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PETITIONER: BHOGILAL CHUNILAL PANDYA

       Vs.

RESPONDENT: THE STATE OF BOMBAY

DATE OF JUDGMENT: 04/11/1958

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. BHAGWATI, NATWARLAL H. SUBBARAO, K.

CITATION:  1959 AIR  356            1959 SCR  Supl. (1) 310  CITATOR INFO :  F          1966 SC  40  (5)

ACT:        Evidence-Notes  of attendance    prepared  by     Solicitor-        Admissibility of for corroborating Solicitor --statement  if        communication to another necessary for admissibility  Indian        Evidence Act, 1872 (1 Of 1872) s. 157.

HEADNOTE: The  appellant,  a cashier of a Company,  was  charged  with committing  criminal breach of trust.  When the  defalcation was discovered certain conversations took place between  the Chairman  and Secretary of the Company and the appellant  in the presence of a Solicitor.  Soon afterwards, the Solicitor prepared notes of attendance of these conversations.  At the trial these notes were produced to corroborate the testimony of  the Solicitor.  The appellant objected that these  notes were  not admissible under s. 157 of the Evidence  Act.   He contended that the word " statement " in s. 157 required the communication  of  the  statement by the  maker  to  another person and that it did not include any writing or memorandum made  by  a  person  for  his  own  use  when  it  was   not communicated to another person. 311 Held, that the notes of attendance were admissible under  s. 157.  The word "statement" in s. 157 means only "  something that  is  stated " and the element of communication  is  not necessary  before  " something that is stated  "  becomes  a statement under that section. The  King  v.  Nga Myo, A.I.R. (1938)  Rang.  177,  Bhogilal Bhikachand  v. The Royal Insurance Co. Ltd.,  A.I.R.  (1928) P.C. 54, referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION Criminal Appeal No.  31  of 1958. Appeal  by special leave from the judgment and  order  dated August  8,  1957,  of  the Bombay  High  Court  in  Criminal Reference  No.  129  of 1957, arising out of  the  order  of

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Reference  to the High Court dated December 1, 1956, of  the Court of Session for Greater Bombay in Case No. 82 of 1956. Purshottam  Tricumdas, G. R. Ganatra and 1. N.  Shroff,  for the appellant. C.   K.  Daphtary,  Solicitor-General  of India  and  R.  H. Dhebar, for the respondent. 1958.   November 4. The Judgment of the Court was  delivered by WANCHOO,  J.This appeal by special leave is limited  to  the question of admissibility in evidence of a certain  document in a criminal trial.  The brief facts of the case  necessary for elucidation of the question are these: Bhogilal Chunilal Pandya appellant was tried for committing criminal breach of trust in respect of Rs. 4,14,750 and the trial was with  the aid  of  a jury.  He was the cashier in  the  employment  of Messrs.   Morarji  Gokuldas Spinning and Weaving  Co.  Ltd., Bombay.   As  such he was entrusted with the  funds  of  the company.  The charge against him was that between July 1 and December  1, 1954, he embezzled the amount mentioned  above. Among  the  witnesses for the  prosecution  were  Gopikisan, Chairman,  Modi, Secretary, and Santook, a solicitor of  the company.   When  the  defalcation  was  discovered,  certain conversations took place between Gopikisan, Modi and Santook who  was  consulted in this connection, and  the  appellant, between January 21 and 27, 312 1955.  Santook prepared what are called notes of  attendance of these conversations soon afterwards.  In his evidence  in court,  Santook deposed to what has taken place between  him and  these persons on those dates.  The notes of  attendance marked  Ex.   V  were  also  produced  to  corroborate   the testimony  of  Santook.  An objection was taken  before  the trial  judge  to the admissibility of these  notes  oil  two grounds, namely (1)  that they could not be admitted in evidence as  ,copies had  not  been supplied to the accused under s. 173  of  the Code of Criminal Procedure, and (2)  that they could not be given in evidence under s.  157 of the Evidence Act (hereinafter called the Act)  as corroboration of Santook’s evidence. The  trial  judge  negatived  both  these  contentions   and admitted the notes in evidence.  He referred to them in  his charge to the jury.  Eventually, however, the jury  returned a  verdict of not guilty by a majority of 5 : 3.  The  trial judge thereupon made a reference to the High Court under  s. 307 of the Code of Criminal Procedure.  The High Court  went through  the entire evidence, including Ex.  V.,  found  the case proved, and convicted the appellant. Learned counsel for the appellant has given up the attack on the  admissibility of these notes on the basis of s. 173  of the  Code of Criminal Procedure in view of the  decision  of this  Court in Narayan Rao v. The State, of  Andhra  Pradesh (1).  He has, however, strenuously contended that the  notes cannot be admitted in evidence under s. 157 of the Act. Section 157 is in these terms-  In  order to corroborate the testimony of a wit. ness,  any former  statement made by such witness relating to the  same fact,  at  or about the time when the fact  took  place,  or before  any authority legally competent to  investigate  the fact, may be proved." The contention is that the words ’statement made by’ in this section  require that there must be a communication  of  the statement  by the maker of it to another person and  that  a statement within the meaning of s. 157 does not include  any writing or

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(1)  [1958] S.C.R. 283. 313 memorandum  made by a person for his own use when it is  not communicated to, any other; person.  It is said that: such a writing  may  be used to refresh the memory of  a,  witness, under s. 159; but: it does not become admissible in evidence unless  the  other party crossexamines the witness  on  the, document under s.. 161. In this    there, was no question of cross-examination upon   the  document  as  the  prosecution itself produced the  notes, during, the examination-in-chief of  Santook  in  order to corroborate  him,  In  short,  the contention, of the, learned Counsel is that such a  writing, can  only,  be  used under s. 159  And  cannot  be  called.a statement  within  the  meaning  of s.  157,  for  the  word ’statement ’ used in s. 157  implies that it must have  been communicated to ,another person. Now, the word statement is not defined in the Act.  We have, therefore  to go to the dictionary meaning of the  word,  in order  to  discover what it means.  Assistance may  also  be taken  from the use of the ’ word statement’ in other  parts of  the  Act  to discover in what sense  it  has  been  used therein. The primary meaning of the word I statement’ to be found  in Shorter  Oxford Engligh Dictionary and Webster’s  New  World Dictionary  is I something that is stated.  Another  meaning that is given in the Shorter Oxford English Dictionary is  I written  or oral communication’.  There is no doubt  that  a statement may be made to some one in the sense of a communi- cation.   But  that  is not  its  primary  meaning,  Unless, therefore,  there  is something in s. 157 or  in  the  other provisions  of the Act, which.compels us to depart from  the primary meaning of the word ’statement’, there is no  reason to  hold  that communication to another person  is  of  tile essence and there can be no statement within the meaning  of s. 157 without such communication.  The word ’statement’ has been used in a number of sections of the Act in its  primary meaning  of  ’something  that is stated’  and  that  meaning should  be given to it under S. 157 also unless there  i  s, something  that  cuts down that meaning for the  purpose  of that section.. Words are generally used in 40 314 the  same  sense  throughout in a statute  unless  there  is something repugnant in the context. The  first group of sections in the Act in which the word  I statement’  occurs,  are  ss.  17 to  21,  which  deal  with admissions.  Section 17 defines the word I admission ss.  18 to  20  lay down what statements are admissions, and  s.  21 deals  with the proof of admissions against  persons  making them.  The words used in ss. 18 to 21 in this connection are I  statements made by’.  It is not disputed that  statements made by persons may be used as admissions against them  even though  they  may not have been communicated  to  any  other person.   For example, statements in the account books of  a person  showing that he was indebted to another  person  are admissions  which can be used against him even though  these statements  were  never communicated to  any  other  person. Illustration  (b)  of  s.  21  also  shows  that  the   word ’statement’  used  in these sections  does  not  necessarily imply  that  they must have been communicated to  any  other person.  In the Illustration in question entries made in the book  kept  by a ship’s captain in the  ordinary  course  of business are called statements, though these entries are not communicated   to   any  other  person.    An   examination, therefore,  of these sections show that in this part of  the

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Act  the  word  I statement’ has been used  in  its  primary meaning,   namely,   ’something   that   is   stated’    and communication  is  not necessary in order that it may  be  a statement. The next section to which reference may be made is s. 32  of the  Act.  It deals with statements made by persons who  are dead,  or cannot be found or who become incapable of  giving evidence  or whose attendance cannot be procured without  an amount  of  delay  or expense which  appears  to  the  court unreasonable.   Subsection (2) in particular shows that  any entry  or  memorandum  made in books kept  in  the  ordinary course of business or in the discharge of professional  duty is a statement, though there is no question of communicating it to another person.  Similarly, sub-section (6) shows that statements relating to the existence of an relationship made in any will or deed relating to the                             315 affairs  of the family, or in any family pedigree,  or  upon any  tombstone,  or family portrait  are  statements  though there  is  no  question of their  communication  to  another person. Again,  s. 39 shows that a statement may be contained  in  a document  which  forms part of a book.  In  this  case  also there is no question of any communication of that  statement to another person in order to make it a statement. Then, there is s. 145, which lays down that a witness may be cross-examined  as  to previous statements made  by  him  in writing   or  reduced  into  writing  for  the  purpose   of contradicting  him.   Under this section a  witness  may  be contradicted  by statements in a diary kept by  him,  though there   is  no  question  of  any  communication  of   those statements to another person. Then  comes  s. 157, which we have already  set  out  above. Here also the words used are ,statement made by’.  We see no reason why the word ’statement’ should not have been used in its primary meaning in this section also.  There is  nothing in the section which in any way requires that an element  of communication to another person should be imported into  the meaning of the word ’statement’ used therein.  It was  urged that  if we do not imply communication to another person  in the  meaning  of the word ’statement’ in  this  section,  it would result in a witness corroborating himself by producing some writing made by him and kept secret and that this would be very dangerous.  Now, a distinction must be made  between admissibility of such a writing and the value to be attached to  it.  Section 157 makes previous statements even of  this type  admissible  ; but what value should be attached  to  a corroboration  of  this nature is a different matter  to  be decided  by  the court in the circumstances of  each  case,. The witness who is sought to be corroborated is produced  in the  witness-box  and is liable to  cross-examination.   The cross-examiner may show that no reliance should be placed on such an earlier statement.  The danger, therefore, which the learned  counsel for the appellant emphasized is  really  no danger  at  all  for  the  witness  is  subject  to   cross- examination.  The main 316 evidence is the statement of the witness in the witness  box and  a document of this nature is only used  to  corroborate him.  If the main evidence’ is shaken by  cross-examination, corroboration by such a document would be Of no use.   There is, therefore’no reason to give a different meaning ’to the’ word  -’statement’ in this section because of  this  alleged danger, which really does not exist-. Learned  counsel for the appellant particularly referred  to

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s. 159 of the Act to show that notes like Ex.  V can only be used  for  refreshing memory and can be evidence  under  the conditions  prescribed  under s. 161.  He does  not  suggest that  what comes under s. 159 is necessarily  excluded  from the  meaning  of  the word ’statement’ under  s.  157.   For example,  a man may write a letter to another  referring  to certain  facts at or about the him when they took place  and may   use  it  to  refresh  his  memory.   A  letter  is   a communication- to another person ; it would; even  according to  the learned counsel; for the appellant, be  a  statement within  the  meaning  of  s. 157  ’and  be’  admissible  for purposes  of  corroboration.  Therefore, it cannot  be  said that because a document call be used to refresh memory under s.   159 it cannot be a statement within the meaning of s.   157.   Section 159 deals with a particular sot of  cir- cumstances and the word ’statement’ does not appear  therein at  all.   Section 159 is, in our opinion, - of no  help  in deciding  what  the  word  ’statement’  means  in  s.   157. Refreshing memory under s. 159 is confined to statements  in writing made under the conditions mentioned in that section, while  corroboration  under s. 157 may be by  statements  in writing  or even by oral statements.  That is why  there  is difference  in  language  of  ss. 157  and  159.   But  that difference does not, in our opinion, lead to any  conclusion which  would cut down the meaning of the  word  ’statement’, under s. 157 to those statements only which are communicated to an, other person.  On a consideration, therefore, of  the primary  meaning  of the word ‘statement’  and  the  various sections  of  the  Act  we come  to  the  conclusion  that,% ‘statement’  under  s.  157 means only  ’something  that  is stated’ and the element of communication to ’another 317 person  is not necesssary before ‘something that is  stated’ becomes a statement under that sections In this view of  the matter  the notes of attendance Would be  statements  within the ’meaning of. 157 and would be admissible to  corroborate S antook’s evidence under s. 157. Let us now turn to the cases cited at the bar.  In The, King v.  Nga Myo (1), a Full Bench of the Rangoon High Court  was considering   questions   relating   to   the   nature    of corroboration  and the circumstances in which it’ should  be sought when a person is accused of a. crime and the evidence against  him  is partly or wholly that of an  accomplice  or accomplices.   The point, therefore, which is’  specifically raised before us was not before the Rangoon High Court.   In passing,  the learned Judges referred to s. 157 of  the  Act and  stated  that it was settled law that  a  person  cannot corroborate  himself.   In making  these  observations,  the learned  Judges  must  be referring to the  settled  law  in England  before the amendment by the ’English Evidence  Act. 1938.  A change was, however, introduced in the English  law by the Evidence, Act, 1938, (I &,2 Geo. 6, c. 28).  That Act provides  that  in any civil proceeding  where  direct  oral evidence  of a fact would be admissible, any statement  made by a person in a document and tending to establish that fact shall on production of the original document, be  admissible as evidence of that fact, if the maker of, the statement had personal,  knowledge  of  the  matters  dealt  with  by  the statement  and  if  lie.  is called  as  a  witness  in  the proceeding.   Thus  notes  of an  interview  prepared  by  a solicitor similar to Ex., V are now admissible as statements in  a document under certain conditions in England. (See  in Re.   Powe (deceased) Powe v. Barclays Bank Ltd (2)  ).  For this reason and also because the judgment does not  consider the specific question raised before us it is of no help.

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The next case is Bhogilal Bhikachand v. The Royal  lnsurance Co.  Ltd.  (3).  Reliance is placed on the  observations  of their  Lordships  of  the Privy Council it p.  63  in  these words- (1)  A.I.R. 1938 Rang. 177. (2)  [1955] 3 All E.R. 448. (3)  A.I.R. 1928 P. C. 54, 63. 318 ,,The  second  matter  on  which  their  Lordships  feel  it desirable  to  observe  is the tendering  and  reception  in evidence  of  the  letter written by  Bhattacharjee  to  his official chief on 30th June, 1923.  This letter was tendered and  received  under s. 157, Evidence Act,  Their  Lordships desire  emphatically to say that the letter was  not,  under that section, properly receivable for any purpose." These  observations do not in our opinion help  the  learned counsel  for the appellant.  His contention  throughout  has been that a statement within the meaning of s. 157 has to be communicated  to  another person.  These  observations  show that  the  letter which their Lordships were  rejecting  was certainly  a  statement which was  communicated  to  another person.  Therefore, when their Lordships rejected the letter it  could  not be on the ground that the statement  was  not communicated to another person ; it must be due to the value of  the evidence of Bhattacharjee, which was  considered  in the previous paragraph. It is clear, therefore, the word I statement used in s.  157 of the Act means ’,something that is stated’ and the element of  communication to another person is not -included in  it. As  such  the notes of attendance prepared by  Santook  were statements  within the meaning of s. 157 and  admissible  in evidence. The result is that the appeal fails and is hereby dismissed. Appeal dismissed. 319