Tahsildar Singh & ANR Vs. The State of Uttar Pradesh [1959] INSC 63 (5 may 1959)
1959 Latest Caselaw 63 SC

Tahsildar Singh & ANR Vs. The State of Uttar Pradesh [1959] INSC 63 (5 May 1959)

SINHA, BHUVNESHWAR P.

IMAM, SYED JAFFER KAPUR, J.L.

SARKAR, A.K.

SUBBARAO, K.

HIDAYATULLAH, M.

CITATION: 1959 AIR 1012 1959 SCR Supl. (2) 875

CITATOR INFO :

R 1960 SC 706 (27,28) R 1962 SC 605 (26) R 1964 SC1563 (8) R 1970 SC1006 (7) RF 1972 SC1004 (82) E 1974 SC 308 (1,6,10) RF 1975 SC 667 (95) RF 1975 SC1758 (18) D 1977 SC1579 (28) RF 1981 SC1068 (3)

ACT:

Criminal Trial-Police Statements-Use of-Omission, when amounts to contradiction-Code of Criminal Procedure, 1898 (V of 1898), s. 162-Indian Evidence Act, 1872 (1 of 1872), s. 14.5.

HEADNOTE:

A music performance attended by a large number of persons including two police informers Bankey and As a Ram was going on a platform in front of the house of one Ram Saroop.

At that time there was a full moon and the light of a gas lamp and several lanterns. The informers had placed their guns on a cot close to the platform and one Bharat Singh was sitting on that cot. The accused along with 15 or 20 persons suddenly arrived armed with fire arms to kill the informers and stood behind a well on the southern side, from where they shouted that no one should run away and advanced firing shots. Two persons were killed on the spot. Bharat Singh was hit and he ran northwards pursued by the culprits and was also shot dead. The culprits turned over the dead bodies and on seeing Bharat Singh's face they exclaimed that As a Ram informer had been killed. They then passed in front of Ram Saroop's house and disappeared. While going they carried away Bankey's gun from the cot. The appellants and seven others were sent up for trial for this occurrence. At the trial the defence alleged that prosecution had developed its case. The police statements of the eye witness did not mention the facts regarding the scrtitiny of the (lead bodies and the presence of the gas lantern, and the defence counsel put the following two questions with respect to these omissions to the first eye witness produced :

1. " Did you state to the Investigating Officer that the gang rolled the dead bodies of Nathi, Saktu and Bharat Singh and scrutinised them and did you tell him that the face of As a Ram resembled with that of the deceased Bharat Singh ?"

2. " Did you state to the Investigating Officer about the presence of the gas lantern ?" The Sessions judge disallowed the questions and on account of this order similar questions were not put to the other eye witnesses. The Sessions judge convicted the appellants under s. 302 Indian Penal Code and sentenced them to death.

The appellants appealed to the High Court and made an application alleging that the Sessions judge had not allowed the defence counsel to put omissions amounting to material contradictions to 876 the eye witnesses and prayed that the eye witnesses be summoned so that the questions disallowed may be put to them.

Though the High Court held that the omissions amounted to contradictions and that the Sessions judge had wrongly disallowed cross-examination with respect thereto, it found that even after ignoring these two circumstances there were other facts which showed that the culprits had come close to the eye witnesses and that they had unmistaken opportunity of identifying the appellants in the light of the full moon and the lanterns. The High Court accordingly dismissed the application for summoning the eye witnesses holding that no prejudice had been caused to the appellants by the disallowance of the cross-examination in respect of omissions and also dismissed the appeals and confirmed the convictions and sentences of the appellants.

Held, (Per SINHA, KAPUR, SARKAR and SUBBA RAO, JJ.) that the omissions did not amount to contradictions -and that the Sessions judge was right in disallowing cross-examination in respect thereof. A statement to the police could be used under s. 162 of the Code only for the purpose of contradicting a statement in the witness box under the second part of s. 1, Evidence Act, but it could not be used for the purpose of cross-examining the witness under the first part of s. 145. A statement made to the police but not reduced to writing, could not be used for any purpose, not even for contradiction. It was incorrect to say that all omissions in regard to important features of the incident which were expected to be included in the statement made before the police, should be treated as contradictions.

An omission in the police statement could amount to a statement and be used as a contradiction only when (i) it was necessarily implied from the recital or recitals found in the statement, (ii) it was negative aspect of a positive recited in the statement or (iii) when the statement before the police and that before the Court could not stand together. It was for the the trial judge to decide in each case, after comparing the part or parts of the statement recorded by the police with that made in the witness-box, whether the recital intended to be used for contradiction was one of the nature indicated above.

In Ye Ponnusami Chetty, (1933) I.L.R. 56 Mad. 475 ; In 'Ye Guruva Vannan, I.L.R. (1944) Mad. 897; Ram Bali v. State, A.I.R. 1952 All 289; Badri Chaudhry v. State, A.I.R. 1926 Pat. 20, Sakhawat v. Crown, I.L.R. (1937) Nag. 277, referred to.

Rudder v. The State, A.I.R. 1957 All. 239; Mohinder Singh v. Emperor, A.I.R. 1932 Lah. 103; Yusuf Mia v. Emperor, A.I.R.

1938 Pat. 579; State of M. P. v. Banshilal Behari, A.I.R.

1958 M.P. 13, disapproved.

Held, (Per IMAM and HIDAYATULLAH, JJ.) that the questions that were put by the defence counsel were properly ruled out by the Sessions judge as they did not set up contradictions, but attempted to obtain from the witnesses versions of what they 877 had stated to the police which were then to be contradicted.

The reference to s. I45 Evidence Act in s. 162 of the Code of Criminal Procedure brings in the whole of the manner and machinery Of S. I45 and not merely the second part. An accused is entitled to cross-examine the witness under the first part of s. 145 with respect to the police statement.

Relevant and material omissions amount to vital contradictions which can be established by cross examination and confronting the witness with his previous statement to the police. In the circumstances of the present case even if the defence had been allowed to put questions concerning the omissions, it would not have affected the credibility of the witnesses and no prejudice was caused to appellants by the disallowance of the questions.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 67 of 1958.

Appeal by special leave from the judgment and order dated September 11, 1957, of the Allahabad High Court in Criminal Appeal No. 1388 of 1956 and Referred Trial No. 133 of 1956, arising out of the judgment and order dated September 8, 1956, of the Court of the Additional Sessions Judge at Etawah in Sessions Trial Nos. 83 and 109 of 1955.

Jai Gopal Sethi and R. L. Kohli, for the appellants.

S. P. Sinha, G.C. Mathur and G. N. Dikshit, for the respondent.

1959. May 5. The judgment of B. P. Sinha, J. L. Kapur, A. K. Sarkar and K. Subba Rao, JJ. was delivered by K. Subba Rao, J. and the judgment of Jafer Imam and M. Hidayatullah, JJ., was delivered by M. Hidayatullah, J.

SUBBA RAO, J.-This appeal by special leave raises the question of construction of s. 162, Code of Criminal Procedure . On June 16,1954, one Ram Sanehi Mallah of Nayapura gave a dinner at his home and a large number of his friends attended it. After the dinner, at about 9 p. m., a music performance was given in front of the house of Ram Sanehi's neighbour, Ram Sarup. About 35 or 40 guests assembled in front of Ram Sarup's platform to hear the music. The prosecution case is that a large number of persons armed with fire-arms suddenly appeared near a well situated on the southern side of the house of Ram Sarup and 878 opened fire which resulted in the death of Natthi, Bharat Singh and Saktu, and injuries to six persons, namely, Hazari, Bankey, Khem Singh, Bal Kishan, Mizaji Lal and Nathu.

The topography of the locality where the incident took place is given in the two site-plans, Ex. P-57 and Ex. P-128. It appears from the plans that the house of Ram Sarup faces west, and directly in front of the main door of his house is a, platform; to the southwest of the platform, about 25 paces away, is a well with a platform of 3 feet in height and about 13 feet in width around it; and to the west of the platform in front of Ram Sarup's house the audience were seated.

The prosecution version of the sequence of events that took place on that fatal night is as follows: After the dinner, there was a music performance in front of the platform of Ram Sarup's house and a number of persons assembled there to hear the music. Saktu played on the Majeera while Nathu was singing. it was a full-moon night and there were also a gas lamp and several lanterns. Bankey and Asa Ram placed their guns on a cot close to the platform and Bharat Singh was sitting on that cot. While Bankey was among the audience, Asa Ram was still taking his dinner inside the house. At about 9 p. m., the accused along with 15 or 20 persons arrived from an eastern lane, stood behind the well, shouted that no one should run away and advanced northward from the well firing shots. Natthi and Saktu were hit and both of them died on the spot. Bharat Singh, who was also hit, ran northward and was pursued by some of the culprits and was shot dead in front of Bankey's house shown in the plan.

Bankey, who was also shot at and injured, took up Asa Ram's gun and went up to the roof of Ram Sarup's house wherefrom he fired shots at the dacoits, who were retreating. Asa Ram, who was luckily inside the house taking his dinner, ran up to the roof of Ram Sarup's house and saw the occurrence from over the parapet. The culprits turned over the deadbodies of Saktu, Natthi and Bharat Singh and, on seeing Bharat Singh's face, they exclaimed that Asa Ram was killed.

Thereafter, they 879 proceeded northward, passed through the corner of Ram Sarup's house and disappeared in the direction of the Chambal. They also carried away Bankey's gun which was on the cot.

The motive for the offence is stated thus : The culprits were members of a notorious gang called the Man Singh's gang, who, it is alleged, were responsible for many murders and dacoities in and about the aforesaid locality. That gang was in league with another gang known as Charna's gang operating in the same region. Asa Ram and Bankey had acted as informers against Charna's gang, and this information led to the killing of Charna. Man Singh's gang wanted to take vengeance on the said two persons; and, having got the information that the said two persons would be at the music party on that fateful night, they organized the raid with a view to do away with Asa Ram and Bankey.

Out of the nine accused committed to the Sessions, the learned Sessions Judge acquitted seven, convicted Tahsildar Singh and Shyama Mallah under 14 charges and awarded them various sentences, including the sentence of death. Before the learned Sessions Judge, Tahsildar Singh took a palpably false plea that be was not Tahsildar Singh but was Bhanwar Singh, and much of the time of the learned Sessions Judge was taken to examine the case of the prosecution that the accused was really Tahsildar Singh, son of Man Singh. The other accused, Shyama Mallah, though made a statement before the Sub-Divisional Magistrate admitting some facts, which were only exculpatory in nature, denied the commission of the offence before the committing Magistrate and before the learned Sessions Judge. As many as eight eyewitnesses described the events in detail and clearly stated that both the accused took part in the incident. When one of the witnesses, Bankey (P. W., 30), was in the witness-box, the learned Counsel for the accused put to him the following two questions in cross-examination:

1. " Did you state to the investigating officer that the gang rolled the dead bodies of Natthi, Saktu and 880 Bharat Singh, and scrutinized them and did you tell him that the face of Asa Ram resembled that of the deceased Bharat Singh ?"

2. " Did you state to the investigating officer about the presence of the gas lantern ?" In regard to the first question, the learned Sessions Judge made the following note:

" The cross-examining Counsel was asked to show the law which entitles him to put this question. He is unable to show any law. 1, therefore, do not permit the question to be put unless I am satisfied." In respect of the second question, the following note is made:

" He is also unable to show any law entitling him to put this question. I will permit him to put it if he satisfies me about it." It appears from the deposition that no other question on the basis of the statement made before the police was put to this witness. After his evidence was closed, the learned Judge delivered a considered order giving his reasons for disallowing the said two questions. The relevant part of the order reads:

"Therefore if there is no contradiction between his evidence in Court and his recorded statement in the diary, the latter cannot be used at all. If a witness deposes in Court that a certain fact existed but had stated under section 161 Cr. P. C. either that that fact had not existed or that the reverse and irreconcilable fact had existed, it is a case of conflict between the deposition in the Court and the statement under section 161 Cr. P. C. and the latter can be used to contradict the former. But if he had not stated under section 161 anything about the fact, there is no conflict and the statement cannot be used to contradict him.

In some cases an omission in the statement under section 161 may amount to contradiction of the deposition in Court; they are the cases where what is actually stated is irreconcilable with what is omitted and impliedly negatives its existence." It is enough to notice at this stage that the learned Sessions Judge did not by the said order rule that no.

881 omission in the statement made under s. 161 of the Code of Criminal Procedure can be put to a witness, but stated that only an omission which is irreconcilable with what is stated in evidence can be put to a witness. The said two omissions were not put to any of the other witnesses except to one to whom only one of the said omissions was put. No other omissions were put in the cross-examination either to P. W. 30 or to any other witness. The learned Sessions Judge on a consideration of the voluminous evidence in the case held that the guilt was brought home to the said two accused and convicted them as aforesaid. Tahsildar Singh and Shyama Mallah preferred two separate appeals to the High Court against their convictions and sentences. The two appeals were heard along with the reference made by the learned Sessions Judge under s. 374 of the Code of Criminal Procedure for the confirmation of the sentence of death awarded to the appellants. The learned Judges of the High Court, after reviewing the entire evidence over again, accepted the findings of the learned Sessions Judge and confirmed the convictions and sentences passed on the appellants. Before the High Court a petition was filed by the appellants alleging that the learned Sessions Judge did not allow the Counsel for defence to put omissions amounting to material contradictions to the eye-witnesses and therefore the said eye-witnesses should be summoned so that the said questions might be put to them. That petition was filed on May 1, 1957, and on July 30, 1957, after the argument in the appeals was closed, the petition was dismissed. Presumably, no attempt was made to press this application either before the appeals were taken up for argument or during the course of the argument; but the question raised in the petition was considered by the earned Judges of the High Court in their judgment. The judgment discloses that the learned Counsel appearing for the appellants argued before the High Court that the learned Sessions Judge wrongly disallowed the aforesaid two questions, and the learned Judges, conceding that those two questions should have been allowed, held that the accused 882 were not prejudiced by the said fact. They justified their conclusion by the following reasons:

"We did so because among other reasons we decided to ignore these two circumstances and to base our findings on matters of greater certainty, namely, the fact of the miscreants firing while advancing, passing in front of Ram Swarup's platform and taking away Bankey's gun from the cot, movements which brought them close to the eye-witnesses and thereby gave the witnesses an unmistakable opportunity of seeing their faces in the light of the lanterns and the full moon. These factors made recognition by witnesses independent of any gas lantern or any scrutiny of the dead bodies, so that these matters ceased to be of any real consequence and therefore made the summoning of the eyewitnesses before us quite unnecessary ". In the result, they dismissed the appeals. The present appeal is by special leave filed against the judgment of the High Court.

Learned Counsel for the appellants raised before us the following points : (1) (a). Section 162 of the Code of Criminal Procedure by its own operation attracts the provisions of s. 145 of the Evidence Act and under the latter section the whole vista of cross-examination on the basis of the previous statement in writing made by the witnesses before the police is open to the accused ; to illustrate the contention: a witness can be asked whether he made a particular statement before the police officers; if he says " yes ", the said assertion can be contradicted by putting to him an earlier statement which does not contain such a statement. (1) (b). The word ',contradiction " is of such wide connotation that it takes in all material omissions and a Court can decide whether there is one such omission as to amount to contradiction only after the question ,is put, answered and the relevant statement or part of it is marked, and, therefore, no attempt should be made to evolve a workable principle, but the question must be left at large to be decided by the Judge concerned on the facts of each case. (2) The High Court erred in holding that only two questions were intended to be put in cross examination to the prosecution 883 witnesses whereas the Advocate for the accused in. tended to put to the witnesses many other omissions to establish that there was development in the prosecution case from time to time but refrained from doing so in obedience to the considered order made by the learned Sessions Judge. (3) Even if only two questions were illegally disallowed, as it was not possible to predicate the possible effect of the cross-examination of the witnesses on the basis of their answers to the said questions on their reliability, it should be held that the accused had no opportunity to have an effective cross-examination of the witnesses and there.

fore they had no fair trial. (4) The learned Judges committed an illegality in testing the credibility of the witnesses other than the witness who gave the first information report by the contents of the said report.

The arguments of the learned Counsel for the respondent in respect of each of the said contentions will be considered in their appropriate places.

We shall proceed to consider the contentions of the learned Counsel for the appellants in the order in which they were addressed:

Re. (1) (a): Diverse and conflicting views were expressed by Courts on the interpretation of s. 162 of the Code of Criminal Procedure . A historic retrospect of the section will be useful to appreciate its content. The earliest Code is that of 1872 and the latest amendment is that of 1955.

Formerly Criminal Procedure Code for Courts in the Presidency, towns and those in the mofussil were not the same. Criminal Procedure Code, 1882 (10 of 1882), consolidated the earlier Acts and prescribed a uniform law to all Courts in India. It was superseded by Act 5 of 1898 and substantial changes were made by Act 18 of 1923. Since then the Code stands amended from time to time by many other Acts. The latest amendments were made by Act 26 of 1955 which received the assent of the President on August 10, 1955, and by notification issued by the Central Government its provisions came into force on and from January 1, 1956.

We are not concerned in this case with the Amending Act of 1955, but only with the Act as it stood before the amendment of 1955.

884 In Act 10 of 1872 the section corresponding to the present s. 162 was s. 119, which read:

" An officer in charge of a Police-station, or other Police officer making an investigation, may examine orally any person supposed to be acquainted with the facts and circumstances of the case, and may reduce into writing any statement made by the person so examined.

Such person shall be bound to answer all questions relating to such case, put him by such officer, other than questions criminating himself.

No statement so reduced into writing shall be signed by the person making it, nor shall it be. treated as part of the record or used as evidence." This section enables a police officer to elicit information from persons supposed to be acquainted with facts, and permits him to reduce into writing the answers given by such persons, but excludes the said statement from being treated as part of the record or used as evidence. Act 10 of 1882 divided the aforesaid s. 119 into two sections and numbered them as ss. 161 and 162, which read:

S. 161: " Any Police-officer making an investigation under this chapter may examine orally any person supposed to be acquainted with the facts and circumstances of the case, and may reduce into writing any statement made by the person so examined.

Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture." S. 162: " No statement, other than a dying declaration, made by any person to a Police-officer in the course of an investigation under this chapter shall, if reduced to writing, be signed by the person making it, or be used as evidence against the accused.

Nothing in this section shall be deemed to affect the provisions of section 27 of the Indian Evidence Act, 1872." The first two paragraphs of s. 119 of Act 10 of 1872 with slight modifications not relevant for the present 885 purpose constituted the corresponding paragraphs of s. 161 of Act 10 of 1882; and the third paragraph of s. 119 of the -former Act, with some changes, was made s. 162 of the latter Act. There was not much difference between the third paragraph of s. 119 of the Act of 1872 and s. 162 of the Act of 1882, except that in the latter Act, it was made clear that the prohibition did not apply to a dying declaration or affect the provisions of s. 27 of the Indian Evidence Act, 1872 The Code of 1898 did not make any change in s. 161, nor did it introduce any substantial change in the body of s. 162 except taking away the exception in regard to the dying declaration from it and putting it in the second clause of that section. But s. 162 was amended by Act 5 of 1898 and the amended section read :

" (1) No statement made by any person to a police-officer in the course of an investigation under this Chapter shall, if taken down in writing, be signed by the person making it, nor shall such writing be used as evidence:

Provided that, when any witness is called for the prosecution whose statement has been taken down in writing as aforesaid, the Court shall, on the request of the accused, refer to such writing, and may then, if the Court thinks it expedient in the interests of justice, direct that the accused be furnished with a copy thereof ; and such statement may be used to impeach the credit of such witness in manner provided by the Indian Evidence Act, 1872.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of section 32, clause (1), of the Indian Evidence Act, 1872." For the first time the proviso to s. 162 introduced new elements, namely: (i) The right of the accused to request the Court to refer to the statement of a witness reduced to writing; (ii) a duty cast on the Court to refer to such writing; (iii) discretion conferred on the Court in the interests of justice to direct that the accused be furnished with a copy of the statement; and (iv) demarcating the field within which such 886 statements can be used, namely, to impeach the credit of the witness in the manner provided by the Indian Evidence Act, 1872. From the standpoint of the accused, this was an improvement on the corresponding sections of the earlier Codes, for whereas the earlier Codes enacted a complete bar against the use of such statements in evidence, this Code enabled the accused, subject to the limitations mentioned therein, to make use of then to impeach the credit of a witness in the manner provided by the Indian Evidence Act.

On the basis of the terms of s. 162 of Act 5 of 1896, two rival contentions were raised before the Courts. It was argued for the prosecution that on the strength of s. 157 of the Evidence Act, the right of the prosecution to prove any oral statement to contradict the testimony of any witness under that section was not taken away by s. 162 of the Code of Criminal Procedure which only provided that the writing shall not be used as evidence. On the other hand, it was contended on behalf of the accused that when the statement of a witness was admittedly reduced into writing, it would be unreasonable to allow any oral evidence of the statement to be given when the writing containing the statement could not be proved. The judgment of Hosain, J., in the case of Rustam v. King-Emperor (1) and the decisions in Fanindra Nath Banerjee v. Emperor (2), King-Emperor v. Nilakanta (3) and Muthukumaraswami Pillai v. King-Emperor ( (4) represent one side of the question, and the judgment of Knox, J., in Rustam v. King-Emperor (1) and the observations of Beaman, J., in Emperor v. Narayan (5) represent the other side. A division Bench of the Bombay High Court in Emperor v. Hanmaraddi Bin Ramaraddi (6), after noticing the aforesaid decisions on the question, ruled that the police officer could be allowed to depose to what the witness had stated to him in the investigation for the purpose of corroborating what the witness had said at the trial. In that context, Shah, J., observed at p. 66:

(1) (1970) 7 A L.J. 468.

(3) (1912) 35 Mad. 247.

(5) (1907) 32 Bo-. 111 (2) (1908) 36 Cal. 281 (4) (1912) 35 Mad. 397.

(6) (1915) 39 Bo-~58.

8S7 The point is not free from difficulty which is sufficiently reflected in the diversity of judicial opinions, bearing on the question." Presumably, in view of the aforesaid conflict, to make the legislative intention clear the section was amended by Act 18 of 1923. Section 162 as amended by the aforesaid Act reads:

" (1) No statement made by any person to a police-officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police-diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:

Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, the Court shall, on the request of the accused, refer to such writing and direct that the accused be furnished with a copy thereof, in order that any part of such statement if duly proved, may be used to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872. When any part of such statement is so used, any part thereof may also be used in the reexamination of such witness, but for the purpose only of explaining any matter referred to in his cross examination:

Provided, further that, if the Court is of --opinion that any part of any such statement is not relevant to the subject-matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interests, it shall record such opinion (but not the reasons therefore) and shall exclude such part from the copy of the statement furnished to the accused." Sub-section (1) of the substituted section attempted to steer clear of the aforesaid conflicts and avoid other difficulties by the following ways: (a) Prohibited the use of the statement, both oral and that reduced into 888 writing, from being used for any purpose at any inquiry or trial in respect of any offence under investigation; (b) while the earlier section enabled the accused to make use of it to impeach the credit of a witness in the manner provided by the Indian Evidence Act, 1872, the new section enabled him only to use it to contradict the witness in the manner provided by s. 145 of the said Act; (c) the said statement could also be used for the purpose of only explaining any matter referred to in his cross-examination; and (d) while under the old section a discretion was vested in the Court in the matter of furnishing the accused with a copy of an earlier statement of a prosecution witness, under the amended section, subject to the second proviso, a duty was cast upon the Court, if a request was made to it by the accused, to direct that the accused be furnished with a copy thereof. The effect of the amendment was that the loopholes which enabled the use of the statement made before the police in a trial were plugged and the only exception made was to enable the accused to use the statement of a witness reduced into writing for a limited purpose, namely, in the manner provided by s. 145 of the Indian Evidence Act, 1872, and the prosecution only for explaining the matter referred to in his cross examination. The scope of the limited use also was clarified. Under the old section the statement was permitted to be used to impeach the credit of a witness in the manner provided by the Indian Evidence Act; under the said Act, the credit of a witness could be impeached either under s. 145 or under s. 155(3). While the former section enables a witness to be cross-examined as to a previous statement made by him in writing without such writing being shown to him, the latter section permits the discrediting of the witness by proof of his previous statement by independent evidence. If a statement in writing could be used to discredit a witness in the manner provided by those two sections, the purpose of the Legislature would be defeated. Presumably in realisation of this unexpected consequence, the Legislature in the amendment made it clear that the said statement can only be used to contradict a 889 witness in the manner provided by s. 145 of the Evidence Act. By Act 2 of 1945, the following sub-section (3) was added to s. 161:

" The police-officer may reduce into writing any statement made to him in the course of an examination under this section, and if he does so, he shall make a separate record of the statement of each such person whose statement he records." This subsection restored the practice obtaining before the year 1923 with a view to discourage the practice adopted by some of the police officers of taking a condensed version of the statements of all the witnesses or a precise of what each witness said. It is not necessary to notice in detail the changes made in s. 162 by Act 26 of 1955, except to point out that under the amendment the prosecution is also allowed to use the statement to contradict a witness with the permission of the Court and that in view of the shortened committal procedure prescribed, copies of the statements of the prosecution witnesses made before the police during investigation are made available by the police to the accused before the commencement of the inquiry or trial. The consideration of the provisions of the latest amending Act need not detain us, for the present case falls to be decided tinder the Act as it stood before that amendment.

It is, therefore, seen that the object of the legislature throughout has been to exclude the statement of a witness made before the police during the investigation from being made use of at the trial for any purpose, and the amendments made from time to time were only intended to make clear the said object and to dispel the cloud cast on such intention.

The Act of 1898 for the first time introduced an exception enabling the said statement reduced to writing to be used for impeaching the credit of the witness in the manner provided by the Evidence Act. As the phraseology of the exception lent scope to defeat the purpose of the legislature, by the Amendment Act of 1923, the section was redrafted defining the limits of the exception with precision so as to confine it only 112 890 to contradict the witness in the manner provided under s.

145 of the Evidence Act. If one could guess the intention of the legislature in framing the section in the manner it did in 1923, it would be apparent that it was to protect the accused against the user of the statements of witnesses made before the police during investigation at the trial presumably on the assumption that the said statements were not made under circumstances inspiring confidence. Both the section and the proviso intended to serve primarily the same purpose, i.e., the interest of the accused.

Braund, J., in Emperor v. Aftab Mohd. Khan (1) gave the purpose of s. 162 thus at p. 299:

" As it seems to us it is to protect accused persons from being prejudiced by statements made to police officers who by reason of the fact that an investigation is known to be on foot at the time the statement is made, may be in a position to influence the maker of it and, on the other hand, to protect accused persons from the prejudice at the hands of persons who in the knowledge that an investigation has already started, are prepared to tell untruths. " A division Bench of the Nagpur High Court in Baliram Tikaram Marathe v. Emperor (2) expressed a similar idea in regard to the object underlying the section,at p. 5, thus:

" The object of the section is to protect the accused both against over-zealous police officers and untruthful witnesses. " The Judicial Committee in Pakala Narayana Swami v. The KingEmperor (3) found another object underlying -the section when they said at p. 78:

"If one had to guess at the intention of the Legislature in framing a section in the words used, one would suppose that they had in mind to encourage the free disclosure of information or to protect the person making the statement from a supposed unreliability of police testimony as to alleged statements or both.

Section 162 with its proviso, if construed in the (1) A.I R. 1940 All. 291. (2) A.I.R. 1945 Nag. 1.

(3) (1939) L.R. 66 I. A. 66.

891 manner which we will indicate at the later stage of the judgment, clearly achieves the said objects.

The learned Counsel's first argument is based upon the words " in the manner provided by s. 145 of the Indian Evidence Act, 1872 " found in s. 162 of the Code of Criminal Procedure . Section 145 of the Evidence Act, it is said, empowers the accused to put all relevant questions to a witness before his attention is called to those parts of the writing with a view to contradict him. In support of this contention reliance is placed upon the judgment of this Court in Bhagwan Singh v. The State of Punjab (1). Bose, J., describes the procedure to be followed to contradict a witness under s. 145 of the Evidence Act thus at p. 819:

" Resort to section 145 would only be necessary if the witness denies that he made the former statement. In that event, it would be necessary to prove that he did, and if the former statement was reduced to writing, then section 145 requires that his attention must be drawn to those parts which are to be used for contradiction. But that position does not arise when the witness admits the former statement.

In such a case all that is necessary is to look to the former statement of which no further proof is necessary because of the admission that it was made. " It is unnecessary to refer to other cases wherein a similar procedure is suggested for putting questions under s. 145 of the Indian Evidence Act, for the said decision of this Court and similar decisions were not considering the procedure in a case where the statement in writing was intended to be used for contradiction under s. 162 of the Code of Criminal Procedure . Section 145 of the Evidence Act is in two parts:

the first part enables the accused to cross-examine a witness as to previous statement made by him in writing or reduced to writing to without such writing being shown to him; the second part deals with a situation where the cross examination assumes the shape of contradiction : in other words, both parts deal with cross-examination; the first part with cross-examination other than by way of contradiction, and the (1) [1952] S.C.R. 812.

892 second with cross-examination by way of contradiction only.

The procedure prescribed is that, if it is intended to contradict a witness by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to s. 162 of the Code of Criminal Procedure only enables the accused to make use of such statement to contradict a witness in the manner provided by s. 145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of s. 145 of the Evidence Act. Nor are we impressed by the argument that it would not be possible to invoke the second part of s. 145 of the Evidence Act without putting relevant questions under the first part thereof. The difficulty is more imaginary than real. The second part of s. 145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate: A says in the witness-box that B stabbed C ;

before the police he bad stated that D stabbed C. His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness-box. If he admits his previous statement, no further proof is necessary; if he does not admit, the practice generally followed is to admit it subject to proof by the police officer. On the other hand, the procedure suggested by the learned Counsel may be illustrated thus: If the witness is asked " did you say before the police-officer that you saw a gas light ? " and he answers " yes ", then the statement which does not contain such recital is put to him as contradiction. This procedure involves two fallacies: one is it enables the accused to elicit by a process of cross-examination what the witness stated before the police-officer. If a police-officer did not make a record of a witness's statement, his entire statement could not be used for any purpose, whereas if a police-officer recorded a few sentences, by this process of cross examination, the witness's oral statement could be brought on record. This procedure, 893 therefore, contravenes the express provision of s. 162 of the Code. The second fallacy is that by the illustration given by the learned Counsel for the appellants there is no self-contradiction of the primary statement made in the witness-box, for the witness has yet not made on the stand any assertion at all which can serve as the basis. The contradiction, under the section, should be between what a witness asserted in the witness-box and what he stated before the police-officer, and not between what he said he had stated before the police-officer and what he actually made before him. In such a case the question could not be put at all: only questions to contradict can be put and the question here posed does not contradict it leads to an answer which is contradicted by the police statement. This argument of the learned Counsel based upon s. 145 of the Evidence Act is, therefore, not of any relevance in considering the express provisions of s. 162 of the Code of Criminal Procedure .

This leads us to the main question in the case, i.e., the interpretation of s. 162 of the Code of Criminal Procedure .

The cardinal rule of construction of the, provisions of a section with a proviso is succinctly stated in Maxwell's Interpretation of Statutes, 10th Edn., at p. 162 thus:

" The proper course is to apply the broad general rule of construction, which is that a section or enactment must be construed as a whole, each portion throwing light if need be on the rest.

The true principle undoubtedly is, that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause, and proviso, taken and construed together is to prevail." Unless the words are clear, the Court should not so construe the proviso as to attribute an intention to the legislature to give with one hand and take away with another. To put it in other words, a sincere attempt should be made to reconcile the enacting clause and the proviso and to avoid repugnancy between the two.

As the words in the section declare the intention of the legislature, we shall now proceed to construe the 894 section giving the words used therein their natural and ordinary sense.

The object of the main section as the history of its legislation shows and the decided cases indicate is to impose a general bar against the use of statement made before the police and the enacting clause in clear terms says that no statement made by any person to a police officer or any record thereof, or any part of such statement or record, be used for any purpose. The words are clear and unambiguous. The proviso engrafts an exception on the general prohibition and that is, the said statement in writing may be used to contradict a witness in the manner provided by s. 145 of the Evidence Act. We have already noticed from the history of the section that the enacting clause was mainly intended to protect the interests of accused. At the stage of investigation, statements of witnesses are taken in a haphazard manner. The police officer in the course of his investigation finds himself more often in the midst of an excited crowd and label of voices raised all round. In such an atmosphere, unlike that in a Court of Law, be is expected to hear the statements of witnesses and record separately the statement of each one of them. Generally he records only a summary of the statements which appear to him to be relevant. These statements are, therefore, only a summary of what a witness says and very often perfunctory. Indeed, in view of the aforesaid facts, there is a statutory prohibition against police officers taking the signature of the person making the statement, indicating thereby that the statement is not intended to be binding on the witness or an assurance by him that it is a correct statement.

At the same time, it being the earliest record of the statement of a witness soon after the incident, any contradiction found therein would be of immense help to an accused to discredit the testimony of a witness making the statement. The section was, therefore, conceived in an attempt to find a happy via media, namely, while it enacts an absolute bar against the statement made before a police officer being used for any purpose whatsoever, it enables the accused to rely 895 upon it for a limited purpose of contradicting a witness in the manner provided by s. 145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction. It cannot be used for corroboration of a prosecution or a defence witness or even a Court witness.

Nor can it be used for contradicting a defence or a Court witness. Shortly stated, there is a general bar against its use subject to a limited exception in the interest of the accused, and the exception cannot obviously be used to cross the bar.

If the provisions of the section are construed in the aforesaid back 'ground, much of the difficulty raised disappears. Looking at the express words used in tile section, two sets of words stand out prominently which afford the key to the intention of the legislature. They are : " statement in writing ", and " to contradict ". " Statement " in its dictionary meaning is the act of stating or reciting. Prima facie a statement cannot take in an omission. A statement cannot include that which is not stated. But very often to make a statement sensible or self-consistent, it becomes necessary to imply words which are not actually in the statement. Though something is not expressly stated, it is necessarily implied from what is directly or expressly stated. To illustrate: ' A' made a statement previously that he saw ' B ' stabbing ' C ' to death; but before the Court he deposed that he saw 'B' and 'D' stabbing ' C' to death: the Court can imply the word "only " after ' B ' in the statement before the police.

Sometimes a positive statement may have a negative aspect and a negative one a positive aspect. Take an extreme example : if a witness states that a man is dark, it also means that he is not fair. Though the statement made describes positively the colour of a skin, it is implicit in that statement itself that it is not of any other colour.

Further, there are occasions when we come across two statements made by the same person at different times and both of them cannot stand or co-exist. There is an inherent repugnancy between the two and, therefore, if one is true, the other must be false. On one occasion a person says 896 that when he entered the room, he saw ' A' shooting 'B' dead with a gun; on another occasion the same person says that when he entered the room he saw 'C' stabbing ' B ' dead ;

both the statements obviously cannot stand together, for, if the first statement is true, the second is false and vice versa. The doctrine of recital by necessary implication, the concept of the negative or the positive aspect of the same recital, and the 'principle of inherent repugnancy, may in one sense rest on omissions, but, by construction, the said omissions must be deemed to be part of the statement in writing. Such omissions are not really omissions strictly so called and the statement must be deemed to contain them by implication. A statement, therefore, in our view, not only includes what is expressly stated therein, but also what is necessarily implied there from.

" Contradict " according to the Oxford Dictionary means to affirm to the contrary. Section 145 of the Evidence Act indicates the manner in which contradiction is brought out.

The cross-examining Counsel shall put the part or parts of the statement which affirms the contrary to what is stated in evidence. This indicates that there is something in writing which can be set against another statement made in evidence. If the statement before the police-officer-in the sense we have indicated-and the statement in the evidence before the Court are so inconsistent or irreconcilable with each other that both of them cannot co-exist, it may be said that one contradicts the other.

It is broadly contended that a statement includes all omissions which are material and are such as a witness is expected to say in the normal course. This contention ignores the intention of the legislature expressed in s. 162 of the Code and the nature of the non-evidentiary value of such a statement, except for the limited purpose of contradiction. Unrecorded statement is completely excluded.

But recorded one is used for a specified purpose. The record of a statement, however perfunctory, is assumed to give a sufficient guarantee to the correctness of the statement made, but if words not recorded are brought in by some fiction, the object of the section would be 897 defeated. By that process, if a part of a statement is recorded, what was not stated could go in on the sly in the name of contradiction, whereas if the entire statement was not recorded, it would be excluded. By doing so, we would be circumventing the section by ignoring the only safeguard imposed by the legislature, viz., that the statement should have been recorded.

We have already pointed out that under the amending Act of 1955, the prosecution is also allowed to use the statement to contradict a witness with the permission of the Court.

If construction of the section as suggested by the learned Counsel for the appellants be accepted, the prosecution would be able to bring out in the cross-examination facts stated by a witness before a police-officer but not recorded and facts omitted to be stated by him before the said officer. This result is not decisive on the question of construction, but indicates the unexpected repercussions of the argument advanced to the prejudice of the accused.

As s. 162 of the Code of Criminal Procedure enables the prosecution in the reexamination to rely upon any part of the statement used by the defence to contradict a witness, it is contended that the construction of the section accepted by us would lead to an anomaly, namely, that the accused cannot ask the witness a Single question, which does not amount to contradiction whereas the prosecution, taking advantage of a single contradiction relied upon by the accused, can reexamine the witness in regard to any matter referred to in his cross-examination, whether it amounts to a contradiction or not. I do not think there is any anomaly in the situation. Section 145 of the Evidence Act deals with cross-examination in respect of a previous statement made by the witness. One of the modes of cross-examination is by contradicting the witness by referring him to those parts of the writing which are inconsistent with his present evidence. Section 162, while confining the right to the accused to cross-examine the witness in the said manner, enables the prosecution to reexamine the witness to explain 113 898 the matters referred to in the cross-examination. This enables the prosecution to explain the alleged contradiction by pointing out that if a part of the statement used to contradict be read in the context of any other part, it would give a different meaning; and if so read, it would explain away the alleged contradiction. We think that the word " cross-examination " in the last line of the first proviso to s. 162 of the Code of Criminal Procedure cannot be understood to mean the entire gamut of cross-examination without reference to the limited scope of the proviso, but should be confined only to the cross-examination by contradiction allowed by the said proviso.

The conflict of judicial opinion on this question is reflected in the decisions of different High Courts in this country. One of the views is tersely put by Burn J. in In re Ponnusami Chetty (1) at p. 476:

"Whether it is considered as a question of logic or language, " omission " and " contradiction " can never be identical. If a proposition is stated, any contradictory proposition must be a statement of some kind, whether positive or negative. To " contradict " means to " speak against " or in one word to " gainsay ". It is absurd to say that you can contradict by keeping silence. Silence may be full of significance, but it is not " diction ", and therefore it cannot be " contradiction "Considering the provisions of s. 145 of the Evidence Act, the learned Judge observed thus at p. 477:

" It would be in my opinion sheer misuse of words to say that you are contradicting a witness by the writing, when what you really want to do is to contradict him by pointing out omissions from the writing. I find myself in complete agreement with the learned Sessions Judge of Ferozepore who observed that " a witness cannot be confronted with the unwritten record of an unmade statement "." The learned Judge gives an illustration of a case of apparent omission which really is, a contradiction, i.e., a case where a witness stated under s. 162 of the Code that he saw three persons beating a man and later (1) (1933) I.L.R. 56 Mad. 475.

899 stated in Court that four persons were beating the same man.

This illustration indicates the trend of the Judge's mind that he was prepared to treat an omission of that kind as part of the statement by necessary implication. A Division Bench of the 'Madras High Court followed this judgment in re Guruva Vannan (1). In that judgment, Mockett, J., made the following observation at p. 901 :

" I respectfully agree with the judgment of Burn, J., in Ponnuswamy Chetty v. Emperor (2) in which the learned Judge held that a statement under section 162 of the Code of Criminal Procedure cannot be filed in order to show that a witness is making statements in the witness box which he did not make to the police and that bare omission cannot be a contradiction. The learned judge points out that, whilst a bare omission can never be a contradiction, a so-called omission in a statement may sometimes amount to a contradiction, for example, when to the police three persons are stated to have been the criminals and later at the trial four are mentioned." The Allahabad High Court in Ram Bali v. State expressed the principle with its underlying reasons thus at p. 294:

" Witness after witness was cross-examined about certain statements made by him in the deposition but not to be found in his statement under s. 162, Criminal P. C. A statement recorded by the police under s. 162 can be used for one purpose and one purpose only and that of contradicting the witness. Therefore if there is no contradiction between his evidence in Court and his recorded statement in the diary, the latter cannot be used at all. If a witness deposes in Court that a certain fact existed but had stated under s. 162 either that fact had not existed or that the reverse and irreconcilable fact had existed it is a case of conflict between the deposition in the Court and the statement under s. 162 and the latter can be used to contradict the former.

But if he had not stated under s. 162 anything about the fact there is no conflict and the (1) I.L.R. (1944) Mad. 897. (2) (1933) I L.R. 56 Mad. 475.

(3) A.I.R. 1952 All. 280.

900 statement cannot be used to contradict him. In some cases an omission in the statement under s. 162 may amount to contradiction of the deposition in Court ;they are the cases where what is actually stated is irreconcilable with what is omitted and impliedly negatives its existence." At a later stage of the judgment, the learned Judges laid down the following two tests to ascertain whether a particular omission amounts to contradiction: (i) an omission is not a contradiction unless what is actually stated contradicts what is omitted to be said; and (ii) the test to find out whether an omission is contradiction or not is to see whether one can point to any sentence or assertion which is irreconcilable with the deposition in the Court.

The said observations are in accord with that of the Madras High Court in In re Guruva Vannan (1). The Patna High Court in Badri Chaudhry v. King-Emperor (2) expressed a similar view. At p. 22, Macpherson, J., analysing s. 162 of the Code of Criminal Procedure , after its amendment in 1923, observed :

" The first proviso to section 162 (1) makes an exception in favour of the accused but it is an exception most jealously circumscribed under the proviso itself. " Any part of such statement " which has been reduced to writing may in certain limited circumstances be used to contradict the witness who made it. The limitations are strict: (1) Only the statement of a prosecution witness can be used; and (2) only if it has been reduced to writing ; (3) only a part of the statement recorded can be used ; (4) such part must be duly proved ;

(5) it must be a contradiction of the evidence of the witness in Court; (6) it must be used as provided in s. 145, Evidence Act, that is, it can only be used after the attention of the witness has been drawn to it or to those parts of it which it is intended to use for the purpose of contradiction, and there are others. Such a statement which does not contradict the testimony of the witness cannot be proved in any circumstances and it is not permissible to use the recorded statement as a whole to show that the witness did not say something to the investigating officer." (1) I.L.R. (1944) Mad. 897.

(2) A.I.R. 1926 Pat. 20.

901 In Sakhawat v. Crown (1) much to the same effect was stated at p. 284:

" The section (s. 162) provides that such statements can be used only for the purpose of contradiction. Contradiction means the setting up of one statement against another and not the setting up of a statement against nothing at all.

An illustration would make the point clear. If a witness in Court says 'I saw A running away' he may be contradicted under section 162 by his statement to the police 'I did not see A running away'. But by proving an omission what the learned Counsel contradicts is not the statement 'I saw A running away' but the statement 'I stated to the police that I saw' A running away'. As section 162 does not allow the witness to depose ' I stated to the police that I saw A running away ' it follows that there can be no basis for eliciting the omission. Our argument is further fortified by the use of the words " any part of such statement ............... may be used to contradict." It is not said that whole statement may be used. But in order to prove an omission the whole statement has to be so used, as has been done in the present case."The contrary view is expressed in the following proposition " An omission may amount to Contradiction if the matter omitted was one which the witness would have been expected to mention and the Sub-Inspector to make note of in the ordinary course. Every detail is expected to be noted." This proposition, if we may say so, couched in wide phraseology enables the trial Judge to put into the mouth of a witness things which he did not state at an earlier stage and did not intend to say, oil purely hypothetical considerations. The same idea in a slightly different language was expressed by Bhargava and Sahai, JJ., in Rudder v. The State (2) at p. 240:

" There are, however, certain omissions which amount to contradictions and have been treated as such by this Court as well as other Courts in this country. Those are omissions relating to facts which (1) I.L.R. (1937) Nag. 277.

(2) A.I.R. 1957 All. 239.

902 are expected to be included in the statement before the police by a person who is giving a narrative of what 'he saw, on the ground that they relate to important features of the incident about which the deposition is made." A similar view was expressed in Mohinder Singh v. Emperor (1), Yusuf Mia v. Emperor (2), and State of M. P. v. Banshilal Behari (3).

Reliance is placed by the learned Counsel for the appellants on a statement of law found in " Wigmore on Evidence ", Vol. III, 3rd Edn., at p. 725. In discussing under the head " what amounts to a Self-contradiction ", the learned author tersely describes a self-contradiction in the following terms:

"............ it is not a mere difference of statement that suffices; nor yet is an absolute oppositeness essential; it is an inconsistency that is required." The learned author further states, at p. 733 :

" A failure to assert a fact, when it would have been natural to assert it, amounts in effect to an assertion of the non-existence of the fact." The said statement is no doubt instructive, but it cannot be pressed into service to interpret the provisions of s. 162 of the Code of Criminal Procedure . In America, there is no provision similar to s. 162 of the Code. It is not, therefore, permissible, or even possible, to interpret the provisions of a particular Act, having regard to stray observations in a text-book made in a different context.

It is not necessary to multiply cases. The two conflicting views may be briefly stated thus: (i) omissions, unless by necessary implication be deemed to be part of the statement, cannot be used to contradict the statement made in the witness-box; and (ii) they must be in regard to important features of the incident which are expected to be included in the statement made before the police. The first proposition not only carries out the intention of the legislature but is also in accord with the plain meaning of the words used in the section. The second proposition not only stretches (1) A.I.R. 1932 Lah. 103. (2) A.I.R. 1938 Pat. 579.

(3) A.I.R. 1936 M.P. 13.

903 the meaning of the word " statement " to a breaking point, but also introduces an uncertain element, namely, ascertainment of what a particular witness would have stated in the circumstances of a particular case and what the police officer should have recorded. When the section says that the statement is to be used to contradict the subsequent version in the witness-box, the proposition brings in, by construction, what he would have stated to the police within the meaning of the word " statement ". Such a construction is not permissible.

From the foregoing discussion the following propositions emerge: (1) A. statement in writing made by a witness before a police officer in the course of investigation can be used only to contradict his statement in the witness-box and for no other purpose; (2) statements not reduced to writing by the police officer cannot be used for contradiction; (3) though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so-called but because it is deemed to form part of the recorded statement; (4) such a fiction is permissible by construction only in the following three cases: (i) when a recital is necessarily implied from the recital or recitals found in the statement ; illustration:

in the recorded statement before the police th