http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 31  

PETITIONER: TAHSILDAR SINGH AND ANOTHER

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 05/05/1959

BENCH: SINHA, BHUVNESHWAR P. BENCH: SINHA, BHUVNESHWAR P. IMAM, SYED JAFFER KAPUR, J.L. SARKAR, A.K. SUBBARAO, K. HIDAYATULLAH, M.

CITATION:  1959 AIR 1012            1959 SCR  Supl. (2) 875  CITATOR INFO :  R          1960 SC 706  (27,28)  R          1962 SC 605  (26)  R          1964 SC1563  (8)  R          1970 SC1006  (7)  RF         1972 SC1004  (82)  E          1974 SC 308  (1,6,10)  RF         1975 SC 667  (95)  RF         1975 SC1758  (18)  D          1977 SC1579  (28)  RF         1981 SC1068  (3)

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

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 31  

mention  the  facts  regarding the scrtitiny  of  the  (lead bodies and the presence of the gas lantern, and the  defence counsel  put  the following two questions  with  respect  to these omissions to the first eye witness produced :- 1.   "  Did you state to the Investigating Officer that  the gang rolled the dead bodies of Nathi, Saktu and Bharat Singh and  scrutinised them and did you tell him that the face  of Asa Ram resembled with that of the deceased Bharat Singh ?" 2.   " Did you state to the Investigating Officer about  the presence of the gas lantern ?" The  Sessions judge disallowed the questions and on  account of  this order similar questions were not put to  the  other eye witnesses.  The Sessions judge convicted the  appellants under s. 302 Indian Penal Code and sentenced them to  death. The  appellants  appealed  to the High  Court  and  made  an application alleging that the Sessions judge had not allowed the  defence counsel to put omissions amounting to  material contradictions to 876 the  eye  witnesses  and prayed that the  eye  witnesses  be summoned  so  that the questions disallowed may  be  put  to them. Though  the High Court held that the omissions  amounted  to contradictions and that the Sessions judge had wrongly  dis- allowed  cross-examination  with respect thereto,  it  found that even after ignoring these two circumstances there  were other facts which showed that the culprits had come close to the  eye witnesses and that they had unmistaken  opportunity of identifying the appellants in the light of the full  moon and the lanterns.  The High Court accordingly dismissed  the application for summoning the eye witnesses holding that  no prejudice   had  been  caused  to  the  appellants  by   the disallowance   of  the  cross-examination  in   respect   of omissions  and also dismissed the appeals and confirmed  the convictions and sentences of the appellants. Held, (Per SINHA, KAPUR, SARKAR and SUBBA RAO, JJ.) that the omissions  did  not amount to contradictions -and  that  the Sessions judge was right in disallowing cross-examination in respect  thereof.  A statement to the police could  be  used under   s.  162  of  the  Code  only  for  the  purpose   of contradicting  a  statement  in the witness  box  under  the second part of s. 1, Evidence Act, but it could not be  used for  the  purpose of cross-examining the witness  under  the first  part of s. 145.  A statement made to the  police  but not  reduced to writing, could not be used for any  purpose, not  even for contradiction.  It was incorrect to  say  that all  omissions  in  regard  to  important  features  of  the incident which were expected to be included in the statement made before the police, should be treated as contradictions. An  omission  in  the police statement  could  amount  to  a statement  and be used as a contradiction only when  (i)  it was  necessarily implied from the recital or recitals  found in the statement, (ii) it was negative aspect of a  positive recited in the statement or (iii) when the statement  before the  police  and  that  before the  Court  could  not  stand together.  It was for the the trial judge to decide in  each case,  after  comparing the part or parts of  the  statement recorded  by the police with that made in  the  witness-box, whether  the recital intended to be used  for  contradiction was one of the nature indicated above. In  Ye Ponnusami Chetty, (1933) I.L.R. 56 Mad. 475 ; In  ’Ye Guruva  Vannan, I.L.R. (1944) Mad. 897; Ram Bali  v.  State, A.I.R.  1952 All 289; Badri Chaudhry v. State,  A.I.R.  1926 Pat. 20, Sakhawat v. Crown, I.L.R. (1937) Nag. 277, referred to.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 31  

Rudder v. The State, A.I.R. 1957 All. 239; Mohinder Singh v. Emperor, A.I.R. 1932 Lah. 103; Yusuf Mia v. Emperor,  A.I.R. 1938  Pat. 579; State of M. P. v. Banshilal  Behari,  A.I.R. 1958 M.P. 13, disapproved. Held,  (Per IMAM and HIDAYATULLAH, JJ.) that  the  questions that were put by the defence counsel were properly ruled out by the Sessions judge as they did not set up contradictions, but attempted to obtain from the witnesses versions of  what they 877 had stated to the police which were then to be contradicted. The  reference to s. I45 Evidence Act in s. 162 of the  Code of Criminal Procedure brings in the whole of the manner  and machinery  Of  S. I45 and not merely the  second  part.   An accused  is entitled to cross-examine the witness under  the first  part of s. 145 with respect to the police  statement. Relevant   and   material   omissions   amount   to    vital contradictions which can be established by  crossexamination and  confronting the witness with his previous statement  to the  police.  In the circumstances of the present case  even if the defence had been allowed to put questions  concerning the omissions, it would not have affected the credibility of the  witnesses and no prejudice was caused to appellants  by the disallowance of the questions.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 67  of 1958. Appeal  by special leave from the judgment and  order  dated September 11, 1957, of the Allahabad High Court in  Criminal Appeal No. 1388 of 1956 and Referred Trial No. 133 of  1956, arising  out  of the judgment and order dated  September  8, 1956,  of  the  Court of the Additional  Sessions  Judge  at Etawah in Sessions Trial Nos. 83 and 109 of 1955. Jai Gopal Sethi and R. L. Kohli, for the appellants. S.   P.  Sinha,  G.C.  Mathur and G.  N.  Dikshit,  for  the respondent. 1959.   May 5. The judgment of B. P. Sinha, J. L. Kapur,  A. K.  Sarkar and K. Subba Rao, JJ. was delivered by  K.  Subba Rao, J. and the judgment of Jafer Imam and M.  Hidayatullah, JJ., was delivered by M. Hidayatullah, J. SUBBA  RAO,  J.-This  appeal by  special  leave  raises  the question  of  construction  of  s.  162,  Code  of  Criminal Procedure.   On  June  16,1954, one  Ram  Sanehi  Mallah  of Nayapura gave a dinner at his home and a large number of his friends attended it.  After the dinner, at about 9 p. m.,  a music  performance  was given in front of the house  of  Ram Sanehi’s  neighbour,  Ram  Sarup.  About  35  or  40  guests assembled  in  front  of Ram Sarup’s platform  to  hear  the music.   The  prosecution  case is that a  large  number  of persons  armed with fire-arms suddenly appeared near a  well situated on the southern side of the house of Ram Sarup and 878 opened  fire which resulted in the death of  Natthi,  Bharat Singh  and  Saktu,  and injuries  to  six  persons,  namely, Hazari,  Bankey,  Khem  Singh, Bal Kishan,  Mizaji  Lal  and Nathu. The topography of the locality where the incident took place is given in the two site-plans, Ex.  P-57 and Ex. P-128.  It appears  from  the plans that the house of Ram  Sarup  faces west, and directly in front of the main door of his house is a,  platform;  to the southwest of the  platform,  about  25 paces  away, is a well with a platform of 3 feet  in  height

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 31  

and about 13 feet in width around it; and to the west of the platform  in  front of Ram Sarup’s house the  audience  were seated. The prosecution version of the sequence of events that  took place  on that fatal night is as follows: After the  dinner, there  was a music performance in front of the  platform  of Ram Sarup’s house and a number of persons assembled there to hear the music.  Saktu played on the Majeera while Nathu was singing. it was a full-moon night and there were also a  gas lamp and several lanterns.  Bankey and Asa Ram placed  their guns  on  a cot close to the platform and Bharat  Singh  was sitting  on that cot.  While Bankey was among the  audience, Asa  Ram was still taking his dinner inside the  house.   At about  9  p.  m., the accused along with 15  or  20  persons arrived from an eastern lane, stood behind the well, shouted that no one should run away and advanced northward from  the well  firing shots.  Natthi and Saktu were hit and  both  of them died on the spot.  Bharat Singh, who was also hit,  ran northward  and was pursued by some of the culprits  and  was shot  dead  in front of Bankey’s house shown  in  the  plan. Bankey, who was also shot at and injured, took up Asa  Ram’s gun  and went up to the roof of Ram Sarup’s house  wherefrom he  fired  shots at the dacoits, who were  retreating.   Asa Ram, who was luckily inside the house taking his dinner, ran up  to the roof of Ram Sarup’s house and saw the  occurrence from  over the parapet.  The culprits turned over the  dead- bodies  of  Saktu, Natthi and Bharat Singh  and,  on  seeing Bharat Singh’s face, they exclaimed that Asa Ram was killed. Thereafter, they 879 proceeded  northward,  passed  through  the  corner  of  Ram Sarup’s  house  and  disappeared in  the  direction  of  the Chambal.   They also carried away Bankey’s gun which was  on the cot. The  motive  for the offence is stated thus :  The  culprits were  members  of a notorious gang called  the  Man  Singh’s gang, who, it is alleged, were responsible for many  murders and  dacoities  in and about the aforesaid  locality.   That gang was in league with another gang known as Charna’s  gang operating in the same region.  Asa Ram and Bankey had  acted as informers against Charna’s gang, and this information led to  the killing of Charna.  Man Singh’s gang wanted to  take vengeance  on  the  said two persons; and,  having  got  the information that the said two persons would be at the  music party on that fateful night, they organized the raid with  a view to do away with Asa Ram and Bankey. Out  of  the  nine accused committed to  the  Sessions,  the learned Sessions Judge acquitted seven, convicted  Tahsildar Singh  and Shyama Mallah under 14 charges and  awarded  them various sentences, including the sentence of death.   Before the learned Sessions Judge, Tahsildar Singh took a  palpably false  plea that be was not Tahsildar Singh but was  Bhanwar Singh,  and much of the time of the learned  Sessions  Judge was  taken to examine the case of the prosecution  that  the accused  was really Tahsildar Singh, son of Man Singh.   The other accused, Shyama Mallah, though made a statement before the  Sub-Divisional Magistrate admitting some  facts,  which were  only exculpatory in nature, denied the  commission  of the offence before the committing Magistrate and before  the learned  Sessions  Judge.   As many  as  eight  eyewitnesses described the events in detail and clearly stated that  both the  accused  took part in the incident.  When  one  of  the witnesses, Bankey (P.  W., 30), was in the witness-box,  the learned Counsel for the accused put to him the following two questions in cross-examination:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 31  

1.   "  Did you state to the investigating officer that  the gang rolled the dead bodies of Natthi, Saktu and 880 Bharat Singh, and scrutinized them and did you tell him that the  face of Asa Ram resembled that of the  deceased  Bharat Singh ?" 2.   " Did you state to the investigating officer about  the presence of the gas lantern ?" In regard to the first question, the learned Sessions  Judge made the following note: "  The  cross-examining Counsel was asked to  show  the  law which  entitles him to put this question.  He is  unable  to show any law. 1, therefore, do not permit the question to be put unless I am satisfied." In respect of the second question, the following note is  made: "  He  is also unable to show any law entitling him  to  put this question.  I will permit him to put it if he  satisfies me about it." It  appears from the deposition that no other   question  on the basis of the statement made before the police was put to this  witness.  After his evidence was closed,  the  learned Judge  delivered a considered order giving his  reasons  for disallowing the said two questions. The relevant part of the order reads: "Therefore if there is no contradiction between his evidence in Court and his recorded statement in the diary, the latter cannot be used at all.  If a witness deposes in Court that a certain  fact existed but had stated under section  161  Cr. P.  C.  either that that fact had not existed  or  that  the reverse and irreconcilable fact had existed, it is a case of conflict  between  the  deposition  in  the  Court  and  the statement under section 161 Cr.  P. C. and the latter can be used  to  contradict the former.  But if he had  not  stated under  section  161  anything about the fact,  there  is  no conflict and the statement cannot be used to contradict him. In some cases an omission in the statement under section 161 may amount to contradiction of the deposition in Court; they are   the   cases   where  what  is   actually   stated   is irreconcilable with what is omitted and impliedly  negatives its existence." It  is  enough  to notice at this  stage  that  the  learned Sessions Judge did not by the said order rule that no. 881 omission  in the statement made under s. 161 of the Code  of Criminal Procedure can be put to a witness, but stated  that only an omission which is irreconcilable with what is stated in evidence can be put to a witness.  The said two omissions were not put to any of the other witnesses except to one  to whom  only  one  of the said omissions was  put.   No  other omissions were put in the cross-examination either to P.  W. 30 or to any other witness.  The learned Sessions Judge on a consideration  of the voluminous evidence in the  case  held that the guilt was brought home to the said two accused  and convicted  them  as aforesaid.  Tahsildar Singh  and  Shyama Mallah  preferred  two separate appeals to  the  High  Court against  their convictions and sentences.  The  two  appeals were  heard  along with the reference made  by  the  learned Sessions  Judge  under  s.  374  of  the  Code  of  Criminal Procedure  for  the confirmation of the  sentence  of  death awarded  to the appellants.  The learned Judges of the  High Court,  after  reviewing  the entire  evidence  over  again, accepted the findings of the learned Sessions Judge and con- firmed   the  convictions  and  sentences  passed   on   the appellants.   Before the High Court a petition was filed  by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 31  

the appellants alleging that the learned Sessions Judge  did not allow the Counsel for defence to put omissions amounting to   material  contradictions  to  the   eye-witnesses   and therefore the said eye-witnesses should be summoned so  that the said questions might be put to them.  That petition  was filed  on  May  1, 1957, and on July  30,  1957,  after  the argument  in  the  appeals  was  closed,  the  petition  was dismissed.   Presumably, no attempt was made to  press  this application  either  before the appeals were  taken  up  for argument  or  during  the course of the  argument;  but  the question raised in the petition was considered by the earned Judges  of the High Court in their judgment.   The  judgment discloses  that  the  learned  Counsel  appearing  for   the appellants  argued  before the High Court that  the  learned Sessions   Judge  wrongly  disallowed  the   aforesaid   two questions, and the learned Judges, conceding that those  two questions should have been allowed, held that the accused 882 were not prejudiced by the said fact.  They justified  their conclusion by the following reasons: "We did so because among other reasons we decided to  ignore these two circumstances and to base our findings on  matters of  greater  certainty, namely, the fact of  the  miscreants firing  while  advancing, passing in front of  Ram  Swarup’s platform  and  taking  away  Bankey’s  gun  from  the   cot, movements which brought them close to the eye-witnesses  and thereby  gave the witnesses an unmistakable  opportunity  of seeing their faces in the light of the lanterns and the full moon.    These   factors  made  recognition   by   witnesses independent  of any gas lantern or any scrutiny of the  dead bodies,  so  that  these matters ceased to be  of  any  real consequence  and  therefore made the summoning of  the  eye- witnesses before us quite unnecessary ". In the result, they dismissed  the  appeals.  The present appeal is  by  special leave filed against the judgment of the High Court. Learned  Counsel  for the appellants raised  before  us  the following  points  : (1) (a).  Section 162 of  the  Code  of Criminal  Procedure  by  its  own  operation  attracts   the provisions  of  s.  145 of the Evidence Act  and  under  the latter  section the whole vista of cross-examination on  the basis  of  the  previous statement in writing  made  by  the witnesses  before  the police is open to the  accused  ;  to illustrate the contention: a witness can be asked whether he made  a particular statement before the police officers;  if he  says " yes ", the said assertion can be contradicted  by putting  to him an earlier statement which does not  contain such a statement. (1) (b).  The word ’,contradiction " is of such  wide  connotation  that  it  takes  in  all   material omissions  and a Court can decide whether there is one  such omission  as  to  amount to  contradiction  only  after  the question  ,is  put, answered and the relevant  statement  or part  of it is marked, and, therefore, no attempt should  be made  to evolve a workable principle, but the question  must be left at large to be decided by the Judge concerned on the facts of each case. (2) The High Court erred in holding that only  two  questions  were  intended to  be  put  in  cross- examination to the prosecution 883 witnesses whereas the Advocate for the accused in. tended to put to the witnesses many other omissions to establish  that there  was development in the prosecution case from time  to time  but  refrained  from  doing so  in  obedience  to  the considered  order  made by the learned Sessions  Judge.  (3) Even if only two questions were illegally disallowed, as  it was  not  possible to predicate the possible effect  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 31  

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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 31  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 31  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 31  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 31  

throughout  has been to exclude the statement of  a  witness made  before the police during the investigation from  being made use of at the trial for any purpose, and the amendments made from time to time were only intended to make clear  the said object and to dispel the cloud cast on such  intention. The  Act of 1898 for the first time introduced an  exception enabling  the said statement reduced to writing to  be  used for  impeaching  the  credit of the witness  in  the  manner provided  by  the Evidence Act.  As the phraseology  of  the exception   lent  scope  to  defeat  the  purpose   of   the legislature,  by the Amendment Act of 1923, the section  was redrafted   defining  the  limits  of  the  exception   with precision so as to confine it only 112 890 to  contradict the witness in the manner provided  under  s. 145  of the Evidence Act.  If one could guess the  intention of  the legislature in framing the section in the manner  it did in 1923, it would be apparent that it was to protect the accused against the user of the statements of witnesses made before   the  police  during  investigation  at  the   trial presumably  on the assumption that the said statements  were not made under circumstances inspiring confidence.  Both the section and the proviso intended to serve primarily the same purpose, i.e., the interest of the accused. Braund,  J.,  in Emperor v. Aftab Mohd.  Khan (1)  gave  the purpose of s. 162 thus at p. 299: "  As it seems to us it is to protect accused  persons  from being  prejudiced by statements made to police officers  who by  reason of the fact that an investigation is known to  be on  foot  at  the time the statement is made, may  be  in  a position  to  influence the maker of it and,  on  the  other hand,  to protect accused persons from the prejudice at  the hands of persons who in the knowledge that an  investigation has already started, are prepared to tell untruths.  " A division Bench of the Nagpur High Court in Baliram Tikaram Marathe v. Emperor (2) expressed a similar idea in regard to the object underlying the section,at p. 5, thus: "  The object of the section is to protect the accused  both against   over-zealous   police  officers   and   untruthful witnesses.  " The Judicial Committee in Pakala Narayana Swami v. The King- Emperor  (3)  found another object underlying  -the  section when they said at p. 78: "If one had to guess at the intention of the Legislature  in framing a section in the words used, one would suppose  that they  had  in  mind  to encourage  the  free  disclosure  of information  or to protect the person making  the  statement from  a  supposed unreliability of police  testimony  as  to alleged statements or both. Section 162 with its proviso, if construed in the (1) A.I R. 1940 All. 291.      (2) A.I.R. 1945 Nag. 1. (3) (1939) L.R. 66 I. A. 66. 891 manner  which  we will indicate at the later  stage  of  the judgment, clearly achieves the said objects. The learned Counsel’s first argument is based upon the words "  in the manner provided by s. 145 of the  Indian  Evidence Act,  1872  "  found  in s. 162  of  the  Code  of  Criminal Procedure.   Section  145 of the Evidence Act, it  is  said, empowers  the  accused to put all relevant  questions  to  a witness before his attention is called to those parts of the writing  with a view to contradict him.  In support of  this contention  reliance  is placed upon the  judgment  of  this Court  in Bhagwan Singh v. The State of Punjab  (1).   Bose, J.,  describes the procedure to be followed to contradict  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 31  

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-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 31  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 31  

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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 31  

the  concept of the negative or the positive aspect  of  the same recital, and the ’principle of inherent repugnancy, may in  one sense rest on omissions, but, by  construction,  the said omissions must be deemed to be part of the statement in writing.   Such omissions are not really omissions  strictly so  called and the statement must be deemed to contain  them by  implication.  A statement, therefore, in our  view,  not only  includes  what is expressly stated therein,  but  also what is necessarily implied therefrom. "  Contradict " according to the Oxford Dictionary means  to affirm  to  the contrary.  Section 145 of the  Evidence  Act indicates the manner in which contradiction is brought  out. The  cross-examining Counsel shall put the part or parts  of the  statement which affirms the contrary to what is  stated in  evidence.   This indicates that there  is  something  in writing  which can be set against another statement made  in evidence.  If the statement before the police-officer-in the sense  we have indicated-and the statement in  the  evidence before the Court are so inconsistent or irreconcilable  with each other that both of them cannot co-exist, it may be said that one contradicts the other. It  is  broadly  contended that  a  statement  includes  all omissions  which are material and are such as a  witness  is expected  to  say  in the normal  course.   This  contention ignores the intention of the legislature expressed in s. 162 of  the Code and the nature of the non-evidentiary value  of such  a  statement,  except  for  the  limited  purpose   of contradiction.  Unrecorded statement is completely excluded. But  recorded  one  is used for a  specified  purpose.   The record  of a statement, however perfunctory, is  assumed  to give  a  sufficient  guarantee to  the  correctness  of  the statement made, but if words not recorded are brought in  by some fiction, the object of the section would be 897 defeated.   By  that process, if a part of  a  statement  is recorded, what was not stated could go in on the sly in  the name  of contradiction, whereas if the entire statement  was not  recorded, it would be excluded.  By doing so, we  would be circumventing the section by ignoring the only  safeguard imposed by the legislature, viz., that the statement  should have been recorded. We  have already pointed out that under the amending Act  of 1955,  the prosecution is also allowed to use the  statement to  contradict a witness with the permission of  the  Court. If  construction of the section as suggested by the  learned Counsel  for  the appellants be  accepted,  the  prosecution would  be able to bring out in the  cross-examination  facts stated by a witness before a police-officer but not recorded and  facts  omitted  to be stated by  him  before  the  said officer.   This  result is not decisive on the  question  of construction, but indicates the unexpected repercussions  of the argument advanced to the prejudice of the accused. As  s.  162 of the Code of Criminal  Procedure  enables  the prosecution  in the reexamination to rely upon any  part  of the  statement used by the defence to contradict a  witness, it  is  contended  that  the  construction  of  the  section accepted  by us would lead to an anomaly, namely,  that  the accused cannot ask the witness a Single question, which does not amount to contradiction whereas the prosecution,  taking advantage  of  a  single contradiction relied  upon  by  the accused,  can reexamine the witness in regard to any  matter referred to in his cross-examination, whether it amounts  to a contradiction or not.  I do not think there is any anomaly in  the  situation.  Section 145 of the Evidence  Act  deals with  cross-examination in respect of a  previous  statement

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 31  

made by the witness.  One of the modes of  cross-examination is  by contradicting the witness by referring him  to  those parts of the writing which are inconsistent with his present evidence.   Section  162, while confining the right  to  the accused  to  cross-examine the witness in the  said  manner, enables the prosecution to reexamine the witness to  explain 113 898 the  matters  referred to in  the  cross-examination.   This enables the prosecution to explain the alleged contradiction by  pointing  out that if a part of the  statement  used  to contradict  be  read in the context of any  other  part,  it would  give  a different meaning; and if so read,  it  would explain  away the alleged contradiction.  We think that  the word  "  cross-examination " in the last line of  the  first proviso  to s. 162 of the Code of Criminal Procedure  cannot be understood to mean the entire gamut of  cross-examination without  reference to the limited scope of the proviso,  but should   be  confined  only  to  the  cross-examination   by contradiction allowed by the said proviso. The  conflict  of  judicial  opinion  on  this  question  is reflected in the decisions of different High Courts in  this country.   One of the views is tersely put by Burn J. in  In re Ponnusami Chetty (1) at p. 476: "Whether  it  is  considered  as  a  question  of  logic  or language,  " omission " and " contradiction " can  never  be identical.   If a proposition is stated,  any  contradictory proposition  must  be  a statement  of  some  kind,  whether positive  or negative.  To " contradict " means to  "  speak against " or in one word to " gainsay ". It is absurd to say that you can contradict by keeping silence.  Silence may  be full  of  significance,  but  it is not  "  diction  ",  and therefore  it  cannot be "  contradiction "Considering  the provisions of s. 145 of the Evidence  Act, the learned Judge observed thus at p. 477: "  It  would be in my opinion sheer misuse of words  to  say that  you are contradicting a witness by the  writing,  when what you really want to do is to contradict him by  pointing out  omissions from the writing.  I find myself in  complete agreement with the learned Sessions Judge of Ferozepore  who observed  that  " a witness cannot be  confronted  with  the unwritten record of an unmade statement "." The  learned  Judge  gives  an illustration  of  a  case  of apparent omission which really is, a contradiction, i.e.,  a case where a witness stated under s. 162 of the Code that he saw three persons beating a man and later (1)  (1933) I.L.R. 56 Mad. 475. 899 stated in Court that four persons were beating the same man. This  illustration indicates the trend of the  Judge’s  mind that  he was prepared to treat an omission of that  kind  as part of the statement by necessary implication.  A  Division Bench of the ’Madras High Court followed this judgment in In re  Guruva Vannan (1).  In that judgment, Mockett, J.,  made the following observation at p. 901 : "  I  respectfully agree with the judgment of Burn,  J.,  in Ponnuswamy Chetty v. Emperor (2) in which the learned  Judge held  that  a  statement under section 162 of  the  Code  of Criminal  Procedure cannot be filed in order to show that  a witness is making statements in the witness box which he did not  make to the police and that bare omission cannot  be  a contradiction.  The learned judge points out that, whilst  a bare  omission  can never be a  contradiction,  a  so-called omission in a statement may sometimes amount to a contradic- tion,  for  example, when to the police  three  persons  are

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 31  

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:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 31  

" 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 31  

It is not necessary to multiply cases.  The two  conflicting views  may be briefly stated thus: (i) omissions, unless  by necessary implication be deemed to be part of the statement, cannot  be  used  to contradict the statement  made  in  the witness-box;  and (ii) they must be in regard  to  important features  of the incident which are expected to be  included in  the  statement  made  before  the  police.   The   first proposition  not  only  carries out  the  intention  of  the legislature but is also in accord with the plain meaning  of the  words used in the section.  The second proposition  not only stretches (1) A.I.R. 1932 Lah. 103.      (2) A.I.R. 1938 Pat. 579.            (3) A.I.R. 1936 M.P. 13. 903 the  meaning of the word " statement " to a breaking  point, but   also   introduces  an   uncertain   element,   namely, ascertainment of what a particular witness would have stated in  the  circumstances  of a particular case  and  what  the police officer should have recorded.  When the section  says that  the  statement  is  to  be  used  to  contradict   the subsequent  version  in  the  witness-box,  the  proposition brings in, by construction, what he would have stated to the police within the meaning of the word " statement ". Such  a construction is not permissible. From  the  foregoing discussion the  following  propositions emerge: (1) A. statement in writing made by a witness before a police officer in the course of investigation can be  used only to contradict his statement in the witness-box and  for no  other purpose; (2) statements not reduced to writing  by the  police  officer cannot be used for  contradiction;  (3) though  a particular statement is not expressly recorded,  a statement  that can be deemed to be part of  that  expressly recorded can be used for contradiction, not because it is an omission strictly so-called but because it is deemed to form part  of  the  recorded statement; (4)  such  a  fiction  is permissible  by  construction only in  the  following  three cases:  (i) when a recital is necessarily implied  from  the recital  or recitals found in the statement ;  illustration: in  the  recorded statement before the  police  the  witness states  that  he saw A stabbing B at a particular  point  of time,  but  in the witness-box he says that he saw A  and  C stabbing  B  at  the same point of time;  in  the  statement before  the police the word " only " can be  implied,  i.e., the witness saw A only stabbing B; (ii) a negative aspect of a  positive  recital in a statement;  illustration:  in  the recorded statement before the police the witness says that a dark  man stabbed B, but in the witness-box he says  that  a fair man stabbed B; the earlier statement must be deemed  to contain  the  recital not only that the culprit was  a  dark complexioned   man  but  also  that  be  was  not  of   fair complexion;  and (iii) when the statement before the  police and   that   before  the  Court   cannot   stand   together; illustration: the witness says in the recorded 904 statement before the police that A after stabbing B ran away by a northern lane, but in the Court he says that immediatly after stabbing he ran away towards the southern lane; as  he could  not  have run away immediately  after  the  stabbing, i.e.,  at the same point of time, towards the northern  lane as  well as towards the southern lane, if one  statement  is true, the other must necessarily be false. The aforesaid examples are not intended to be exhaustive but only illustrative.  The same instance may fall under one  or more  heads.   It is for the trial Judge to decide  in  each case’  after  comparing the part or parts of  the  statement

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 31  

recorded by the police with that made in the witness-box, to give  a ruling, having regard to the  aforesaid  principles, whether  the recital intended to be used  for  contradiction satisfies the requirements of law. The  next point is what are the omissions in  the  statement before  the police which the learned Sessions Judge did  not allow the accused to put to the witnesses for  contradicting their   present  version.   The  learned  Counsel  for   the appellants contends that the accused intended to put to  the witnesses the following omissions, but they did not do so as the learned Sessions Judge disallowed the two questions  put to  P. W. 30 and made a considered order giving his  reasons for doing so, and that the learned Counsel thought it proper not  to put the same questions or other questions in  regard to  omissions  to P. W. 30 or to the  other  witnesses  that followed  him.  The said omissions are: (1) The  warning  by the members of the gang on their arrival to the audience  at the  music  party  not to stir from their  places;  (2)  the presence of a gas lantern;(3) the  chase of Bharat Singh  by the assailants; (4) the  scrutiny of the dead bodies by  the gang; and (5)  the return of the gang in front of the  house of Bankey.  The learned Counsel for the respondent  contests this  fact and argues that only two omissions,  namely,  the presence  of  a  gas-lantern and the scrutiny  of  the  dead bodies by the gang, were put in the cross-examination of  P. W.  30 and no other omissions were put to him or  any  other witness, and that indeed the order 905 of  the  learned Sessions Judge did not  preclude  him  from putting  all the omissions to the witnesses and  taking  the decision   of   the   Judge  on  the   question   of   their admissibility.   He  further contends that even  before  the learned  Judges  of  the High Court  the  Advocate  for  the appellants  only made a grievance of hi,,; not  having  been allowed to put the aforesaid two omissions and did not argue that he intended to rely upon other omissions but did not do so  as  he  thought that the learned  Sessions  Judge  would disallow  them pursuant to his previous order.   Before  the High Court an application was filed for summoning eight eye- witnesses on the ground that the learned Sessions Judge  did not  allow  the  Counsel for defence to  put  the  omissions amounting to material contradiction to them, but no  mention was  made  in that application of the  number  of  omissions which  the accused intended to put to the  eye-witnesses  if they  were summoned.  That application was filed on  May  1, 1957,  but  no attempt was made to get a  decision  on  that application  before the arguments were  heard.   Presumably, the   Court  as  well  as  the  parties  thought  that   the application  could  more conveniently be disposed  of  after hearing  the  arguments.   On July 30,  1957)  1  after  the appellants were fully heard, that application was  dismissed and the detailed reasons for dismissing it were given in the judgment,  which was delivered on September 11,  1957.   The judgment  of  the learned Judges of the High  Court  clearly indicates  that  what was argued before them  was  that  two omissions  sought to be put to P. W. 30 were disallowed  and therefore the accused did not put the said omissions to  the other  witnesses.   It was not contended on  behalf  of  the accused  that other omissions were intended to be  used  for contradiction,  but  were not put to the  witnesses  as  the Advocate  thought that in view of the order of  the  learned Sessions Judge they would not be allowed automatically.  The learned Judges held that the said two omissions amounted  to material  contradiction and that the learned Sessions  Judge was wrong in disallowing them, but they ignored those

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 31  

114 906 two  circumstances  and based their findings on  matters  of greater certainty.  If really the Judges had made a  mistake in appreciating the arguments of the learned Counsel for the appellants in the context of omissions, one would expect the accused  to  mention  the said  fact  prominently  in  their application  for  special leave.  Even if  they  omitted  to mention that fact in the application for special leave, they could have filed an affidavit sworn to by the Advocate,  who appeared  for  them before the learned Judges  of  the  High Court,  mentioning  the fact that in spite of  the  argument specifically  directed  to the other omissions  the  learned Judges  by  mistake  or over-sight  failed  to  notice  that argument.  The learned Counsel who argued before us did  not argue before the High Court, and, therefore, obviously he is not  in  a position to assert that the  Judges  committed  a mistake in omitting to consider the argument advanced before them.  But he made strenuous attempts before us to  persuade us  to hold that there must have been a mistake.   He  would say that the learned Counsel had in fact relied upon all the aforesaid omissions in support of his contention that  there was development of the case of the prosecution from time  to time  and therefore he must have also relied upon  the  said omissions in the context of the statements made under s. 162 of  the Code of Criminal ’Procedure; on the other hand,  the fact  that  the learned Judges considered  all  the  alleged omissions  in connection with the said contention  and  only considered  two omissions in regard to the contention  based on  s.  162 of the Code is indicative of the fact  that  the learned  Counsel,  for reasons best known to  him,  did  not think  fit  to  rely upon all the  alleged  omissions.   The deposition of P.W. 30 also shows that only two omissions  in the  statement before the police, viz., the existence  of  a gas-lantern and the scrutiny of the dead bodies by the gang, were  put  to  him  in  cross-examination  and  the  learned Sessions Judge disallowed those questions on the ground that the  learned Counsel was not able to ‘how any law  entitling him to put the said questions.  Though the witness was  exa- mined at some length no other alleged omissions in 907 the  statement  before the police were sought to be  put  to him.   It  would be seen from the short order  made  by  the learned  Sessions  Judge  at the time each one  of  the  two questions were put, that the learned Sessions Judge did  not give  a  general  ruling that no omissions  in  a  statement before  the police could be put to a witness.   The  rulings were  given,  having regard to the nature of  the  omissions relied upon.  But after the entire evidence of P. W. 30  was closed, the learned Sessions Judge gave a considered  order. Even  in  that order, he did not rule out all  omissions  as inadmissible,  but clearly expressed the view that  if  what was  stated in the witness-box was irreconcilable with  what was omitted to be stated in the statement, it could go in as material contradiction.  Even after this order, it was open‘ to  the appellants to bring out all such omissions,  but  no attempt was made by them to do go.  These circumstances also support  the  impression of the learned Judges of  the  High Court  that what was argued before them was only in  respect of the two specified omissions put to P. W. 30 in his cross- examination.   We, therefore, hold that only  two  omissions relating  to  the  existence  of  the  gas-lantern  and  the scrutiny of the faces of the deceased by the appellants were put  to  P. W. 30 and were intended to be put to  the  other witnesses,  but were not so done on the basis of the  ruling

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 31  

given by the Court. Would those two omissions satisfy the test laid down by us ? The  witness stated in the Court that there was  a  gas-lamp and that some of the miscreants scrutinised the faces of the dead bodies.  In their statements before the police they did not  mention  the said two facts and some of  the  witnesses stated that there were lanterns.  Taking the gas-lamp first: the scene of occurrence was not a small room but one spread- over from the well to Bankey’s house.  From that omission in the  statement it cannot necessarily be implied  that  there was  no  gas-lamp in any part of the  locality  wherein  the incident  took  place;  nor  can it be  said  that,  as  the witnesses  stated  that there were lanterns,  they  must  be deemed  to have stated that there was no gas-lamp,  for  the word " lantern is 908 comprehensive  enough to take in a gas-lantern.  It is  also not  possible to state that the statements made  before  the police and those made before the Court cannot co-exist,  for there  is  no  repugnancy between the two, as  even  on  the assumption  that  lantern excludes a gas-lantern,  both  can exist in the scene of occurrence.  The same can be said also about the scrutiny of the faces of the dead bodies.  In  the statements  before the police, the movements of  the  appel- lants  were  given.   It was stated that they  shot  at  the people  and  decamped  with the gun of  Bharat  Singh.   The present  evidence that in the course of their pursuit,  they looked  at the faces of two of the dead bodies does  not  in any  way  contradict  the previous versions,  for  the  said incident  would  fit  in with the  facts  contained  in  the earlier  statements.  The appellants could have shot at  the audience, pursued them, taken the gun of Bharat Singh and on their way scrutinised the dead bodies.  The alleged omission does not satisfy any of the principles stated by us. In  this view, it is unnecessary to express our  opinion  on the question whether, if the said two omissions amounted  to contradiction  within the meaning of s. 162 of the  Code  of Criminal   Procedure,  the  appellants  were  in   any   way prejudiced in the matter of their trial. The   last  contention  of  the  learned  Counsel  for   the appellants  is  that the learned Judges of  the  High  Court acted  illegally  in testing the veracity of  the  witnesses with  reference  to the contents of  the  first  information report.   A perusal of the judgment of the High Court  shows that the Advocate for the appellants contended before  them, inter  alia,  that the witnesses should not be  believed  as their  present  version  was  inconsistent  with  the  first information  report.   The learned Judges assumed  that  the said  process  was permissible and even on  that  assumption they  rejected  the  plea of the  learned  Counsel  for  the appellants  that  there was improvement in  the  prosecution case.   The learned Judges were really meeting the  argument of  the learned Counsel for the appellants.  It is  idle  to suggest  that  they erred in law in relying upon  the  first infor- 909 mation  report  to discredit the witnesses  for  the  simple reason  that  they accepted the evidence in  spite  of  some omissions in the first information report. In the result, we confirm the judgment of the High Court and dismiss the appeal. HIDAYATULLAH, J.-The judgment which I am delivering has been prepared by my learned brother, Imam, J. and myself We  agree that the appeal be dismissed but would express  in our own words the grounds upon which it should be dismissed.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 31  

The main contention advanced on behalf of the appellants was as  follows:  There was no fair trial of the  appellants  as they had been deprived of the right of cross-examination  of the prosecution witnesses with reference to their statements made  to  the police during the police  investigation.   The trial  Judge had disallowed two questions in  this  respect, and  the lawyer for the appellants regarded the decision  of the  learned Judge as one which prevented him  from  putting further  questions with respect to other matters  concerning the  police statements of the witnesses.  The order  of  the learned Judge had to be respected.  The order of the learned Judge  was  illegal, as on a proper  interpretation  of  the provisions of s. 162 of the Code of Criminal Procedure,  the appellants  were entitled not only to put the two  questions which  were  ruled out, but also questions with  respect  to other  matters arising out of the police statements  of  the witnesses.  The purpose of cross-examination is to test  the reliability of the witnesses both as to what they had to say about   the   occurrence   itself   and   concerning   their identification  of those who had participated in it.   There were several matters with respect to which, if questions had been  allowed  to be put,  an  effective  -cross-examination might  have resulted and enabled the appellants to  persuade the  trial  Judge to hold that the witnesses  were  entirely unreliable.  In a case of this kind in which the  appellants were involved, there were only two principal questions which were of vital importance:     (1) how far the witnesses  had improved their 910 story in their evidence in Court from what they had said  to the police concerning the occurrence, and (2) the  existence of  opportunity  and  sufficient  light  to  enable   proper identification. It  may  be  assumed,  although it  has  been  a  matter  of controversy,  that the order of the trial Judge  disallowing the  two  questions  which were put was  understood  by  the lawyer for the defence to mean that all similar questions in the  nature  of  omissions in  the  police  statements  with respect  to matters stated in Court would be disallowed  and therefore  no attempt was made to put further  questions  to the witnesses in this respect. Unfortunately,  the lawyer for the defence had not  in  this particular case laid any adequate foundation upon which  the two  questions,  which  were  ruled  out,  could  have  been properly  put.   From that point of view, the order  of  the trial Judge in disallowing those questions was not improper. It  could not, therefore, be said that the trial  Judge  had done  anything  which  could  be  rightly  characterised  as infringement  of  the provisions of s. 162 of  the  Code  of Criminal Procedure or of the Indian Evidence Act, or even of the rules of natural justice. Johari  Chowkidar had reported the occurrence to the  police station, which was a brief statement.  Certain matters were, however,  definitely  mentioned  the names  of  the  persons recognised  in the occurrence, the number of persons  killed and injured, the taking away of a gun which was with  Bharat Singh, Bankey Kumhar firing his gun at the culprits in  such a  manner that some of them must have been injured, and  the existence of light from the moon and lantern.  The principal comment had been that in this report there was no mention of the culprits having advanced from the well towards the  open place  where villagers had gathered to hear the  music.   On the  contrary, the first information report  indicated  that the  firing  was done from the parapet of the well.   It  is clear,  however, from Johari’s statement that  the  culprits

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 31  

had  taken away the gun which was with Bharat  Singh.   This could only have been done if the culprits had 911 advanced from the well to the place where the villagers  had assembled. It  was then commented that in the first information  report the culprits were said to have come from the southern  lane, while  in Court the evidence was that they had come  to  the well from the eastern lane.  The discrepancy is a minor one. Joliari  must have been concerned with reporting  the  first firing from the well, and he might have mistaken the  actual direction  from which the culprits had approached the  well. Johari’s statement made no mention of the culprits  uttering any  warning  that no one was to run away as  they  advanced from the well, whereas in Court the witnesses spoke to  that effect.   This  was  a detail which Johari  might  not  have considered to be of sufficient importance, as he was anxious to  make  a  bare statement in order to get  the  police  to proceed  to the place of occurrence as quickly as  possible. Johari’s  statement  also makes no mention of  the  culprits examining  the bodies of the dead and examining their  faces and exclaiming that Asa Ram, one of the men whom they wished to kill, had been killed.  Here again, this was a matter  of detail  which Johari might not have considered necessary  to mention.   The first information report made no  mention  of the  existence of gas light.  It did, however,  mention  the existence  of light of lantern and existence  of  moonlight. The  existence  of  light from lantern  and  the  full  moon obviously was sufficient to recognise known persons.  It  is in evidence that the appellants were known for several years to the witnesses who had identified them as participants  in the  occurrence.   It  could  not  be  said  with   absolute certainty  that  the mention of the existence  of  light  of lantern excluded the existence of gas light.  The  statement of  Johari gives clear indication that the culprits did  not remain  all  the time at the well, because  they  must  have advanced  to take away the gun which was with Bharat  Singh. The culprits must have stayed at the place of occurrence for some  time to enable Bankey Kumhar to fire his gun  at  them and  to convey to Johari’s mind the certainty that  some  of the culprits must have been injured.  Reference is made only to 912 some of the details and not to all the discrepancies pointed out in order to determine whether the alleged improvement in the  story  of  the witnesses in Court from  what  they  are alleged  to have stated to the police was with reference  to vital  matters,  which went to the root of  the  prosecution case. It is apparent from what has been stated above that even  if the  defence  had been allowed to put  questions  concerning these  alleged omissions in the statements of the  witnesses to  the  police, it could not have made  their  evidence  in Court  unreliable  with respect to any  material  particular concerning  the  occurrence  or the  identification  of  the accused. From the above, it seems to us that there is no merit in the appeal.   As, however, considerable argument has  been  made concerning the right of cross. examination and as to how the provisions  of  s.  162 of the Code  of  Criminal  Procedure should  be construed, it becomes necessary to  consider  the submissions of the learned counsel for the appellants. The  provisions of the Code of.  Criminal Procedure of  1861 and 1872 have been referred to by our learned brother, Subba Rao,  J. Section 162 of the Code of 1872 made it clear  that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 31  

except for a dying declaration and matters coming within the provisions  of s. 27 of the Indian Evidence Act of 1872,  no statement  of  any person made to a police  officer  in  the course of in. vestigation, if reduced into writing, could be used as evidence against the accused.  There was no restric- tion  as to the extent of the right of an accused to  cross- examine  a prosecution witness concerning his  statement  to the police.  Section 162 of the Code of 1898 prohibited  the use of a statement reduced into writing, as evidence  except any statement falling within the provisions of s. 32 of  the Indian  Evidence  Act, 1872.  The proviso to  this  section, however,  expressly stated that in spite of the  prohibition in  the main provision, the accused could use such a  state- ment  to impeach the credit of the witnesses in  the  manner provided  in  the Indian Evidence Act of 1872.  It  will  be seen  therefore  that until 1898 there was  no  restriction, imposed upon the accused as to the extent 913 of his right of cross-examination.  As s. 162 of the Code of 1898  entirely prohibited the use of the  statement  reduced into writing as evidence, the proviso to it safeguarded  the right  of the accused to impeach the credit of such  witness in  the  manner provided in the Indian Evidence  Act,  1872. Under  the  Indian Evidence Act, a witness’s credit  can  be impeached under ss. 145 and 155 of that Act.  The manner  in which the provisions of these sections could be utilized  to impeach  the credit of a witness covers a wide  field.   If, however, it was intended to contradict a witness  concerning his  previous  statement  reduced  into  writing,  then  the provisions of s. 145 require that those parts of the writing by  which  it was sought to contradict the witness  must  be shown to him.  There can, be no doubt that the provisions of the  Code  from 1861 to 1898 in no way curbed the  right  of cross-examination on behalf of the accused.  The  provisions were intended to protect the accused in that no statement of a  witness to the police reduced into writing could be  used as evidence against him, but the right to cross-examine  the witness  to  the  fullest  extent  in  accordance  with  the provisions of the Indian Evidence Act in order to show  that he  was unreliable, remained unaffected.  The real  question for  consideration is whether the amendment of the  Code  in 1923  brought about such a radical change in the  provisions of s. 162 of the Code as to suggest that the Legislature had taken  a  retrograde step, and had intended to  deprive  the accused  of  the right of cross-examination  of  prosecution witnesses  concerning their police statements except in  one restricted particular, namely, to make use of the statements reduced  into  writing to contradict the  witnesses  in  the manner provided by s. 145 of the Indian Evidence Act. The provisions of s. 162 of the Code of 1898 were amended in 1923  in  the  hope that the  amendment  would  resolve  the various  doubts  which  had  sprung  up  as  the  result  of divergent  judicial  opinions  as to the  meaning  of  these Provisions.   The provisions of s. 162 of the Code  of  1898 had been variously construed, 115 914 and  the  amendment in 1923 has not improved  matters.   The amended  section  still remains difficult to  construe.   We shall endeavour now to construe it. Under  s.  161 of the Code, the police officer  may  examine orally  any person supposed to be acquainted with the  facts and  circumstances  of the case.  He may  also  reduce  into writing  any  statement made to him in the  course  of  such examination,  and  if he does so, he must  make  a  separate

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 31  

record of the statement of each such person. The legislature has, however, put restrictions upon the  use of  such statements at the inquiry or trial of the  offence. The  first  restriction  is that no statement  made  by  any person  to  a police officer, if reduced  into  writing,  be signed  by the person making it.  The intention  behind  the provision  is easy to understand.  The legislature  probably thought that the making of statements by witnesses might  be thwarted, if the witnesses were led to believe that  because they had signed the statements they were bound by them,  and that  whether  the statements were true or  not,  they  must continue  to stand by them.  The legislature  next  provides that a statement, however recorded, or any part of it  shall not  be  used  for  any purpose (save  as  provided  in  the sections  at the inquiry or trial in respect of any  offence under investigation at the time such statement is wade.  The object  here  is not easily discernible, but perhaps  is  to discourage over-zealous police officers who might  otherwise exert themselves to improve the statements made before them. The Privy Council considered the intention to be: " If one had to guess at the intention of the legislature in framing a section in the words used, one would suppose  that they  had  in mind to encourage the free disclosure  of  the information  or to protect the person making  the  statement from  a  supposed unreliability of police  testimony  as  to alleged statements or both." It  is possible that the legislature had also in  mind  that the  use  of  statements made under  the  influence  of  the investigating  agency might, unless restricted to a use  for the benefit of the accused, result in considerable 915 prejudice  to him.  But whatever the intention which led  to the imposition of the restrictions, it is manifest that  the statements,  however recorded, cannot be used except to  the extent allowed by the section.  The prohibition contained in the words "any purpose" is otherwise absolute. Then follow two provisos.  The first gives the right to  the accused  to make use of the statements for  contradicting  a witness for the prosecution in the manner provided by s. 145 of  the Indian Evidence Act.  It also gives a right  to  the prosecution   to   use  the  statement   for   purposes   of reexamination  of the same witness but only to  explain  any matter referred to in the cross-examination of the witness. The  first  proviso,  when  analysed,  gives  the  following ingredients: (i)  A prosecution, witness Is called for the prosecution ; (ii) whose statement has previously been reduced to writing; (iii)     The accused makes a request (iv) The  accused is furnished with a copy of  the  previous statement; (v)  In  order  that  any part of such  statement,  if  duly proved, may be used to contradict such witness in the manner provided by s. 145 of the Indian Evidence Act. If  the  a accused exercises the right in (v) above  in  any instance,  then  the prosecution has the right  to  use  the statement  in the reexamination of the witness but  only  to explain any matters referred to by him in cross-examination. Section 145 of the Indian Evidence Act reads: Cross-examination  as to previous statements in  writing:  A witness may be cross-examined as to previous statements made by  him in writing or reduced into writing, and relevant  to matters  in  question, without such writing being  shown  to him, or being proved ; but, if it is intended to  contradict him  by the writing, his attention must, before the  writing

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 31  

can be proved, be called to those parts of it, which are  to be used for the purpose of contradicting him." 916 The section analysed, gives the following result: (1)  Witnesses   can  be  cross-examined  as   to   previous statements in writing or reduced into writing; (2)  These  writings need not be shown to the  witnesses  or proved beforehand; (3)  But  if  the  intention is to contradict  them  by  the writings, (a)  their attention must be drawn to those parts which  are to be used for contradiction ; (b)  This should be done before proving the writings. Our learned brother, Subba Rao, J., restricts the use by the accused  of  the  previous statements to  the  mechanism  of contradiction  as detailed in (3) above, but says  that  the accused  has  no  right to proceed under (1)  and  (2).   He deduces  this  from  the  words of s. 162  of  the  Code  of Criminal Procedure, where it is provided : " in order that any part of such statement, if duly  proved, may  be  used  to  contradict such  witness  in  the  manner provided by section 145 of the Indian Evidence Act, 1872." The fact that the accused can use the previous statement for the  purpose  of  contradicting,  shows  that  the  previous statement  cannot  be used for  corroborating  the  witness. Also  there must be some basis for contradicting.  This  may arise,   because  of  there  being  a  contrary   statement, irreconcilable  statement or even material  omissions.   The accused can establish a contradiction by cross-examining the witness  but only so as to bring out a contradiction and  no more.  We regret we cannot agree (and we say this with  pro- found  respect) that the accused is not entitled  to  cross- examine  but  only  to  contradict.   In  our  opinion,  the reference to s. 145 of the Indian Evidence Act brings in the whole  of the manner and machinery of s. 145 and not  merely the  second part.  In this process, of course,  the  accused cannot go beyond s. 162 or ignore what the section prohibits but  cross-examination to establish a contradiction  between one statement and another is certainly permissible. This question loses much of its importance when 917 there  are patent contradictions and they can be put to  the witness   without  any  cross-examination  as  in  the   two statements: (a)  I saw A hit B. (b)  I did not see A hit B. But there are complex situations where the contradiction  is most  vital  and relevant but is not so patent.,  There  are cases of omissions on a relevant and material point.  Let us illustrate our meaning by giving two imaginary statements: (a)  When I arrived at the scene I saw that X was running   away, chased by A and B who caught him. (b)  When I arrived at the scene I saw X take out a dagger  from his pocket, stab D in his chest and then take to his  heels. He was chased by A and B who caught him. There  is an omission of two facts in the  first  statement, viz.,  (a) X took out a dagger from his pocket, and  (b)  he stabbed  D  in  the chest.  These two  statements  or  their omission  involve  a contradiction as to the  stage  of  the occurrence, when the observation of the witness began. What  s. 145 of the Indian Evidence Act provides is  that  a witness  may  be contradicted by a  statement  reduced  into writing  and  that  is also the use  to  which  the  earlier statement  can be put under s. 162 of the Code  of  Criminal Procedure.    When   some   omissions   occur,   there    is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 31  

contradiction in one sense but not necessarily on a relevant matter.   The  statements of witnesses may and  do  comprise numerous  facts and circumstances, and it happens that  when they  are  asked to narrate their version over  again,  they omit  some  and add others.  What use can be  made  of  such omissions or additions is for the accused to decide, but  it cannot  be doubted that some of the omissions  or  additions may have a vital bearing upon the truth of the story  given. We  do not think that by enacting s. 162 in the words  used, the legislature intended a prohibition of  cross-examination to  establish which of the two versions is an authentic  one of the events as seen by the witness.  The use of the words" reexamination and " cross-examination " in the same 918 proviso  shows that cross-examination is contemplated or  in other  words, that the manner of contradiction under s.  145 of the Indian Evidence Act comprises both  cross-examination and  contradiction.   Indeed, the second part  is  only  the final          stage         of         the          contra- diction,which includes the earlier stages.  Reexamination is only permissible where there is cross-examination. It must not be overlooked that the cross-examination must be directed  to  bringing  out  a  contradiction  between   the statements and must not subserve any other purpose.  If  the cross-examination  does  anything else, it  will  be  barred under s. 162, which permits the use of the earlier statement for  contradicting a witness and nothing else.   Taking  the example given above, we do not see why cross-examination may not be like this: Q.   I  put it to you that when you arrived on the  scene  X was  already running away and you did not actually  see  him stab D as you have deposed to-day ? A.   No. I saw both the events. Q.   If  that  is so, why is your statement  to  the  police silent as to stabbing ? A. I stated both the facts to the police. The  witness  can  then be contradicted  with  his  previous statement.    We   need  hardly  point  out  that   in   the illustration  given  by us, the evidence of the  witness  in Court  is direct evidence as opposed to testimony to a  fact suggesting  guilt.  The statement before the police only  be called circumstantial evidence of, complicity and not direct evidence in the strict sense. Of course, if the questions framed were: Q.   What did you state to the police ? or Q.   Did you state -to the police that D stabbed X ? They  may be ruled out as infringing s. 162 of the  Code  of Criminal   Procedure,  because  they  do  not  set   tip   a contradiction  but attempt to get a fresh version  from  the witnesses with a view to contradicting him.  How the  cross- examination  can  be made must obviously vary from  case  to case,  counsel  to counsel and statement to  statement.   No single  rule  can  be laid down and  the  propriety  of  the question in the light of 919 the  two  sections  can be found only  when  the  facts  and questions are before the Court.  But we are of opinion  that relevant   and   material   omissions   amount   to    vital contradictions,   which   can  be  established   by   cross- examination  and confronting the witness with  his  previous statement. The  word " contradict " has various ’Meanings, and  in  the Oxford  English Dictionary it is stated as " To be  contrary to in effect, character, etc. ; to be directly opposed to go counter  to, go against " as also " to affirm  the  contrary

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 31  

of; to declare untrue or erroneous; to deny categorically  " and  the  word  "  contradiction " to  mean  "  A  state  or condition  of  opposition  in things  compared  ;  variance; inconsistency,  contrariety  ". In  Shorter  Oxford  English Dictionary,  "  contradict  "  is said  to  mean  "To  speak against;  to  oppose in speech ; to forbid ; to  oppose;  to affirm  the contrary of; to declare untrue or erroneous;  to deny  to be contrary to go counter to and go against  and  " contradiction  " to mean " A state of opposition  in  things compared;  variance; inconsistency".  The meaning  given  to the  words  ,contradict  " and " contradiction  "  in  these Dictionaries  must at least include the case of an  omission in  a  previous statement which by  implication  amounts  to contradiction  and  therefore such an omission is  a  matter which  is  covered  by  the first  proviso  to  s.  162  and questions  in cross. examination can be put with respect  to it  in over to contradict the witness.  It is  difficult  to say  as an inflexible rule that any other kind  of  omission cannot be put to a witness in order to contradict him,  when the  proper  foundation  had  been  laid  for  putting  such questions.  The words " to contradict him " appearing in  s. 145  of the Evidence Act must carry the same meaning as  the words " to contradict such witness " in s. 162 of the  Code. In a civil suit, where the provisions of s. 162 of the  Code of  Criminal  Procedure  have no application,  would  it  be correct  to say that only questions concerning omissions  of the  kind suggested by our learned brother could be put  and none other ?  We cannot see why a question of the nature  of cross-examination regarding an omission with respect to a 920 matter  which  the witness omitted to make in  his  previous statement  and  which, if made, would. have  been  recorded, cannot  be  put.  The facts and circumstances of  each  case will determine whether any other kind of omission than  that referred to by our learned brother could be put to a witness in  order to contradict him.  It would be for the  Judge  to decide in each case whether in the circumstances before  him the question could be put.  The purpose of cross-examination is  to test the veracity of the statement made by a  witness in  his examination-in-chief as also to impeach his  credit. Not only is it the right of the accused to shake the  credit of a witness, but it is also the duty of the Court trying an accused  to satisfy itself that the witnesses are  reliable. It would be dangerous to lay down any hard and fast rule. We pause to look at the matter from another angle.  We shall assume that the interpretation which the State claims should be put upon s. 162(1) is correct and compare the  respective rights  of  the accused and the prosecution.   According  to this  interpretation,  the accused has no  right  of  cross- examination  in  respect of the contradiction.   This  means that no question can be put about the previous statement but only  the  part  in which there is a  contradiction  can  be brought to the witness’s notice and his explanation, if any, obtained.   In other words, there is only " contradiction  " and no more.  But when the accused has used the statement to contradict the witness-it may be only on one point-what  are the rights of the prosecution ? The prosecution can use  any part  of  the  statement in the reexamination  not  only  to explain the I contradiction’ but also to explain any  matter referred to in the cross-examination of the witness. If  I contradiction ’ does not include the right  of  cross- examination,  the right of the prosecution must  necessarily extend  to  reexamination  in respect of  any  other  matter needing  explanation  in  the  cross-examination  at  large. Thus, the accused cannot ask a single question of the nature

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 31  

of   cross-examination   but  because  he  sets   up   a   I contradiction’  in  the narrow sense,  the  prosecution  can range all over the previous 921 statement and afford the witness a chance of explaining  any matter  in his cross-examination by re-examining  him  which right  includes the possibility of asking leading  questions with the permission of the Court. Thus, the accused makes a I contradiction’ at his own peril. By making a single I contradiction’, the accused places  the entire statement in the hands of the prosecution to  explain away  everything  with its assistance.  One wonders  if  the legislature  intended such a result, for it is too  great  a price  for  the  accused  to pay  for  too  small  a  right. Fortunately,  that is not the meaning of s. 162 of the  Code of  Criminal Procedure, and it is not necessary to read  the word  " cross-examination " in the proviso in a sense  other than what it has. The right of both the accused and the prosecution is limited to  contradictions.  It involves cross. examination  by  the accused as to that contradiction within s. 145 of the Indian Evidence Act and reexamination in relation to the matters  I referred  to in the cross-examination of the witness’.   The prosecution cannot range at will to explain away every  dis- crepancy  but only such as the accused under his  right  has brought  to light.  In our opinion, reading the  section  in this way gives effect to every part and does not lead to the startling and, if we may say so, the absurd results which we have endeavoured to set out above. The  question  may  be asked, how is there to  be  a  cross- examination about a previous statement ? It is difficult  to illustrate   one’s   meaning  by  entering  into   such   an exposition.   Any  one interested to see  the  technique  is invited to read Mrs. Maybrick’s trial in the Notable English Trials  (1912) at pages 77-79, the trial of William  Palmer, pages 35,36, 50-51.  Examples will be found in every leading trial.   The question is, did the legislature intend  giving this right ? In our opinion, the legislature did and for the very  obvious  reason that it gave the  prosecution  also  a chance  to re-examine the witness, to explain I  any  matter referred to in the cross-examination of the witness. 116 922 We  respectfully  do not agree that the  section  should  be construed  in the way our learned brother has construed  it. Though we agree as to the result, our opinion cannot be left unexpressed.  If the section is construed too narrowly,  the right it confers will cease to be of any real protection  to the accused, and the danger of its becoming an impediment to effective  cross-examination  on behalf of  the  accused  is apparent. This brings us to the consideration of the questions,  which were asked and disallowed.  These were put during the cross- examination of Bankey, P. W. 30.  They are: Q.   Did  you  state to the investigating officer  that  the gang rolled the dead bodies of Nathi, Saktu and Bharat Singh and scrutinized them, and did you tell him that the face  of Asa Ram resembled that of the deceased Bharat Singh ? Q.   Did  you state to the investigating officer  about  the presence of the gas lantern ? These  questions  were defective, to start with.   They  did riot set up a contradiction but attempted to obtain from the witness a version of what he stated to the police, which  is then contradicted.  What is needed is to take the  statement of  the  police  as it is,  and  establish  a  contradiction

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 31  

between  that  statement and the evidence in Court.   To  do otherwise  is to transgress the bounds set by s. 162  which, by  its absolute prohibition, limits even  cross-examination to contradictions and no more.  The cross-examination cannot even   indirectly  subserve  any  other  purpose.   In   the questions with which we illustrated our meaning, the witness was  not asked what he stated to the police,. but  was  told what  he had stated to the police and asked to  explain  the omission.  It is to be borne in mind that the statement made to the police is I duly proved’ either earlier or even later to establish what the witness had then stated. In  our  opinion, the two questions were defective  for  the reasons  given  here,  and were properly  ruled  out,  even, though  all  the reasons given by the Court  may  not  stand scrutiny.  The matter was not followed up 923 with  proper questions, and it seems that similar  questions on these and other points were not put to the witness out of deference  (as  it is now suggested) to the  ruling  of  the Court.   The accused can only blame themselves, if they  did not. The  learned Judges of the High Court ruled out  from  their consideration that these two circumstances made it  possible for  the witnesses to recognise the accused, but  hold  that there was ample opportunity even otherwise for the witnesses to  do  so.  The High Court was justified in so  doing,  and there  being ample evidence on which they could come to  the conclusion  that the witnesses had, in fact, recognised  the accused,  it must inevitably be regarded as one of  fact  in regard to which this Court does not interfere. Since  no other point was argued, the appeal must fail,  and we agree that it be dismissed. Appeal dismissed.