannot stand or co-exist.\tThere is an inherent
\nrepugnancy  between the two and, therefore, if one is  true,
\nthe other must be false.  On one occasion a person says
\n896<\/span>
\nthat when he entered the room, he saw ‘ A’ shooting ‘B’ dead
\nwith  a gun; on another occasion the same person  says\tthat
\nwhen  he entered the room he saw ‘C’ stabbing ‘ B ‘  dead  ;
\nboth the statements obviously cannot stand together, for, if
\nthe  first statement is true, the second is false  and\tvice
\nversa.\t The doctrine of recital by  necessary\timplication,
\nthe  concept of the negative or the positive aspect  of\t the
\nsame recital, and the ‘principle of inherent repugnancy, may
\nin  one sense rest on omissions, but, by  construction,\t the
\nsaid omissions must be deemed to be part of the statement in
\nwriting.   Such omissions are not really omissions  strictly
\nso  called and the statement must be deemed to contain\tthem
\nby  implication.  A statement, therefore, in our  view,\t not
\nonly  includes\twhat is expressly stated therein,  but\talso
\nwhat is necessarily implied therefrom.\n<\/p>\n
”  Contradict ” according to the Oxford Dictionary means  to
\naffirm\tto  the contrary.  Section 145 of the  Evidence\t Act
\nindicates the manner in which contradiction is brought\tout.
\nThe  cross-examining Counsel shall put the part or parts  of
\nthe  statement which affirms the contrary to what is  stated
\nin  evidence.\tThis indicates that there  is  something  in
\nwriting\t which can be set against another statement made  in
\nevidence.  If the statement before the police-officer-in the
\nsense  we have indicated-and the statement in  the  evidence
\nbefore the Court are so inconsistent or irreconcilable\twith
\neach other that both of them cannot co-exist, it may be said
\nthat one contradicts the other.\n<\/p>\n
It  is\tbroadly\t contended that\t a  statement  includes\t all
\nomissions  which are material and are such as a\t witness  is
\nexpected  to  say  in the normal  course.   This  contention
\nignores the intention of the legislature expressed in s. 162
\nof  the Code and the nature of the non-evidentiary value  of
\nsuch  a\t statement,  except  for  the  limited\tpurpose\t  of
\ncontradiction.\tUnrecorded statement is completely excluded.
\nBut  recorded  one  is used for a  specified  purpose.\t The
\nrecord\tof a statement, however perfunctory, is\t assumed  to
\ngive  a\t sufficient  guarantee to  the\tcorrectness  of\t the
\nstatement made, but if words not recorded are brought in  by
\nsome fiction, the object of the section would be
\n897<\/span>
\ndefeated.   By\tthat process, if a part of  a  statement  is
\nrecorded, what was not stated could go in on the sly in\t the
\nname  of contradiction, whereas if the entire statement\t was
\nnot  recorded, it would be excluded.  By doing so, we  would
\nbe circumventing the section by ignoring the only  safeguard
\nimposed by the legislature, viz., that the statement  should
\nhave been recorded.\n<\/p>\n
We  have already pointed out that under the amending Act  of
\n1955,  the prosecution is also allowed to use the  statement
\nto  contradict a witness with the permission of\t the  Court.
\nIf  construction of the section as suggested by the  learned
\nCounsel\t for  the appellants be\t accepted,  the\t prosecution
\nwould  be able to bring out in the  cross-examination  facts
\nstated by a witness before a police-officer but not recorded
\nand  facts  omitted  to be stated by  him  before  the\tsaid
\nofficer.   This\t result is not decisive on the\tquestion  of
\nconstruction, but indicates the unexpected repercussions  of
\nthe argument advanced to the prejudice of the accused.
\nAs  s.\t162 of the Code of Criminal  Procedure\tenables\t the
\nprosecution  in the reexamination to rely upon any  part  of
\nthe  statement used by the defence to contradict a  witness,
\nit  is\tcontended  that\t the  construction  of\tthe  section
\naccepted  by us would lead to an anomaly, namely,  that\t the
\naccused cannot ask the witness a Single question, which does
\nnot amount to contradiction whereas the prosecution,  taking
\nadvantage  of  a  single contradiction relied  upon  by\t the
\naccused,  can reexamine the witness in regard to any  matter
\nreferred to in his cross-examination, whether it amounts  to
\na contradiction or not.\t I do not think there is any anomaly
\nin  the\t situation.  Section 145 of the Evidence  Act  deals
\nwith  cross-examination in respect of a\t previous  statement
\nmade by the witness.  One of the modes of  cross-examination
\nis  by contradicting the witness by referring him  to  those
\nparts of the writing which are inconsistent with his present
\nevidence.   Section  162, while confining the right  to\t the
\naccused\t to  cross-examine the witness in the  said  manner,
\nenables the prosecution to reexamine the witness to  explain
\n113<\/span>
\n898<\/span>
\nthe  matters  referred to in  the  cross-examination.\tThis
\nenables the prosecution to explain the alleged contradiction
\nby  pointing  out that if a part of the\t statement  used  to
\ncontradict  be\tread in the context of any  other  part,  it
\nwould  give  a different meaning; and if so read,  it  would
\nexplain\t away the alleged contradiction.  We think that\t the
\nword  ”\t cross-examination ” in the last line of  the  first
\nproviso\t to s. 162 of the Code of Criminal Procedure  cannot
\nbe understood to mean the entire gamut of  cross-examination
\nwithout\t reference to the limited scope of the proviso,\t but
\nshould\t be  confined  only  to\t the  cross-examination\t  by
\ncontradiction allowed by the said proviso.
\nThe  conflict  of  judicial  opinion  on  this\tquestion  is
\nreflected in the decisions of different High Courts in\tthis
\ncountry.   One of the views is tersely put by Burn J. in  In
\nre Ponnusami Chetty (1) at p. 476:\n<\/p>\n
“Whether  it  is  considered  as  a  question  of  logic  or
\nlanguage,  ” omission ” and ” contradiction ” can  never  be
\nidentical.   If a proposition is stated,  any  contradictory
\nproposition  must  be  a statement  of\tsome  kind,  whether
\npositive  or negative.\tTo ” contradict ” means to  ”  speak
\nagainst ” or in one word to ” gainsay “. It is absurd to say
\nthat you can contradict by keeping silence.  Silence may  be
\nfull  of  significance,\t but  it is not\t ”  diction  “,\t and
\ntherefore  it  cannot be ”  contradiction
\n“Considering  the provisions of s. 145 of the Evidence\tAct,
\nthe learned Judge observed thus at p. 477:\n<\/p>\n
”  It  would be in my opinion sheer misuse of words  to\t say
\nthat  you are contradicting a witness by the  writing,\twhen
\nwhat you really want to do is to contradict him by  pointing
\nout  omissions from the writing.  I find myself in  complete
\nagreement with the learned Sessions Judge of Ferozepore\t who
\nobserved  that\t” a witness cannot be  confronted  with\t the
\nunwritten record of an unmade statement “.”
\nThe  learned  Judge  gives  an illustration  of\t a  case  of
\napparent omission which really is, a contradiction, i.e.,  a
\ncase where a witness stated under s. 162 of the Code that he
\nsaw three persons beating a man and later
\n(1)  (1933) I.L.R. 56 Mad. 475.\n<\/p>\n
899<\/span><\/p>\n
stated in Court that four persons were beating the same man.
\nThis  illustration indicates the trend of the  Judge’s\tmind
\nthat  he was prepared to treat an omission of that  kind  as
\npart of the statement by necessary implication.\t A  Division
\nBench of the ‘Madras High Court followed this judgment in In
\nre  Guruva Vannan (1).\tIn that judgment, Mockett, J.,\tmade
\nthe following observation at p. 901 :\n<\/p>\n
”  I  respectfully agree with the judgment of Burn,  J.,  in
\nPonnuswamy Chetty v. Emperor (2) in which the learned  Judge
\nheld  that  a  statement under section 162 of  the  Code  of
\nCriminal  Procedure cannot be filed in order to show that  a
\nwitness is making statements in the witness box which he did
\nnot  make to the police and that bare omission cannot  be  a
\ncontradiction.\tThe learned judge points out that, whilst  a
\nbare  omission\tcan never be a\tcontradiction,\ta  so-called
\nomission in a statement may sometimes amount to a contradic-
\ntion,  for  example, when to the police\t three\tpersons\t are
\nstated\tto  have been the criminals and later at  the  trial
\nfour are mentioned.”\n<\/p>\n
The Allahabad High Court in Ram Bali v. State expressed\t the
\nprinciple with its underlying reasons thus at p. 294:
\n”  Witness  after witness was cross-examined  about  certain
\nstatements made by him in the deposition but not to be found
\nin  his statement under s. 162, Criminal P. C.\tA  statement
\nrecorded  by  the police under s. 162 can be  used  for\t one
\npurpose\t and one purpose only and that of contradicting\t the
\nwitness.  Therefore if there is no contradiction between his
\nevidence  in Court and his recorded statement in the  diary,
\nthe  latter cannot be used at all.  If a witness deposes  in
\nCourt  that a certain fact existed but had stated  under  s.
\n162 either that fact had not existed or that the reverse and
\nirreconcilable\tfact  had existed it is a case\tof  conflict
\nbetween the deposition in the Court and the statement  under
\ns. 162 and the latter can be used to contradict the  former.
\nBut  if\t he had not stated under s. 162 anything  about\t the
\nfact there is no conflict and the
\n(1) I.L.R. (1944) Mad. 897.  (2) (1933) I L.R. 56 Mad. 475.
\n\t  (3) A.I.R. 1952 All. 280.\n<\/p>\n
900<\/span><\/p>\n
statement  cannot be used to contradict him.  In some  cases
\nan  omission  in the statement under s. 162  may  amount  to
\ncontradiction of the deposition in Court ;they are the cases
\nwhere what is actually stated is irreconcilable with what is
\nomitted and impliedly negatives its existence.”
\nAt  a later stage of the judgment, the learned\tJudges\tlaid
\ndown  the  following  two  tests  to  ascertain\t whether   a
\nparticular   omission  amounts\tto  contradiction:  (i)\t  an
\nomission  is  not a contradiction unless  what\tis  actually
\nstated contradicts what is omitted to be said; and (ii)\t the
\ntest to find out whether an omission is contradiction or not
\nis to see whether one can point to any sentence or assertion
\nwhich  is irreconcilable with the deposition in\t the  Court.
\nThe said observations are in accord with that of the  Madras
\nHigh Court in In re Guruva Vannan (1).\tThe Patna High Court
\nin  Badri Chaudhry v. King-Emperor (2) expressed  a  similar
\nview.\tAt  p. 22, Macpherson, J., analysing s. 162  of\t the
\nCode  of  Criminal Procedure, after its amendment  in  1923,
\nobserved :\n<\/p>\n
” The first proviso to section 162 (1) makes an exception in
\nfavour of the accused but it is an exception most  jealously
\ncircumscribed under the proviso itself.\t ” Any part of\tsuch
\nstatement ” which has been reduced to writing may in certain
\nlimited circumstances be used to contradict the witness\t who
\nmade it.  The limitations are strict: (1) Only the statement
\nof a prosecution witness can be used; and (2) only if it has
\nbeen  reduced to writing ; (3) only a part of the  statement
\nrecorded  can be used ; (4) such part must be duly proved  ;
\n(5)  it\t must  be a contradiction of  the  evidence  of\t the
\nwitness in Court; (6) it must be used as provided in s. 145,
\nEvidence  Act,\tthat  is,  it can only\tbe  used  after\t the
\nattention  of the witness has been drawn to it or  to  those
\nparts  of it which it is intended to use for the purpose  of
\ncontradiction, and there are others.  Such a statement which
\ndoes  not contradict the testimony of the witness cannot  be
\nproved in any circumstances and it is not permissible to use
\nthe  recorded statement as a whole to show that the  witness
\ndid not say something to the investigating officer.”
\n(1) I.L.R. (1944) Mad. 897.\n<\/p>\n
(2) A.I.R. 1926 Pat. 20.\n<\/p>\n
901<\/span><\/p>\n
In Sakhawat v. Crown (1) much to the same effect was  stated
\nat p. 284:\n<\/p>\n
” The section (s. 162) provides that such statements can  be
\nused  only for the purpose of contradiction.   Contradiction
\nmeans  the setting up of one statement against\tanother\t and
\nnot  the setting up of a statement against nothing  at\tall.
\nAn illustration would make the point clear.  If a witness in
\nCourt  says  ‘I saw A running away’ he may  be\tcontradicted
\nunder section 162 by his statement to the police ‘I did\t not
\nsee  A running away’.  But by proving an omission  what\t the
\nlearned\t Counsel contradicts is not the statement ‘I  saw  A
\nrunning away’ but the statement ‘I stated to the police that
\nI  saw’ A running away’.  As section 162 does not allow\t the
\nwitness\t to  depose ‘ I stated to the police that  I  saw  A
\nrunning\t away  ‘ it follows that there can be no  basis\t for
\neliciting  the omission.  Our argument is further  fortified
\nby   the   use\t of   the  words  ”   any   part   of\tsuch
\nstatement …………… may be used to contradict.” It  is
\nnot said that whole statement may be used.  But in order  to
\nprove an omission the whole statement has to be so used,  as
\nhas  been  done in the present case.”The  contrary  view  is
\nexpressed in the following proposition
\n”  An  omission may amount to Contradiction  if\t the  matter
\nomitted\t was one which the witness would have been  expected
\nto  mention  and the Sub-Inspector to make note\t of  in\t the
\nordinary course.  Every detail is expected to be noted.”
\nThis  proposition,  if\twe  may\t say  so,  couched  in\twide
\nphraseology enables the trial Judge to put into the mouth of
\na witness things which he did not state at an earlier  stage
\nand   did  not\tintend\tto  say,  oil  purely\thypothetical
\nconsiderations.\t  The  same  idea in  a\t slightly  different
\nlanguage was expressed by Bhargava and Sahai, JJ., in Rudder
\nv. The State (2) at p. 240:\n<\/p>\n
”  There  are, however, certain omissions  which  amount  to
\ncontradictions\tand have been treated as such by this  Court
\nas  well  as  other  Courts  in\t this  country.\t  Those\t are
\nomissions relating to facts which
\n(1) I.L.R. (1937) Nag. 277.\n<\/p>\n
(2) A.I.R. 1957 All. 239.\n<\/p>\n
902<\/span><\/p>\n
are  expected  to be included in the  statement\t before\t the
\npolice\tby  a person who is giving a narrative of  what\t ‘he
\nsaw, on the ground that they relate to important features of
\nthe incident about which the deposition is made.”
\nA  similar view was expressed in Mohinder Singh\t v.  Emperor
\n(1), Yusuf Mia v. Emperor (2), and State of M.\t  P.\t  v.
\nBanshilal Behari (3).\n<\/p>\n
Reliance is placed by the learned Counsel for the appellants
\non a statement of law found in ” Wigmore on Evidence “, Vol.
\nIII,  3rd Edn., at p. 725.  In discussing under the  head  ”
\nwhat  amounts to a Self-contradiction “, the learned  author
\ntersely\t describes  a self-contradiction  in  the  following
\nterms:\n<\/p>\n
“………… it is not a mere difference of statement\tthat
\nsuffices; nor yet is an absolute oppositeness essential;  it
\nis an inconsistency that is required.”\n<\/p>\n
The learned author further states, at p. 733 :
\n”  A  failure  to assert a fact, when  it  would  have\tbeen
\nnatural\t to assert it, amounts in effect to an assertion  of
\nthe non-existence of the fact.”\n<\/p>\n
The said statement is no doubt instructive, but it cannot be
\npressed\t into service to interpret the provisions of s.\t 162
\nof the Code of Criminal Procedure.  In America, there is  no
\nprovision  similar  to\ts.  162 of the\tCode.\tIt  is\tnot,
\ntherefore,  permissible, or even possible, to interpret\t the
\nprovisions  of\ta  particular Act, having  regard  to  stray
\nobservations in a text-book made in a different context.
\nIt is not necessary to multiply cases.\tThe two\t conflicting
\nviews  may be briefly stated thus: (i) omissions, unless  by
\nnecessary implication be deemed to be part of the statement,
\ncannot\tbe  used  to contradict the statement  made  in\t the
\nwitness-box;  and (ii) they must be in regard  to  important
\nfeatures  of the incident which are expected to be  included
\nin  the\t statement  made  before  the  police.\t The   first
\nproposition  not  only\tcarries out  the  intention  of\t the
\nlegislature but is also in accord with the plain meaning  of
\nthe  words used in the section.\t The second proposition\t not
\nonly stretches
\n(1) A.I.R. 1932 Lah. 103.      (2) A.I.R. 1938 Pat. 579.\n<\/p>\n
\t   (3) A.I.R. 1936 M.P. 13.\n<\/p>\n
903<\/span><\/p>\n
the  meaning of the word ” statement ” to a breaking  point,
\nbut   also   introduces\t an   uncertain\t  element,   namely,
\nascertainment of what a particular witness would have stated
\nin  the\t circumstances\tof a particular case  and  what\t the
\npolice officer should have recorded.  When the section\tsays
\nthat  the  statement  is  to  be  used\tto  contradict\t the
\nsubsequent  version  in\t the  witness-box,  the\t proposition
\nbrings in, by construction, what he would have stated to the
\npolice within the meaning of the word ” statement “. Such  a
\nconstruction is not permissible.\n<\/p>\n
From  the  foregoing discussion the  following\tpropositions
\nemerge: (1) A. statement in writing made by a witness before
\na police officer in the course of investigation can be\tused
\nonly to contradict his statement in the witness-box and\t for
\nno  other purpose; (2) statements not reduced to writing  by
\nthe  police  officer cannot be used for\t contradiction;\t (3)
\nthough\ta particular statement is not expressly recorded,  a
\nstatement  that can be deemed to be part of  that  expressly
\nrecorded can be used for contradiction, not because it is an
\nomission strictly so-called but because it is deemed to form
\npart  of  the  recorded statement; (4)\tsuch  a\t fiction  is
\npermissible  by\t construction only in  the  following  three
\ncases:\t(i) when a recital is necessarily implied  from\t the
\nrecital\t or recitals found in the statement ;  illustration:
\nin  the\t recorded statement before the\tpolice\tthe  witness
\nstates\tthat  he saw A stabbing B at a particular  point  of
\ntime,  but  in the witness-box he says that he saw A  and  C
\nstabbing  B  at\t the same point of time;  in  the  statement
\nbefore\tthe police the word ” only ” can be  implied,  i.e.,
\nthe witness saw A only stabbing B; (ii) a negative aspect of
\na  positive  recital in a statement;  illustration:  in\t the
\nrecorded statement before the police the witness says that a
\ndark  man stabbed B, but in the witness-box he says  that  a
\nfair man stabbed B; the earlier statement must be deemed  to
\ncontain\t the  recital not only that the culprit was  a\tdark
\ncomplexioned   man  but\t also  that  be\t was  not  of\tfair
\ncomplexion;  and (iii) when the statement before the  police
\nand   that   before  the  Court\t  cannot   stand   together;
\nillustration: the witness says in the recorded
\n904<\/span>
\nstatement before the police that A after stabbing B ran away
\nby a northern lane, but in the Court he says that immediatly
\nafter stabbing he ran away towards the southern lane; as  he
\ncould  not  have run away immediately  after  the  stabbing,
\ni.e.,  at the same point of time, towards the northern\tlane
\nas  well as towards the southern lane, if one  statement  is
\ntrue, the other must necessarily be false.
\nThe aforesaid examples are not intended to be exhaustive but
\nonly illustrative.  The same instance may fall under one  or
\nmore  heads.   It is for the trial Judge to decide  in\teach
\ncase’  after  comparing the part or parts of  the  statement
\nrecorded by the police with that made in the witness-box, to
\ngive  a ruling, having regard to the  aforesaid\t principles,
\nwhether\t the recital intended to be used  for  contradiction
\nsatisfies the requirements of law.\n<\/p>\n
The  next point is what are the omissions in  the  statement
\nbefore\tthe police which the learned Sessions Judge did\t not
\nallow the accused to put to the witnesses for  contradicting
\ntheir\tpresent\t version.   The\t learned  Counsel  for\t the
\nappellants contends that the accused intended to put to\t the
\nwitnesses the following omissions, but they did not do so as
\nthe learned Sessions Judge disallowed the two questions\t put
\nto  P. W. 30 and made a considered order giving his  reasons
\nfor doing so, and that the learned Counsel thought it proper
\nnot  to put the same questions or other questions in  regard
\nto  omissions  to P. W. 30 or to the  other  witnesses\tthat
\nfollowed  him.\tThe said omissions are: (1) The\t warning  by
\nthe members of the gang on their arrival to the audience  at
\nthe  music  party  not to stir from their  places;  (2)\t the
\npresence of a gas lantern;(3) the  chase of Bharat Singh  by
\nthe assailants; (4) the\t scrutiny of the dead bodies by\t the
\ngang; and (5)  the return of the gang in front of the  house
\nof Bankey.  The learned Counsel for the respondent  contests
\nthis  fact and argues that only two omissions,\tnamely,\t the
\npresence  of  a\t gas-lantern and the scrutiny  of  the\tdead
\nbodies by the gang, were put in the cross-examination of  P.
\nW.  30 and no other omissions were put to him or  any  other
\nwitness, and that indeed the order
\n905<\/span>
\nof  the\t learned Sessions Judge did not\t preclude  him\tfrom
\nputting\t all the omissions to the witnesses and\t taking\t the
\ndecision   of\tthe   Judge  on\t the   question\t  of   their
\nadmissibility.\t He  further contends that even\t before\t the
\nlearned\t Judges\t of  the High Court  the  Advocate  for\t the
\nappellants  only made a grievance of hi,,; not\thaving\tbeen
\nallowed to put the aforesaid two omissions and did not argue
\nthat he intended to rely upon other omissions but did not do
\nso  as\the  thought that the learned  Sessions\tJudge  would
\ndisallow  them pursuant to his previous order.\t Before\t the
\nHigh Court an application was filed for summoning eight eye-
\nwitnesses on the ground that the learned Sessions Judge\t did
\nnot  allow  the\t Counsel for defence to\t put  the  omissions
\namounting to material contradiction to them, but no  mention
\nwas  made  in that application of the  number  of  omissions
\nwhich  the accused intended to put to the  eye-witnesses  if
\nthey  were summoned.  That application was filed on  May  1,
\n1957,  but  no attempt was made to get a  decision  on\tthat
\napplication  before the arguments were\theard.\t Presumably,
\nthe   Court  as\t well  as  the\tparties\t thought  that\t the
\napplication  could  more conveniently be disposed  of  after
\nhearing\t the  arguments.   On July 30,\t1957)  1  after\t the
\nappellants were fully heard, that application was  dismissed
\nand the detailed reasons for dismissing it were given in the
\njudgment,  which was delivered on September 11,\t 1957.\t The
\njudgment  of  the learned Judges of the High  Court  clearly
\nindicates  that\t what was argued before them  was  that\t two
\nomissions  sought to be put to P. W. 30 were disallowed\t and
\ntherefore the accused did not put the said omissions to\t the
\nother  witnesses.   It was not contended on  behalf  of\t the
\naccused\t that other omissions were intended to be  used\t for
\ncontradiction,\tbut  were not put to the  witnesses  as\t the
\nAdvocate  thought that in view of the order of\tthe  learned
\nSessions Judge they would not be allowed automatically.\t The
\nlearned Judges held that the said two omissions amounted  to
\nmaterial  contradiction and that the learned Sessions  Judge
\nwas wrong in disallowing them, but they ignored those
\n114<\/span>
\n906<\/span>
\ntwo  circumstances  and based their findings on\t matters  of
\ngreater certainty.  If really the Judges had made a  mistake
\nin appreciating the arguments of the learned Counsel for the
\nappellants in the context of omissions, one would expect the
\naccused\t to  mention  the said\tfact  prominently  in  their
\napplication  for  special leave.  Even if  they\t omitted  to
\nmention that fact in the application for special leave, they
\ncould have filed an affidavit sworn to by the Advocate,\t who
\nappeared  for  them before the learned Judges  of  the\tHigh
\nCourt,\tmentioning  the fact that in spite of  the  argument
\nspecifically  directed\tto the other omissions\tthe  learned
\nJudges\tby  mistake  or over-sight  failed  to\tnotice\tthat
\nargument.  The learned Counsel who argued before us did\t not
\nargue before the High Court, and, therefore, obviously he is
\nnot  in\t a position to assert that the\tJudges\tcommitted  a
\nmistake in omitting to consider the argument advanced before
\nthem.  But he made strenuous attempts before us to  persuade
\nus  to hold that there must have been a mistake.   He  would
\nsay that the learned Counsel had in fact relied upon all the
\naforesaid omissions in support of his contention that  there
\nwas development of the case of the prosecution from time  to
\ntime  and therefore he must have also relied upon  the\tsaid
\nomissions in the context of the statements made under s. 162
\nof  the Code of Criminal ‘Procedure; on the other hand,\t the
\nfact  that  the learned Judges considered  all\tthe  alleged
\nomissions  in connection with the said contention  and\tonly
\nconsidered  two omissions in regard to the contention  based
\non  s.\t162 of the Code is indicative of the fact  that\t the
\nlearned\t Counsel,  for reasons best known to  him,  did\t not
\nthink  fit  to\trely upon all the  alleged  omissions.\t The
\ndeposition of P.W. 30 also shows that only two omissions  in
\nthe  statement before the police, viz., the existence  of  a
\ngas-lantern and the scrutiny of the dead bodies by the gang,
\nwere  put  to  him  in\tcross-examination  and\tthe  learned
\nSessions Judge disallowed those questions on the ground that
\nthe  learned Counsel was not able to `how any law  entitling
\nhim to put the said questions.\tThough the witness was\texa-
\nmined at some length no other alleged omissions in
\n907<\/span>
\nthe  statement\tbefore the police were sought to be  put  to
\nhim.   It  would be seen from the short order  made  by\t the
\nlearned\t Sessions  Judge  at the time each one\tof  the\t two
\nquestions were put, that the learned Sessions Judge did\t not
\ngive  a\t general  ruling that no omissions  in\ta  statement
\nbefore\tthe police could be put to a witness.\tThe  rulings
\nwere  given,  having regard to the nature of  the  omissions
\nrelied upon.  But after the entire evidence of P. W. 30\t was
\nclosed, the learned Sessions Judge gave a considered  order.
\nEven  in  that order, he did not rule out all  omissions  as
\ninadmissible,  but clearly expressed the view that  if\twhat
\nwas  stated in the witness-box was irreconcilable with\twhat
\nwas omitted to be stated in the statement, it could go in as
\nmaterial contradiction.\t Even after this order, it was open`
\nto  the appellants to bring out all such omissions,  but  no
\nattempt was made by them to do go.  These circumstances also
\nsupport\t the  impression of the learned Judges of  the\tHigh
\nCourt  that what was argued before them was only in  respect
\nof the two specified omissions put to P. W. 30 in his cross-
\nexamination.   We, therefore, hold that only  two  omissions
\nrelating  to  the  existence  of  the  gas-lantern  and\t the
\nscrutiny of the faces of the deceased by the appellants were
\nput  to\t P. W. 30 and were intended to be put to  the  other
\nwitnesses,  but were not so done on the basis of the  ruling
\ngiven by the Court.\n<\/p>\n
Would those two omissions satisfy the test laid down by us ?
\nThe  witness stated in the Court that there was\t a  gas-lamp
\nand that some of the miscreants scrutinised the faces of the
\ndead bodies.  In their statements before the police they did
\nnot  mention  the said two facts and some of  the  witnesses
\nstated that there were lanterns.  Taking the gas-lamp first:
\nthe scene of occurrence was not a small room but one spread-
\nover from the well to Bankey’s house.  From that omission in
\nthe  statement it cannot necessarily be implied\t that  there
\nwas  no\t gas-lamp in any part of the  locality\twherein\t the
\nincident  took\tplace;\tnor  can it be\tsaid  that,  as\t the
\nwitnesses  stated  that there were lanterns,  they  must  be
\ndeemed\tto have stated that there was no gas-lamp,  for\t the
\nword ” lantern is
\n908<\/span>
\ncomprehensive  enough to take in a gas-lantern.\t It is\talso
\nnot  possible to state that the statements made\t before\t the
\npolice and those made before the Court cannot co-exist,\t for
\nthere  is  no  repugnancy between the two, as  even  on\t the
\nassumption  that  lantern excludes a gas-lantern,  both\t can
\nexist in the scene of occurrence.  The same can be said also
\nabout the scrutiny of the faces of the dead bodies.  In\t the
\nstatements  before the police, the movements of\t the  appel-
\nlants  were  given.   It was stated that they  shot  at\t the
\npeople\tand  decamped  with the gun of\tBharat\tSingh.\t The
\npresent\t evidence that in the course of their pursuit,\tthey
\nlooked\tat the faces of two of the dead bodies does  not  in
\nany  way  contradict  the previous versions,  for  the\tsaid
\nincident  would\t fit  in with the  facts  contained  in\t the
\nearlier\t statements.  The appellants could have shot at\t the
\naudience, pursued them, taken the gun of Bharat Singh and on
\ntheir way scrutinised the dead bodies.\tThe alleged omission
\ndoes not satisfy any of the principles stated by us.
\nIn  this view, it is unnecessary to express our\t opinion  on
\nthe question whether, if the said two omissions amounted  to
\ncontradiction  within the meaning of s. 162 of the  Code  of
\nCriminal   Procedure,  the  appellants\twere  in   any\t way
\nprejudiced in the matter of their trial.\n<\/p>\n
The   last  contention\tof  the\t learned  Counsel  for\t the
\nappellants  is\tthat the learned Judges of  the\t High  Court
\nacted  illegally  in testing the veracity of  the  witnesses
\nwith  reference\t to the contents of  the  first\t information
\nreport.\t  A perusal of the judgment of the High Court  shows
\nthat the Advocate for the appellants contended before  them,
\ninter  alia,  that the witnesses should not be\tbelieved  as
\ntheir  present\tversion\t was  inconsistent  with  the  first
\ninformation  report.   The learned Judges assumed  that\t the
\nsaid  process  was permissible and even on  that  assumption
\nthey  rejected\tthe  plea of the  learned  Counsel  for\t the
\nappellants  that  there was improvement in  the\t prosecution
\ncase.\tThe learned Judges were really meeting the  argument
\nof  the learned Counsel for the appellants.  It is  idle  to
\nsuggest\t that  they erred in law in relying upon  the  first
\ninfor-\n<\/p>\n
909<\/span><\/p>\n
mation\treport\tto discredit the witnesses  for\t the  simple
\nreason\tthat  they accepted the evidence in  spite  of\tsome
\nomissions in the first information report.
\nIn the result, we confirm the judgment of the High Court and
\ndismiss the appeal.\n<\/p>\n
HIDAYATULLAH, J.-The judgment which I am delivering has been
\nprepared by my learned brother, Imam, J. and myself
\nWe  agree that the appeal be dismissed but would express  in
\nour own words the grounds upon which it should be dismissed.
\nThe main contention advanced on behalf of the appellants was
\nas  follows:  There was no fair trial of the  appellants  as
\nthey had been deprived of the right of cross-examination  of
\nthe prosecution witnesses with reference to their statements
\nmade  to  the police during the police\tinvestigation.\t The
\ntrial  Judge had disallowed two questions in  this  respect,
\nand  the lawyer for the appellants regarded the decision  of
\nthe  learned Judge as one which prevented him  from  putting
\nfurther\t questions with respect to other matters  concerning
\nthe  police statements of the witnesses.  The order  of\t the
\nlearned Judge had to be respected.  The order of the learned
\nJudge  was  illegal, as on a proper  interpretation  of\t the
\nprovisions of s. 162 of the Code of Criminal Procedure,\t the
\nappellants  were entitled not only to put the two  questions
\nwhich  were  ruled out, but also questions with\t respect  to
\nother  matters arising out of the police statements  of\t the
\nwitnesses.  The purpose of cross-examination is to test\t the
\nreliability of the witnesses both as to what they had to say
\nabout\tthe   occurrence   itself   and\t  concerning   their
\nidentification\tof those who had participated in it.   There
\nwere several matters with respect to which, if questions had
\nbeen  allowed  to be put,  an  effective  -cross-examination
\nmight  have resulted and enabled the appellants to  persuade
\nthe  trial  Judge to hold that the witnesses  were  entirely
\nunreliable.  In a case of this kind in which the  appellants
\nwere involved, there were only two principal questions which
\nwere of vital importance:     (1) how far the witnesses\t had
\nimproved their
\n910<\/span>
\nstory in their evidence in Court from what they had said  to
\nthe police concerning the occurrence, and (2) the  existence
\nof  opportunity\t and  sufficient  light\t to  enable   proper
\nidentification.\n<\/p>\n
It  may\t be  assumed,  although it  has\t been  a  matter  of
\ncontroversy,  that the order of the trial Judge\t disallowing
\nthe  two  questions  which were put was\t understood  by\t the
\nlawyer for the defence to mean that all similar questions in
\nthe  nature  of\t omissions in  the  police  statements\twith
\nrespect\t to matters stated in Court would be disallowed\t and
\ntherefore  no attempt was made to put further  questions  to
\nthe witnesses in this respect.\n<\/p>\n
Unfortunately,\tthe lawyer for the defence had not  in\tthis
\nparticular case laid any adequate foundation upon which\t the
\ntwo  questions,\t which\twere  ruled  out,  could  have\tbeen
\nproperly  put.\t From that point of view, the order  of\t the
\ntrial Judge in disallowing those questions was not improper.
\nIt  could not, therefore, be said that the trial  Judge\t had
\ndone  anything\twhich  could  be  rightly  characterised  as
\ninfringement  of  the provisions of s. 162 of  the  Code  of
\nCriminal Procedure or of the Indian Evidence Act, or even of
\nthe rules of natural justice.\n<\/p>\n
Johari\tChowkidar had reported the occurrence to the  police
\nstation, which was a brief statement.  Certain matters were,
\nhowever,  definitely  mentioned\t the names  of\tthe  persons
\nrecognised  in the occurrence, the number of persons  killed
\nand injured, the taking away of a gun which was with  Bharat
\nSingh, Bankey Kumhar firing his gun at the culprits in\tsuch
\na  manner that some of them must have been injured, and\t the
\nexistence of light from the moon and lantern.  The principal
\ncomment had been that in this report there was no mention of
\nthe culprits having advanced from the well towards the\topen
\nplace  where villagers had gathered to hear the\t music.\t  On
\nthe  contrary, the first information report  indicated\tthat
\nthe  firing  was done from the parapet of the well.   It  is
\nclear,\thowever, from Johari’s statement that  the  culprits
\nhad  taken away the gun which was with Bharat  Singh.\tThis
\ncould only have been done if the culprits had
\n911<\/span>
\nadvanced from the well to the place where the villagers\t had
\nassembled.\n<\/p>\n
It  was then commented that in the first information  report
\nthe culprits were said to have come from the southern  lane,
\nwhile  in Court the evidence was that they had come  to\t the
\nwell from the eastern lane.  The discrepancy is a minor one.
\nJoliari\t must have been concerned with reporting  the  first
\nfiring from the well, and he might have mistaken the  actual
\ndirection  from which the culprits had approached the  well.
\nJohari’s statement made no mention of the culprits  uttering
\nany  warning  that no one was to run away as  they  advanced
\nfrom the well, whereas in Court the witnesses spoke to\tthat
\neffect.\t  This\twas  a detail which Johari  might  not\thave
\nconsidered to be of sufficient importance, as he was anxious
\nto  make  a  bare statement in order to get  the  police  to
\nproceed\t to the place of occurrence as quickly as  possible.
\nJohari’s  statement  also makes no mention of  the  culprits
\nexamining  the bodies of the dead and examining their  faces
\nand exclaiming that Asa Ram, one of the men whom they wished
\nto kill, had been killed.  Here again, this was a matter  of
\ndetail\twhich Johari might not have considered necessary  to
\nmention.   The first information report made no\t mention  of
\nthe  existence of gas light.  It did, however,\tmention\t the
\nexistence  of light of lantern and existence  of  moonlight.
\nThe  existence\tof  light from lantern\tand  the  full\tmoon
\nobviously was sufficient to recognise known persons.  It  is
\nin evidence that the appellants were known for several years
\nto the witnesses who had identified them as participants  in
\nthe  occurrence.   It  could  not  be  said  with   absolute
\ncertainty  that\t the mention of the existence  of  light  of
\nlantern excluded the existence of gas light.  The  statement
\nof  Johari gives clear indication that the culprits did\t not
\nremain\tall  the time at the well, because  they  must\thave
\nadvanced  to take away the gun which was with Bharat  Singh.
\nThe culprits must have stayed at the place of occurrence for
\nsome  time to enable Bankey Kumhar to fire his gun  at\tthem
\nand  to convey to Johari’s mind the certainty that  some  of
\nthe culprits must have been injured.  Reference is made only
\nto
\n912<\/span>
\nsome of the details and not to all the discrepancies pointed
\nout in order to determine whether the alleged improvement in
\nthe  story  of\tthe witnesses in Court from  what  they\t are
\nalleged\t to have stated to the police was with reference  to
\nvital  matters,\t which went to the root of  the\t prosecution
\ncase.\n<\/p>\n
It is apparent from what has been stated above that even  if
\nthe  defence  had been allowed to put  questions  concerning
\nthese  alleged omissions in the statements of the  witnesses
\nto  the\t police, it could not have made\t their\tevidence  in
\nCourt  unreliable  with respect to any\tmaterial  particular
\nconcerning  the\t occurrence  or the  identification  of\t the
\naccused.\n<\/p>\n
From the above, it seems to us that there is no merit in the
\nappeal.\t  As, however, considerable argument has  been\tmade
\nconcerning the right of cross. examination and as to how the
\nprovisions  of\ts.  162 of the Code  of\t Criminal  Procedure
\nshould\tbe construed, it becomes necessary to  consider\t the
\nsubmissions of the learned counsel for the appellants.
\nThe  provisions of the Code of.\t Criminal Procedure of\t1861
\nand 1872 have been referred to by our learned brother, Subba
\nRao,  J. Section 162 of the Code of 1872 made it clear\tthat
\nexcept for a dying declaration and matters coming within the
\nprovisions  of s. 27 of the Indian Evidence Act of 1872,  no
\nstatement  of  any person made to a police  officer  in\t the
\ncourse of in. vestigation, if reduced into writing, could be
\nused as evidence against the accused.  There was no restric-
\ntion  as to the extent of the right of an accused to  cross-
\nexamine\t a prosecution witness concerning his  statement  to
\nthe police.  Section 162 of the Code of 1898 prohibited\t the
\nuse of a statement reduced into writing, as evidence  except
\nany statement falling within the provisions of s. 32 of\t the
\nIndian\tEvidence  Act, 1872.  The proviso to  this  section,
\nhowever,  expressly stated that in spite of the\t prohibition
\nin  the main provision, the accused could use such a  state-
\nment  to impeach the credit of the witnesses in\t the  manner
\nprovided  in  the Indian Evidence Act of 1872.\tIt  will  be
\nseen  therefore\t that until 1898 there was  no\trestriction,
\nimposed upon the accused as to the extent
\n913<\/span>
\nof his right of cross-examination.  As s. 162 of the Code of
\n1898  entirely prohibited the use of the  statement  reduced
\ninto writing as evidence, the proviso to it safeguarded\t the
\nright  of the accused to impeach the credit of such  witness
\nin  the\t manner provided in the Indian Evidence\t Act,  1872.
\nUnder  the  Indian Evidence Act, a witness’s credit  can  be
\nimpeached under ss. 145 and 155 of that Act.  The manner  in
\nwhich the provisions of these sections could be utilized  to
\nimpeach\t the credit of a witness covers a wide\tfield.\t If,
\nhowever, it was intended to contradict a witness  concerning
\nhis  previous  statement  reduced  into\t writing,  then\t the
\nprovisions of s. 145 require that those parts of the writing
\nby  which  it was sought to contradict the witness  must  be
\nshown to him.  There can, be no doubt that the provisions of
\nthe  Code  from 1861 to 1898 in no way curbed the  right  of
\ncross-examination on behalf of the accused.  The  provisions
\nwere intended to protect the accused in that no statement of
\na  witness to the police reduced into writing could be\tused
\nas evidence against him, but the right to cross-examine\t the
\nwitness\t to  the  fullest  extent  in  accordance  with\t the
\nprovisions of the Indian Evidence Act in order to show\tthat
\nhe  was unreliable, remained unaffected.  The real  question
\nfor  consideration is whether the amendment of the  Code  in
\n1923  brought about such a radical change in the  provisions
\nof s. 162 of the Code as to suggest that the Legislature had
\ntaken  a  retrograde step, and had intended to\tdeprive\t the
\naccused\t of  the right of cross-examination  of\t prosecution
\nwitnesses  concerning their police statements except in\t one
\nrestricted particular, namely, to make use of the statements
\nreduced\t into  writing to contradict the  witnesses  in\t the
\nmanner provided by s. 145 of the Indian Evidence Act.
\nThe provisions of s. 162 of the Code of 1898 were amended in
\n1923  in  the  hope that the  amendment\t would\tresolve\t the
\nvarious\t doubts\t which\thad  sprung  up\t as  the  result  of
\ndivergent  judicial  opinions  as to the  meaning  of  these
\nProvisions.   The provisions of s. 162 of the Code  of\t1898
\nhad been variously construed,
\n115<\/span>
\n914<\/span>
\nand  the  amendment in 1923 has not improved  matters.\t The
\namended\t section  still remains difficult to  construe.\t  We
\nshall endeavour now to construe it.\n<\/p>\n
Under  s.  161 of the Code, the police officer\tmay  examine
\norally\tany person supposed to be acquainted with the  facts
\nand  circumstances  of the case.  He may  also\treduce\tinto
\nwriting\t any  statement made to him in the  course  of\tsuch
\nexamination,  and  if he does so, he must  make\t a  separate
\nrecord of the statement of
\neach such person.\n<\/p>\n
The legislature has, however, put restrictions upon the\t use
\nof  such statements at the inquiry or trial of the  offence.
\nThe  first  restriction\t is that no statement  made  by\t any
\nperson\tto  a police officer, if reduced  into\twriting,  be
\nsigned\tby the person making it.  The intention\t behind\t the
\nprovision  is easy to understand.  The legislature  probably
\nthought that the making of statements by witnesses might  be
\nthwarted, if the witnesses were led to believe that  because
\nthey had signed the statements they were bound by them,\t and
\nthat  whether  the statements were true or  not,  they\tmust
\ncontinue  to stand by them.  The legislature  next  provides
\nthat a statement, however recorded, or any part of it  shall
\nnot  be\t used  for  any purpose (save  as  provided  in\t the
\nsections  at the inquiry or trial in respect of any  offence
\nunder investigation at the time such statement is wade.\t The
\nobject\there  is not easily discernible, but perhaps  is  to
\ndiscourage over-zealous police officers who might  otherwise
\nexert themselves to improve the statements made before them.
\nThe Privy Council considered the intention to be:
\n” If one had to guess at the intention of the legislature in
\nframing a section in the words used, one would suppose\tthat
\nthey  had  in mind to encourage the free disclosure  of\t the
\ninformation  or to protect the person making  the  statement
\nfrom  a\t supposed unreliability of police  testimony  as  to
\nalleged statements or both.”\n<\/p>\n
It  is possible that the legislature had also in  mind\tthat
\nthe  use  of  statements made under  the  influence  of\t the
\ninvestigating  agency might, unless restricted to a use\t for
\nthe benefit of the accused, result in considerable
\n915<\/span>
\nprejudice  to him.  But whatever the intention which led  to
\nthe imposition of the restrictions, it is manifest that\t the
\nstatements,  however recorded, cannot be used except to\t the
\nextent allowed by the section.\tThe prohibition contained in
\nthe words “any purpose” is otherwise absolute.
\nThen follow two provisos.  The first gives the right to\t the
\naccused\t to make use of the statements for  contradicting  a
\nwitness for the prosecution in the manner provided by s. 145
\nof  the Indian Evidence Act.  It also gives a right  to\t the
\nprosecution   to   use\tthe  statement\t for   purposes\t  of
\nreexamination  of the same witness but only to\texplain\t any
\nmatter referred to in the cross-examination of the witness.
\nThe  first  proviso,  when  analysed,  gives  the  following
\ningredients:\n<\/p>\n
(i)  A prosecution, witness Is called for the prosecution ;\n<\/p>\n
(ii) whose statement has previously been reduced to writing;\n<\/p>\n
(iii)\t  The accused makes a request\n<\/p>\n
(iv) The  accused is furnished with a copy of  the  previous
\nstatement;\n<\/p>\n
(v)  In\t order\tthat  any part of such\tstatement,  if\tduly
\nproved, may be used to contradict such witness in the manner
\nprovided by s. 145 of the Indian Evidence Act.
\nIf  the\t a accused exercises the right in (v) above  in\t any
\ninstance,  then\t the prosecution has the right\tto  use\t the
\nstatement  in the reexamination of the witness but  only  to
\nexplain any matters referred to by him in cross-examination.
\nSection 145 of the Indian Evidence Act reads:
\nCross-examination  as to previous statements in\t writing:  A
\nwitness may be cross-examined as to previous statements made
\nby  him in writing or reduced into writing, and relevant  to
\nmatters\t in  question, without such writing being  shown  to
\nhim, or being proved ; but, if it is intended to  contradict
\nhim  by the writing, his attention must, before the  writing
\ncan be proved, be called to those parts of it, which are  to
\nbe used for the purpose of contradicting him.”\n<\/p>\n
916<\/span><\/p>\n
The section analysed, gives the following result:
\n(1)  Witnesses\t can  be  cross-examined  as   to   previous
\nstatements in writing or reduced into writing;
\n(2)  These  writings need not be shown to the  witnesses  or
\nproved beforehand;\n<\/p>\n
(3)  But  if  the  intention is to contradict  them  by\t the
\nwritings,\n<\/p>\n
(a)  their attention must be drawn to those parts which\t are
\nto be used for contradiction ;\n<\/p>\n
(b)  This should be done before proving the writings.
\nOur learned brother, Subba Rao, J., restricts the use by the
\naccused\t of  the  previous statements to  the  mechanism  of
\ncontradiction  as detailed in (3) above, but says  that\t the
\naccused\t has  no  right to proceed under (1)  and  (2).\t  He
\ndeduces\t this  from  the  words of s. 162  of  the  Code  of
\nCriminal Procedure, where it is provided :
\n” in order that any part of such statement, if duly  proved,
\nmay  be\t used  to  contradict such  witness  in\t the  manner
\nprovided by section 145 of the Indian Evidence Act, 1872.”
\nThe fact that the accused can use the previous statement for
\nthe  purpose  of  contradicting,  shows\t that  the  previous
\nstatement  cannot  be used for\tcorroborating  the  witness.
\nAlso  there must be some basis for contradicting.  This\t may
\narise,\t because  of  there  being  a  contrary\t  statement,
\nirreconcilable\tstatement or even material  omissions.\t The
\naccused can establish a contradiction by cross-examining the
\nwitness\t but only so as to bring out a contradiction and  no
\nmore.  We regret we cannot agree (and we say this with\tpro-
\nfound  respect) that the accused is not entitled  to  cross-
\nexamine\t but  only  to\tcontradict.   In  our  opinion,\t the
\nreference to s. 145 of the Indian Evidence Act brings in the
\nwhole  of the manner and machinery of s. 145 and not  merely
\nthe  second part.  In this process, of course,\tthe  accused
\ncannot go beyond s. 162 or ignore what the section prohibits
\nbut  cross-examination to establish a contradiction  between
\none statement and another is certainly permissible.
\nThis question loses much of its importance when
\n917<\/span>
\nthere  are patent contradictions and they can be put to\t the
\nwitness\t  without  any\tcross-examination  as  in  the\t two
\nstatements:\n<\/p>\n
(a)  I saw A hit B.\n<\/p>\n
(b)  I did not see A hit B.\n<\/p>\n
But there are complex situations where the contradiction  is
\nmost  vital  and relevant but is not so patent.,  There\t are
\ncases of omissions on a relevant and material point.  Let us
\nillustrate our meaning by giving two imaginary statements:\n<\/p>\n
(a)  When I arrived at the scene I saw that X was running   away,
\nchased by A and B who caught him.\n<\/p>\n
(b)  When I arrived at the scene I saw X take out a dagger  from
\nhis pocket, stab D in his chest and then take to his  heels.
\nHe was chased by A and B who caught him.\n<\/p>\n
There  is an omission of two facts in the  first  statement,
\nviz.,  (a) X took out a dagger from his pocket, and  (b)  he
\nstabbed\t D  in\tthe chest.  These two  statements  or  their
\nomission  involve  a contradiction as to the  stage  of\t the
\noccurrence, when the observation of the witness began.
\nWhat  s. 145 of the Indian Evidence Act provides is  that  a
\nwitness\t may  be contradicted by a  statement  reduced\tinto
\nwriting\t and  that  is also the use  to\t which\tthe  earlier
\nstatement  can be put under s. 162 of the Code\tof  Criminal
\nProcedure.    When   some   omissions\toccur,\t there\t  is
\ncontradiction in one sense but not necessarily on a relevant
\nmatter.\t  The  statements of witnesses may and\tdo  comprise
\nnumerous  facts and circumstances, and it happens that\twhen
\nthey  are  asked to narrate their version over\tagain,\tthey
\nomit  some  and add others.  What use can be  made  of\tsuch
\nomissions or additions is for the accused to decide, but  it
\ncannot\tbe doubted that some of the omissions  or  additions
\nmay have a vital bearing upon the truth of the story  given.
\nWe  do not think that by enacting s. 162 in the words  used,
\nthe legislature intended a prohibition of  cross-examination
\nto  establish which of the two versions is an authentic\t one
\nof the events as seen by the witness.  The use of the words”
\nreexamination and ” cross-examination ” in the same
\n918<\/span>
\nproviso\t shows that cross-examination is contemplated or  in
\nother  words, that the manner of contradiction under s.\t 145
\nof the Indian Evidence Act comprises both  cross-examination
\nand  contradiction.   Indeed, the second part  is  only\t the
\nfinal\t       stage\t     of\t\tthe\t     contra-\n<\/p>\n
diction,which includes the earlier stages.  Reexamination is
\nonly permissible where there is cross-examination.
\nIt must not be overlooked that the cross-examination must be
\ndirected  to  bringing\tout  a\tcontradiction  between\t the
\nstatements and must not subserve any other purpose.  If\t the
\ncross-examination  does\t anything else, it  will  be  barred
\nunder s. 162, which permits the use of the earlier statement
\nfor  contradicting a witness and nothing else.\t Taking\t the
\nexample given above, we do not see why cross-examination may
\nnot be like this:\n<\/p>\n
Q.   I\tput it to you that when you arrived on the  scene  X
\nwas  already running away and you did not actually  see\t him
\nstab D as you have deposed to-day ?\n<\/p>\n
A.   No. I saw both the events.\n<\/p>\n
Q.   If\t that  is so, why is your statement  to\t the  police
\nsilent as to stabbing ?\n<\/p>\n
A. I stated both the facts to the police.\n<\/p>\n
The  witness  can  then be contradicted\t with  his  previous
\nstatement.    We   need\t hardly\t point\tout  that   in\t the
\nillustration  given  by us, the evidence of the\t witness  in
\nCourt  is direct evidence as opposed to testimony to a\tfact
\nsuggesting  guilt.  The statement before the police only  be
\ncalled circumstantial evidence of, complicity and not direct
\nevidence in the strict sense.\n<\/p>\n
Of course, if the questions framed were:\n<\/p>\n
Q.   What did you state to the police ? or
\nQ.   Did you state -to the police that D stabbed X ?
\nThey  may be ruled out as infringing s. 162 of the  Code  of
\nCriminal   Procedure,  because\tthey  do  not  set   tip   a
\ncontradiction  but attempt to get a fresh version  from\t the
\nwitnesses with a view to contradicting him.  How the  cross-
\nexamination  can  be made must obviously vary from  case  to
\ncase,  counsel\tto counsel and statement to  statement.\t  No
\nsingle\trule  can  be laid down and  the  propriety  of\t the
\nquestion in the light of
\n919<\/span>
\nthe  two  sections  can be found only  when  the  facts\t and
\nquestions are before the Court.\t But we are of opinion\tthat
\nrelevant   and\t material   omissions\tamount\t to    vital
\ncontradictions,\t  which\t  can  be  established\t by   cross-
\nexamination  and confronting the witness with  his  previous
\nstatement.\n<\/p>\n
The  word ” contradict ” has various ‘Meanings, and  in\t the
\nOxford\tEnglish Dictionary it is stated as ” To be  contrary
\nto in effect, character, etc. ; to be directly opposed to go
\ncounter\t to, go against ” as also ” to affirm  the  contrary
\nof; to declare untrue or erroneous; to deny categorically  ”
\nand  the  word\t”  contradiction ” to  mean  ”\tA  state  or
\ncondition  of  opposition  in things  compared\t;  variance;
\ninconsistency,\tcontrariety  “. In  Shorter  Oxford  English
\nDictionary,  ”\tcontradict  ”  is said\tto  mean  “To  speak
\nagainst;  to  oppose in speech ; to forbid ; to\t oppose;  to
\naffirm\tthe contrary of; to declare untrue or erroneous;  to
\ndeny  to be contrary to go counter to and go against  and  ”
\ncontradiction  ” to mean ” A state of opposition  in  things
\ncompared;  variance; inconsistency”.  The meaning  given  to
\nthe  words  ,contradict\t ” and ” contradiction\t”  in  these
\nDictionaries  must at least include the case of an  omission
\nin  a  previous statement which by  implication\t amounts  to
\ncontradiction  and  therefore such an omission is  a  matter
\nwhich  is  covered  by\tthe first  proviso  to\ts.  162\t and
\nquestions  in cross. examination can be put with respect  to
\nit  in over to contradict the witness.\tIt is  difficult  to
\nsay  as an inflexible rule that any other kind\tof  omission
\ncannot be put to a witness in order to contradict him,\twhen
\nthe  proper  foundation\t had  been  laid  for  putting\tsuch
\nquestions.  The words ” to contradict him ” appearing in  s.
\n145  of the Evidence Act must carry the same meaning as\t the
\nwords ” to contradict such witness ” in s. 162 of the  Code.
\nIn a civil suit, where the provisions of s. 162 of the\tCode
\nof  Criminal  Procedure\t have no application,  would  it  be
\ncorrect\t to say that only questions concerning omissions  of
\nthe  kind suggested by our learned brother could be put\t and
\nnone other ?  We cannot see why a question of the nature  of
\ncross-examination regarding an omission with respect to a
\n920<\/span>
\nmatter\twhich  the witness omitted to make in  his  previous
\nstatement  and\twhich, if made, would. have  been  recorded,
\ncannot\tbe  put.  The facts and circumstances of  each\tcase
\nwill determine whether any other kind of omission than\tthat
\nreferred to by our learned brother could be put to a witness
\nin  order to contradict him.  It would be for the  Judge  to
\ndecide in each case whether in the circumstances before\t him
\nthe question could be put.  The purpose of cross-examination
\nis  to test the veracity of the statement made by a  witness
\nin  his examination-in-chief as also to impeach his  credit.
\nNot only is it the right of the accused to shake the  credit
\nof a witness, but it is also the duty of the Court trying an
\naccused\t to satisfy itself that the witnesses are  reliable.
\nIt would be dangerous to lay down any hard and fast rule.
\nWe pause to look at the matter from another angle.  We shall
\nassume that the interpretation which the State claims should
\nbe put upon s. 162(1) is correct and compare the  respective
\nrights\tof  the accused and the prosecution.   According  to
\nthis  interpretation,  the accused has no  right  of  cross-
\nexamination  in\t respect of the contradiction.\t This  means
\nthat no question can be put about the previous statement but
\nonly  the  part\t in which there is a  contradiction  can  be
\nbrought to the witness’s notice and his explanation, if any,
\nobtained.   In other words, there is only ” contradiction  ”
\nand no more.  But when the accused has used the statement to
\ncontradict the witness-it may be only on one point-what\t are
\nthe rights of the prosecution ? The prosecution can use\t any
\npart  of  the  statement in the reexamination  not  only  to
\nexplain the I contradiction’ but also to explain any  matter
\nreferred to in the cross-examination of the witness.
\nIf  I contradiction ‘ does not include the right  of  cross-
\nexamination,  the right of the prosecution must\t necessarily
\nextend\tto  reexamination  in respect of  any  other  matter
\nneeding\t explanation  in  the  cross-examination  at  large.
\nThus, the accused cannot ask a single question of the nature
\nof   cross-examination\t but  because  he  sets\t  up   a   I
\ncontradiction’\tin  the narrow sense,  the  prosecution\t can
\nrange all over the previous
\n921<\/span>
\nstatement and afford the witness a chance of explaining\t any
\nmatter\tin his cross-examination by re-examining  him  which
\nright  includes the possibility of asking leading  questions
\nwith the permission of the Court.\n<\/p>\n
Thus, the accused makes a I contradiction’ at his own peril.
\nBy making a single I contradiction’, the accused places\t the
\nentire statement in the hands of the prosecution to  explain
\naway  everything  with its assistance.\tOne wonders  if\t the
\nlegislature  intended such a result, for it is too  great  a
\nprice  for  the\t accused  to pay  for  too  small  a  right.
\nFortunately,  that is not the meaning of s. 162 of the\tCode
\nof  Criminal Procedure, and it is not necessary to read\t the
\nword  ” cross-examination ” in the proviso in a sense  other
\nthan what it has.\n<\/p>\n
The right of both the accused and the prosecution is limited
\nto  contradictions.  It involves cross. examination  by\t the
\naccused as to that contradiction within s. 145 of the Indian
\nEvidence Act and reexamination in relation to the matters  I
\nreferred  to in the cross-examination of the witness’.\t The
\nprosecution cannot range at will to explain away every\tdis-
\ncrepancy  but only such as the accused under his  right\t has
\nbrought\t to light.  In our opinion, reading the\t section  in
\nthis way gives effect to every part and does not lead to the
\nstartling and, if we may say so, the absurd results which we
\nhave endeavoured to set out above.\n<\/p>\n
The  question  may  be asked, how is there to  be  a  cross-
\nexamination about a previous statement ? It is difficult  to
\nillustrate   one’s   meaning  by  entering  into   such\t  an
\nexposition.   Any  one interested to see  the  technique  is
\ninvited to read Mrs. Maybrick’s trial in the Notable English
\nTrials\t(1912) at pages 77-79, the trial of William  Palmer,
\npages 35,36, 50-51.  Examples will be found in every leading
\ntrial.\t The question is, did the legislature intend  giving
\nthis right ? In our opinion, the legislature did and for the
\nvery  obvious  reason that it gave the\tprosecution  also  a
\nchance\tto re-examine the witness, to explain I\t any  matter
\nreferred to in the cross-examination of the witness.\n<\/p>\n
116<\/span>
\n922<\/span><\/p>\n
We  respectfully  do not agree that the\t section  should  be
\nconstrued  in the way our learned brother has construed\t it.
\nThough we agree as to the result, our opinion cannot be left
\nunexpressed.  If the section is construed too narrowly,\t the
\nright it confers will cease to be of any real protection  to
\nthe accused, and the danger of its becoming an impediment to
\neffective  cross-examination  on behalf of  the\t accused  is
\napparent.\n<\/p>\n
This brings us to the consideration of the questions,  which
\nwere asked and disallowed.  These were put during the cross-
\nexamination of Bankey, P. W. 30.  They are:\n<\/p>\n
Q.   Did  you  state to the investigating officer  that\t the
\ngang rolled the dead bodies of Nathi, Saktu and Bharat Singh
\nand scrutinized them, and did you tell him that the face  of
\nAsa Ram resembled that of the deceased Bharat Singh ?
\nQ.   Did  you state to the investigating officer  about\t the
\npresence of the gas lantern ?\n<\/p>\n
These  questions  were defective, to start with.   They\t did
\nriot set up a contradiction but attempted to obtain from the
\nwitness a version of what he stated to the police, which  is
\nthen contradicted.  What is needed is to take the  statement
\nof  the\t police\t as it is,  and\t establish  a  contradiction
\nbetween\t that  statement and the evidence in Court.   To  do
\notherwise  is to transgress the bounds set by s. 162  which,
\nby  its absolute prohibition, limits even  cross-examination
\nto contradictions and no more.\tThe cross-examination cannot
\neven   indirectly  subserve  any  other\t purpose.   In\t the
\nquestions with which we illustrated our meaning, the witness
\nwas  not asked what he stated to the police,. but  was\ttold
\nwhat  he had stated to the police and asked to\texplain\t the
\nomission.  It is to be borne in mind that the statement made
\nto the police is I duly proved’ either earlier or even later
\nto establish what the witness had then stated.
\nIn  our\t opinion, the two questions were defective  for\t the
\nreasons\t given\there,  and were properly  ruled\t out,  even,
\nthough\tall  the reasons given by the Court  may  not  stand
\nscrutiny.  The matter was not followed up
\n923<\/span>
\nwith  proper questions, and it seems that similar  questions
\non these and other points were not put to the witness out of
\ndeference  (as\tit is now suggested) to the  ruling  of\t the
\nCourt.\t The accused can only blame themselves, if they\t did
\nnot.\n<\/p>\n
The  learned Judges of the High Court ruled out\t from  their
\nconsideration that these two circumstances made it  possible
\nfor  the witnesses to recognise the accused, but  hold\tthat
\nthere was ample opportunity even otherwise for the witnesses
\nto  do\tso.  The High Court was justified in so\t doing,\t and
\nthere  being ample evidence on which they could come to\t the
\nconclusion  that the witnesses had, in fact, recognised\t the
\naccused,  it must inevitably be regarded as one of  fact  in
\nregard to which this Court does not interfere.
\nSince  no other point was argued, the appeal must fail,\t and
\nwe agree that it be dismissed.\n<\/p>\n
Appeal dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Tahsildar Singh And Another vs The State Of Uttar Pradesh on 5 May, 1959 Equivalent citations: 1959 AIR 1012, 1959 SCR Supl. (2) 875 Author: B P Sinha Bench: Sinha, Bhuvneshwar P. PETITIONER: TAHSILDAR SINGH AND ANOTHER Vs. RESPONDENT: THE STATE OF UTTAR PRADESH DATE OF JUDGMENT: 05\/05\/1959 BENCH: SINHA, BHUVNESHWAR […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-36563","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nTahsildar Singh And Another vs The State Of Uttar Pradesh on 5 May, 1959 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/tahsildar-singh-and-another-vs-the-state-of-uttar-pradesh-on-5-may-1959\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Tahsildar Singh And Another vs The State Of Uttar Pradesh on 5 May, 1959 - 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