Tahsildar Singh v. State of U.P. AIR 1959 SC 1012 - Section 145.

SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 1 Monday, January 16, 2023

Printed For: Sahil Dhingra, KIIT School of Law
SCC Online Web Edition: http://www.scconline.com
© 2023 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
1959 Supp (2) SCR 875 : AIR 1959 SC 1012 : 1959 Cri LJ 1231
In the Supreme Court of India

(BEFORE B.P. SINHA, SYED JAFFER I MAM, J.L. KAPUR, A.K. SARKAR, K. SUBBA
RAO AND M. HIDAYATULLAH, JJ.)
TAHSILDAR SINGH & ANOTHER … Appellants;

Versus
STATE OF U.P … Respondent.
Criminal Appeal No. 67 of 1958* , decided on May 5, 1959
Advocates who appeared in this case:
Jai Gopal Sethi, Senior Advocate, (R.L. Kohli, Advocate, with him),
for the Appellants;
S.P. Sinha, Senior Advocate, (G.C. Mathur & G.N. Dikshit, Advocates,
with him), for the Respondent.
The Judgment of the Court was delivered by
K. SUBBA RAO, J.— This appeal by special leave raises the question
of construction of Section 162 of the Code of Criminal Procedure. On 16
-6-1954, 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 firearms suddenly
appeared near a well situated on the southern side of the house of Ram
Sarup and opened fire which resulted in the death of Natthi, Bharat
Singh and Saktu, and injuries to six persons, namely, Nasari, Bankey,
Khem Singh, Bal Kishen, Misaji Lal and Nathu.
2. The topography of the locality where the incident took place is
given in the two site-plans, Ex. B-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 south-west of the
platform, about 25 paces away, is a well with a platform of 3 feet in
height and about 13 feet in width around it; and to the west of the
platform in front of Ram Sarup's house the audience were seated.
3. 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 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.
4. 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 organised the raid with a view to do away with
Asa Ram and Bankey.
5. 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 he 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 (PW 30), was in the witness box, the learned counsel for the
accused put to him the following two questions in cross-examination:
1. “Did you state to the investigating officer that the gang rolled
the dead bodies of Nathi, Saktu and Bharat Singh, and scrutinise
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. I,
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 CrPC 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 CrPC 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 omission in the statement made
under Section 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 PW 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
Section 374 of the Code of Criminal Procedure for the confirmation of
the sentence of death awarded to the appellants. The learned Judges of
the High Court, after reviewing the entire evidence over again, accepted
the findings of the learned Sessions Judge and confirmed the
convictions and sentences passed on the appellants. Before the High
Court a petition was filed by the appellants alleging that the learned
Sessions Judge did not allow the counsel for defence to put omissions
amounting to material contradictions to the eyewitnesses and therefore
the said eyewitnesses should be summoned so that the said questions
might be put to them. That petition was filed on 1-5-1957, and on 30-7
-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 learned 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,
hold that the accused 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 Sarup's platform and taking away
Bankey's gun from the cot, movements which brought them close to
the eyewitnesses and thereby gave the witnesses an unmistakable
opportunity of seeing their faces in the light of the lanterns and the
full moon. These factors made recognition by witnesses independent
of any gas lantern or any scrutiny of the dead bodies, so that these
matters ceased to be of any real consequence and therefore made
the summoning of the eyewitnesses before us quite unnecessary.”
In the result, they dismissed the appeals. The present appeal is by
special leave filed against the judgment of the High Court.
6. 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 Section 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 officer; 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 witnesses
whereas the advocate for the accused intended to put to the witnesses
many other omissions to establish that there was development in the
prosecution case from time to time but refrained from doing so in
obedience to the considered order made by the learned Sessions Judge.
(3) Even if only two questions were illegally disallowed, as it was not
possible to predicate the possible effect of the cross-examination of the
witnesses on the basis of their answers to the said questions on their
reliability, it should be held that the accused had no opportunity to
have an effective cross-examination of the witnesses and therefore 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.
7. The arguments of the learned counsel for the respondent in
respect of each of the said contentions will be considered in their
appropriate places.
8. 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)
9. Diverse and conflicting views were expressed by courts on the
interpretation of Section 162 of the Code of Criminal Procedure. A
historic retrospective 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 10-8-1955, and by notification

issued by the Central Government its provisions came into force on and
from 1-1-1956. 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.
10. In Act 10 of 1872 the section corresponding to the present
Section 162 was Section 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 Section 119 into two sections and
numbered them as Sections 161 and 162, which read:
“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.
“162. No statement, other than a dying declaration, made by any
person to a police officer in the course of an investigation under this
chapter shall, if reduced to writing, be signed by the person making
it, or be used as evidence against the accused.
Nothing in this section shall be deemed to affect the provisions of
Section 27 of the Indian Evidence Act, 1872.”
The first two paragraphs of Section 119 of Act 10 of 1872 with slight
modifications not relevant for the present purpose constituted the
corresponding paragraphs of Section 161 of Act 10 of 1882; and the
third paragraph of Section 119 of the former Act, with some changes,
was made Section 162 of the latter Act. There was not much difference
between the third paragraph of Section 119 of the Act of 1872 and
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Section 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 Section 27 of the Indian Evidence Act, 1872.
The Code of 1898 did not make any change in Section 161, nor did it
introduce any substantial change in the body of Section 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 Section 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 Section 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
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 them to impeach the credit of a
witness in the manner provided by the Indian Evidence Act. On the
basis of the terms of Section 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 Section 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 taken away by Section 162 of the
Code of Criminal Procedure which only provided that the writing shall
not be used as evidence. On the other hand it was contended on behalf
of the accused that when the statement of a witness was admittedly
-----------------------------------------------------------------------------------------------------------------------------------------------------------
reduced into writing, it would be unreasonable to allow any oral

evidence of the statement to be given when the writing containing the
statement could not be proved. The judgment of Hosain, J. in the case
of Rustam v. King Emperor1 and the decisions in Fanindra Nath
Banerjee v. Emperor2 , King Emperor v. Nilakanta3 and
Muthukumaraswami Pillai v. King Emperor represent one side of the
4
question, and the judgment of Knox, J. in Rustam v. King Emperor1 and

the observations of Beaman, J. in Emperor v. Narayan5 represent the
other side. A Division Bench of the Bombay High Court in Emperor v.
Hanmaraddi Bin Ramaraddi6 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:
“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 re-
examination 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 therefor) 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 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 Section 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 vas 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 Section 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 Section 145 or under Section 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 witness in the manner provided by
Section 145 of the Evidence Act. By Act 2 of 1945, the following sub-
section (3) was added to Section 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 sub-section 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 precis of what each witness said. It is not necessary to
notice in detail the changes made in Section 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 under the Act as it stood before that amendment.
11. It is, therefore, seen that the object of the legislature throughout
has been to exclude the statement of a witness made before the police
during the investigation from being made use of at the trial for any
purpose, and the amendments made from time to time were only
intended to make clear the said object and to dispel the cloud cast on
such intention. The Act of 1898 for the first time introduced an
exception enabling the said statement reduced to writing to be used for
impeaching the credit of the witness in the manner provided by the
Evidence Act. As the phraseology of the exception lent scope to defeat
the purpose of the legislature, by the Amendment Act of 1923, the
section was redrafted defining the limits of the exception with precision
so as to confine it only to contradict the witness in the manner provided
under Section 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.
12. Braund, J. in Emperor v. Aftab Mohd. Khan7 gave the purpose of
Section 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. Emperor8 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

overzealous police officers and untruthful witnesses.”
The Judicial Committee in Pakala Narayana Swami v. King Emperor9
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 manner which we will
indicate at the later stage of the judgment, clearly achieves the said
objects.
13. The learned counsel's first argument is based upon the words “in
the manner provided by Section 145 of the Indian Evidence Act, 1872”
found in Section 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 Shyam Singh v.
State of Punjab10 . Bose, J. describes the procedure to be followed to
contradict a witness under Section 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 these 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 Section 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 Section 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 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 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 Section 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 Section 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 Section 145
of the Evidence Act. Nor are we impressed by the argument that it
would not be possible to invoke the second part of Section 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
Section 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 had stated that D stabbed C. His attention can
be drawn to that part of the statement made before the police which
contradicts his statement in the witness box. If he admits his previous
statement, no further proof is necessary; if he does not admit, the
practice generally followed is to admit it subject to proof by the police
officer. On the other hand, the procedure suggested by the learned
counsel may be illustrated thus : If the witness is asked “did you say
before the police officer that you saw a gas light?” and he answers
“yes”, then the statement which does not contain such recital is put to
him as contradiction. This procedure involves two fallacies : one is it
enables the accused to elicit by a process of cross-examination what
the witness stated before the police officer. If a police officer did not
make a record of a witness's statement, his entire statement could not
be used for any purpose, whereas if a police officer recorded a few
sentences, by this process of cross-examination, the witness's oral
statement could be brought on record. This procedure, therefore,
contravenes the express provision of Section 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 Section 145 of the Evidence Act is, therefore, not of
-----------------------------------------------------------------------------------------------------------------------------------------------------------
any relevance in considering the express provisions of Section 162 of

the Code of Criminal Procedure.
14. This leads us to the main question in the case i.e. the
interpretation of Section 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.
15. As the words in the section declare the intention of the
legislature, we shall now proceed to construe the section giving the
words used therein their natural and ordinary sense.
16. 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 Section 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 state 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 babel of voices
raised all round. In such an atmosphere, unlike that in a court of law,
he is expected to hear the statements of witnesses and record
separately the statement of each one of them. Generally he records
only a summary of the laments 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.

17. 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 upon it
for a limited purpose of contradicting a witness in the manner provided
by Section 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.
18. If the provisions of the section are construed in the aforesaid
background, much of the difficulty raised disappears. Looking at the
express words used in the 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 that when he entered the room, he saw
‘A’ shooting ‘B’ dead with a gun; on another occasion the same person
says that when he entered the room he saw ‘C’ stabbing ‘B’ dead : both
the statements obviously cannot stand together, for, if the first
statement is true, the second is false and vice versa. The doctrine of
-----------------------------------------------------------------------------------------------------------------------------------------------------------
recital by necessary implication, the concept of the negative or the

positive aspect of the same recital, and the principle of inherent
repugnancy, may in one sense rest on omissions, but, by construction,
the said omissions must be deemed to be part of the statement in
writing. Such omissions are not really omissions strictly so called and
the statement must be deemed to contain them by implication. A
statement, therefore, in our view, not only includes what is expressly
stated therein, but also what is necessarily implied therefrom.
19. “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
coexist, it may be said that one contradicts the other.
20. 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 Section 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 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.
21. 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.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
22. As Section 162 of the Code Criminal Procedure enables the

prosecution in the re-examination 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 re-examine the witness in regard to any matter
referred to in his cross-examination, whether it amounts to a
contradiction or not. I do not think there is any anomaly in the
situation. Section 145 of the Evidence Act deals with cross-examination
in respect of a previous statement made by the witness. One of the
modes of cross-examination is by contradicting the witness by referring
him to those parts of the writing which are inconsistent with his present
evidence. Section 162, while confining the right to the accused to cross
-examine the witness in the said manner, enables the prosecution to re
-examine the witness to explain 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 Section 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.
23. 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 Ponnuswami Chetty11 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 Section 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
Section 162 of the Code that he saw three persons beating a man and
later 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 Vannan12 . 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. Emperor11 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 base omission can never be a contradiction,
a so-called omission in a statement may sometimes amount to a
contradiction, for example, when to the police three persons are
stated to have been the criminals and later at the trial four are
mentioned.”
The Allahabad High Court in Ram Bali v. State13 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 Section 162 CrPC. A statement recorded by the
police under Section 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
Section 162 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 162 and the
latter can be used to contradict the former. But if he had not stated
under Section 162 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 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 Vannan12 . The Patna
High Court in Badri Chaudhry v. King Emperor14 expressed a similar
view. At p. 22, Macpherson, J. analysing Section 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 Section 145 of the 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.”
In Sakhawat v. Crown15 much to the same effect was stated at p. 284:
“The section (Section 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, on purely
hypothetical considerations. The same idea in a slightly different
language was expressed by Bhargava and Sahai, J.J. in Rudder v.
State16 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 arc 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. Emperor17 , Yusuf Mia
v. Emperor18 , and State of M.P. v. Banshilal Beharz19 . 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 Section 162 of the Code of
Criminal Procedure. In America, there is no provision similar to Section
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 textbook made in a different context.
24. 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 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.
25. 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 he 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 statement before the
police that A after stabbing B ran away by a northern lane, but in the
court he says that immediately 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.
26. The aforesaid examples are not intended to be exhaustive but
only illustrative. The same instance may fall under one or more heads.
It is for the trial Judge to decide in each case, after comparing the part
or parts of the statement recorded by the police with that made in the
witness box, to give a ruling, having regard to the aforesaid principles,
-----------------------------------------------------------------------------------------------------------------------------------------------------------
whether the recital intended to be used for contradiction satisfies the

requirements of law.
27. 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 PW
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 PW 30 or to the
other witnesses that followed him. The said omissions to 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 PW 30 and no other
omissions were put to him or any other witness, and that indeed the
order 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 his 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
eyewitnesses 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 eyewitnesses if they were summoned. That application was
filed on 1-5-1957, 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 30-7-1957 i.e. 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 11-9-1957. The judgment of the learned Judges of the
High Court clearly indicates that what was argued before then was that
two omissions sought to be put to PW 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 two circumstances and based
their findings on matters of greater certainly. 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 oversight 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
Section 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 Section 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 PW 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 show any law
entitling him to put the said questions. Though the witness was
examined at some length, no other alleged omissions in 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 PW 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 so. 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 PW 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
PW 30 and were intended to be put to the other witnesses, but were
not. so done on the basis of the ruling given by the court.
28. 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 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 coexist, 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 appellants 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 scrutinized the dead bodies. The
alleged omission does not satisfy any of the principles stated by us.
29. 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 Section 162 of the Code of Criminal Procedure,

the appellants were in any way prejudiced in the matter of their trial.
30. 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. 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 information report to discredit the witnesses for the simple
reason that they accepted the evidence in spite of some omissions in
the first information report.
31. In the result, we confirm the judgment of the High Court and
dismiss the appeal.
M. HIDAYATULLAH, J.— The judgment which I am delivering has
been prepared by my learned Brother, Imam, J. and myself.
33. We agree that the appeal be dismissed but would express in our
own words the grounds upon which it should be dismissed.
34. 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 Section 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
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.
35. 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.
36. 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 Section 162 of the Code of Criminal
Procedure or of the Indian Evidence Act, or even of the rules of natural
justice.
37. Johari Chowkidar had reported the occurrence to the police
station, which was a brief statement. Certain matters were, however,
definitely mentioned — the names of the persons recognised in the
occurrence, the number of persons killed and injured, the taking away
of a gun which was with Bharat Singh, Bankey Kumhar firing his gun at
the culprits in such a manner that some of them must have been
injured, and the existence of light from the moon and lantern. The
principal comment had been that in this report there was no mention of
the culprits having advanced from the well towards the open place
where villagers had gathered to hear the music. On the contrary, the
first information report indicated that the firing was done from the
parapet of the well. It is clear, however, from Johari's statement that
the culprits had taken away the gun which was with Bharat Singh. This
could only have been done if the culprits had advanced from the well to
the place where the villagers had assembled.
38. 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. Johari 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'a
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 gaslight. 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 has 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
gaslight. 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 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.
39. 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.
40. 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 Section
162 of the Code of Criminal Procedure should be construed, it becomes
necessary to consider the submissions of the learned counsel for the
appellants.
41. The provisions of the Code of Criminal Procedure of 1861 and
1872 have been referred to by our learned Brother, Subba Rao, J.
Section 162 of the Code of 1872 made it clear that except for a dying
declaration and matters coming within the provisions of Section 27 of
the Indian Evidence Act of 1872, no statement of any person made to a
-----------------------------------------------------------------------------------------------------------------------------------------------------------
police officer in the course of investigation, if reduced into writing,

could be used as evidence against the accused. There was no restriction
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 Section 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 statement 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 of his right of
cross-examination. As Section 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 Sections 145 and 155 of that Act. The manner in
which the provisions of these sections could be utilised 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 Section 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 Section 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
Section 145 of the Indian Evidence Act.
42. The provisions of Section 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 Section 162 of
the Code of 1898 had been variously construed, and the amendment in
-----------------------------------------------------------------------------------------------------------------------------------------------------------
1923 has not improved matters. The amended section still remains
difficult to construe. We shall endeavour now to construe it.
43. Under Section 161 of the Code, the police officer may examine
orally any person supposed to be acquainted with the facts and
circumstances of the case. He may also reduce into writing any
statement made to him in the course of such examination, and if he
does so, he must make a separate record of the statement of each such
person.
44. 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
section) at the inquiry or trial in respect of any offence under
investigation at the time such statement is made. The object here is
not easily discernible, but perhaps is to discourage overzealous 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 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.
45. 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 Section 145 of the Indian
Evidence Act. It also gives a right to the prosecution to use the
statement for purposes of re-examination of the same witness but only
to explain any matter referred to in the cross-examination of the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
witness.
46. 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
Section 145 of the Indian Evidence Act.
If the accused exercises the right in (v) above in any instance, then the
prosecution has the right to use the statement in the re-examination of
the witness but only to explain any matters referred to by him in cross-
examination.
47. Section 145 of the Indian Evidence Act reads:
“Cross-examination as to previous statements in writing.— A
witness may be cross-examined as to previous statements made by
him in writing or reduced into writing, and relevant to matters in
question, without such writing being shown to him, or being proved;
but, if it is intended to contradict him by the writing, his attention
must, before the writing can be proved, be called to those parts of it
which are to be used for the purpose of contradicting him.”
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.
48. 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 Section
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 profound respect) that the accused
is not entitled to cross-examine but only to contradict. In our opinion,
the reference to Section 148 of the Indian Evidence Act brings in the
whole of the manner and machinery of Section 145 and not merely the
second part. In this process, of course, the accused cannot go beyond
Section 162 or ignore what the section prohibits but cross-examination
to establish a contradiction between one statement and another is
certainly permissible.
49. This question loses much of its importance when 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.
50. What Section 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
Section 162 of the Code of Criminal Procedure. When some omissions
occur, there is contradiction in one sense but not necessarily on a
relevant matter. The statements of witnesses may and do comprise
numerous facts and circumstances, and it happens that when they are
asked to narrate their version over again, they omit some and add
others. What use can be made of such omissions or additions is for the
accused to decide, but it cannot be doubted that some of the omissions
or additions may have a vital bearing upon the truth of the story given.
We do not think that by enacting Section 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 “re-examination” and “cross-
examination” in the same proviso shows that cross-examination is
contemplated or in other words, that the manner of contradiction under
Section 145 of the Indian Evidence Act comprises both cross-
examination and contradiction. Indeed, the second part is only the final
stage of the contradiction, which includes the earlier stages. Re-
examination is only permissible where there is cross-examination.
51. 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 Section 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 today?
A. No. I saw both the events.
Q. If that is so, why is your statement to the police silent as to
stabbing?
A. 1 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 can 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 Section 162 of the Code of Criminal
Procedure, because they do not set up 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 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.
52. 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; to go counter to, go against” as also “to
-----------------------------------------------------------------------------------------------------------------------------------------------------------
affirm the contrary of; to declare untrue or erroneous; to deny

categorically” and the word “contradiction” to mean “A state or
condition of opposition in things compared; variance; inconsistency,
contrariety”. In Shorter Oxford English Dictionary, “contradict” is said to
mean “To speak against; to oppose in speech; to forbid; to oppose; to
affirm the contrary of; to declare untrue or erroneous; to deny; to be
contrary to; 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 Section 162 and questions in cross-
examination can be put with respect to it in order 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 Section 145 of the Evidence Act
must carry the same meaning as the words “to contradict such witness”
in Section 162 of the Code. In a civil suit, where the provisions of
Section 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 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.
53. We pause to look at the matter from another angle. We shall
assume that the interpretation which the State claims should be put
upon Section 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 re-
examination not only to explain the “contradiction” but also to explain
any matter referred to in the cross-examination of the witness.
54. If “contradiction” does not include the right of cross-
examination, the right of the prosecution must necessarily extend to re-
examination in respect of any other matter needing explanation in the
cross-examination at large. Thus, the accused cannot ask a single
question of the nature of cross-examination but because he sets up a
“contradiction” in the narrow sense, the prosecution can range all over
the previous 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.
55. Thus, the accused makes a “contradiction” at his own peril. By
making a single “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 Section 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.
56. 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 Section 145 of the Indian Evidence Act and re-
examination in relation to the matters “referred to in the cross-
examination of the witness”. The prosecution cannot range at will to
explain away every discrepancy 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.
57. 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 p. 77-79, the trial of William Palmer p.
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 “any
-----------------------------------------------------------------------------------------------------------------------------------------------------------
matter referred to in the cross-examination of the witness”.

58. 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 in
apparent.
59. This brings us to the consideration of the questions, which were
asked and disallowed. These were put during the cross-examination of
Bankey, PW 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 not set up a
contradiction but attempted to obtain from the witness a version of
what he stated to the police, which is then contradicted. What is
needed is to take the statement of the police as it is, and establish a
contradiction between that statement and the evidence in court. To do
otherwise is to transgress the bounds set by Section 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 “duly proved” either earlier or even later to establish what the
witness had then stated.”
60. 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 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.
61. 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 held 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.
62. Since no other point was argued, the appeal must fail, and we
agree that it be dismissed.
———
*
Appeal by Special Leave from the Judgment and Order dated the 11th September 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 the 8th September 1956 of the Court of
the Additional Sessions Judge at Etawah in Sessions Trial Nos. 83 and 109 of 1955.
1 (1910) 7 ALJ 468
2 (1908) 36 Cal. 281
3
(1912) 35 Mad 247
4 (1912) 35 Mad 397
5 (1907) 32 Bom 111
6 (1915) 39 Bom 58
7 AIR (1940) All 291
8
AIR (1945) Nag 1
9 (1939) LR 66 IA 66
10 (1952) 1 SCC 514 : (1952) SCR 812
11
(1933) ILR 56 Mad 475
12 ILR (1944) Mad 897
13 AIR (1952) All 289
14
AIR (1926) Pat 20
15 ILR (1937) Nag. 277
16 AIR (1957) All 239
17
AIR (1932) Lah. 103
18 AIR (1938) Pat. 579
19 AIR (1958) M.P. 13
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/
regulation/ circular/ notification is being circulated on the condition and understanding that the publisher would not be
liable in any manner by reason of any mistake or omission or for any action taken or omitted to be taken or advice
rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/ notification. All
disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The authenticity of
this text must be verified from the original source.

Tahsildar Singh v. State of U.P. AIR 1959 SC 1012 - Section 145.

Uploaded by

Copyright:

Available Formats

Tahsildar Singh v. State of U.P. AIR 1959 SC 1012 - Section 145.

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Tahsildar Singh v. State of U.P. AIR 1959 SC 1012 - Section 145.

Uploaded by

Copyright:

Available Formats

SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.

Page 1 Monday, January 16, 2023

In the Supreme Court of India

TAHSILDAR SINGH & ANOTHER … Appellants;

put in the cross-examination either to PW 30 or to any other witness.

and under the latter section, the whole vista of cross-examination on

received the assent of the President on 10-8-1955, and by notification

reduced into writing, it would be unreasonable to allow any oral

question, and the judgment of Knox, J. in Rustam v. King Emperor1 and

Sub-section (1) of the substituted section attempted to steer clear of

officers of taking a condensed version of the statements of all the

“The object of the section is to protect the accused both against

The procedure prescribed is that, if it is intended to contradict a witness

any relevance in considering the express provisions of Section 162 of

by him that it is a correct statement.

recital by necessary implication, the concept of the negative or the

22. As Section 162 of the Code Criminal Procedure enables the

be confronted with the unwritten record of an unmade statement’.”

whether the recital intended to be used for contradiction satisfies the

within the meaning of Section 162 of the Code of Criminal Procedure,

police officer in the course of investigation, if reduced into writing,

contradicting. This may arise, because of there being a contrary

which of the two versions is an authentic one of the events as seen by

affirm the contrary of; to declare untrue or erroneous; to deny

can be brought to the witness's notice and his explanation, if any,

matter referred to in the cross-examination of the witness”.

recognised the accused, it must inevitably be regarded as one of fact in

1 (1910) 7 ALJ 468

2 (1908) 36 Cal. 281

4 (1912) 35 Mad 397

5 (1907) 32 Bom 111

7 AIR (1940) All 291

10 (1952) 1 SCC 514 : (1952) SCR 812

12 ILR (1944) Mad 897

13 AIR (1952) All 289

15 ILR (1937) Nag. 277

16 AIR (1957) All 239

18 AIR (1938) Pat. 579

19 AIR (1958) M.P. 13

You might also like