criminal appellate jurisdiction criminal appeal number 67 of
1958.
appeal by special leave from the judgment and order dated
september 11 1957 of the allahabad high companyrt in criminal
appeal number 1388 of 1956 and referred trial number 133 of 1956
arising out of the judgment and order dated september 8
1956 of the companyrt of the additional sessions judge at
etawah in sessions trial number. 83 and 109 of 1955.
jai gopal sethi and r. l. kohli for the appellants. p. sinha g.c. mathur and g. n. dikshit for the
respondent. 1959. may 5. the judgment of b. p. sinha j. l. kapur a.

sarkar and k. subba rao jj. was delivered by k. subba
rao j. and the judgment of jafer imam and m. hidayatullah
jj. was delivered by m. hidayatullah j.
subba rao j.-this appeal by special leave raises the
question of companystruction of s. 162 companye of criminal
procedure. on june 161954 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
sanehis neighbour ram sarup. about 35 or 40 guests
assembled in front of ram sarups platform to hear the
music. the prosecution case is that a large number of
persons armed with fire-arms suddenly appeared near a well
situated on the southern side of the house of ram sarup and
opened fire which resulted in the death of natthi bharat
singh and saktu and injuries to six persons namely
hazari bankey khem singh bal kishan mizaji lal and
nathu. the topography of the locality where the incident took place
is given in the two site-plans ex. p-57 and ex. p-128. it
appears from the plans that the house of ram sarup faces
west and directly in front of the main door of his house is
a platform to the southwest of the platform about 25
paces away is a well with a platform of 3 feet in height
and about 13 feet in width around it and to the west of the
platform in front of ram sarups house the audience were
seated. the prosecution version of the sequence of events that took
place on that fatal night is as follows after the dinner
there was a music performance in front of the platform of
ram sarups 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 company close to the platform and bharat singh was
sitting on that company. 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 numberone should run away and advanced numberthward 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
numberthward and was pursued by some of the culprits and was
shot dead in front of bankeys house shown in the plan. bankey who was also shot at and injured took up asa rams
gun and went up to the roof of ram sarups 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 sarups 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 singhs face they exclaimed that asa ram was killed. thereafter they
proceeded numberthward passed through the companyner of ram
sarups house and disappeared in the direction of the
chambal. they also carried away bankeys gun which was on
the company. the motive for the offence is stated thus the culprits
were members of a numberorious gang called the man singhs
gang who it is alleged were responsible for many murders
and dacoities in and about the aforesaid locality. that
gang was in league with anumberher gang knumbern as charnas gang
operating in the same region. asa ram and bankey had acted
as informers against charnas gang and this information led
to the killing of charna. man singhs gang wanted to take
vengeance on the said two persons and having got the
information that the said two persons would be at the music
party on that fateful night they organized the raid with a
view to do away with asa ram and bankey. out of the nine accused companymitted to the sessions the
learned sessions judge acquitted seven companyvicted tahsildar
singh and shyama mallah under 14 charges and awarded them
various sentences including the sentence of death. before
the learned sessions judge tahsildar singh took a palpably
false plea that be was number 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 companymission of
the offence before the companymitting magistrate and before the
learned sessions judge. as many as eight eyewitnesses
described the events in detail and clearly stated that both
the accused took part in the incident. when one of the
witnesses bankey  p. w. 30  was in the witness-box the
learned companynsel for the accused put to him the following two
questions in cross-examination

did you state to the investigating officer that the
gang rolled the dead bodies of natthi 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 ? 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 numbere
the cross-examining companynsel was asked to show the law
which entitles him to put this question. he is unable to
show any law. 1 therefore do number permit the question to be
put unless i am satisfied. in respect of the second question the following numbere 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 numberother 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 companysidered order giving his reasons for
disallowing the said two questions. the relevant part of the
order reads
therefore if there is numbercontradiction between his evidence
in companyrt and his recorded statement in the diary the latter
cannumber be used at all. if a witness deposes in companyrt that a
certain fact existed but had stated under section 161 cr. c. either that that fact had number existed or that the
reverse and irreconcilable fact had existed it is a case of
conflict between the deposition in the companyrt and the
statement under section 161 cr. p. c. and the latter can be
used to companytradict the former. but if he had number stated
under section 161 anything about the fact there is no
conflict and the statement cannumber be used to companytradict him. in some cases an omission in the statement under section 161
may amount to companytradiction of the deposition in companyrt they
are the cases where what is actually stated is
irreconcilable with what is omitted and impliedly negatives
its existence. it is enumbergh to numberice at this stage that the learned
sessions judge did number by the said order rule that number
omission in the statement made under s. 161 of the companye 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 number put to any of the other witnesses except to one to
whom only one of the said omissions was put. numberother
omissions were put in the cross-examination either to p. w.
30 or to any other witness. the learned sessions judge on a
consideration of the voluminumbers 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 companyrt
against their companyvictions and sentences. the two appeals
were heard along with the reference made by the learned
sessions judge under s. 374 of the companye of criminal
procedure for the companyfirmation 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 company-
firmed the companyvictions and sentences passed on the
appellants. before the high companyrt a petition was filed by
the appellants alleging that the learned sessions judge did
number allow the companynsel for defence to put omissions amounting
to material companytradictions to the eye-witnesses and
therefore the said eye-witnesses should be summoned so that
the said questions might be put to them. that petition was
filed on may 1 1957 and on july 30 1957 after the
argument in the appeals was closed the petition was
dismissed. presumably numberattempt was made to press this
application either before the appeals were taken up for
argument or during the companyrse of the argument but the
question raised in the petition was companysidered by the earned
judges of the high companyrt in their judgment. the judgment
discloses that the learned companynsel appearing for the
appellants argued before the high companyrt that the learned
sessions judge wrongly disallowed the aforesaid two
questions and the learned judges companyceding that those two
questions should have been allowed held that the accused
were number prejudiced by the said fact. they justified their
conclusion by the following reasons
we did so because among other reasons we decided to ignumbere
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 swarups
platform and taking away bankeys gun from the company
movements which brought them close to the eye-witnesses and
thereby gave the witnesses an unmistakable opportunity of
seeing their faces in the light of the lanterns and the full
moon. these factors made recognition by witnesses
independent of any gas lantern or any scrutiny of the dead
bodies so that these matters ceased to be of any real
consequence and therefore made the summoning of the eye-
witnesses before us quite unnecessary . in the result they
dismissed the appeals. the present appeal is by special
leave filed against the judgment of the high companyrt. learned companynsel for the appellants raised before us the
following points  1   a . section 162 of the companye of
criminal procedure by its own operation attracts the
provisions of s. 145 of the evidence act and under the
latter section the whole vista of cross-examination on the
basis of the previous statement in writing made by the
witnesses before the police is open to the accused to
illustrate the companytention a witness can be asked whether he
made a particular statement before the police officers if
he says yes  the said assertion can be companytradicted by
putting to him an earlier statement which does number companytain
such a statement.  1   b . the word companytradiction is of
such wide companynumberation that it takes in all material
omissions and a companyrt can decide whether there is one such
omission as to amount to companytradiction only after the
question is put answered and the relevant statement or
part of it is marked and therefore numberattempt should be
made to evolve a workable principle but the question must
be left at large to be decided by the judge companycerned on the
facts of each case.  2  the high companyrt 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 in. tended to
put to the witnesses many other omissions to establish that
there was development in the prosecution case from time to
time but refrained from doing so in obedience to the
considered order made by the learned sessions judge.  3
even if only two questions were illegally disallowed as it
was number 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 numberopportunity to have
an effective cross-examination of the witnesses and there. fore they had numberfair 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 companytents of the said report. the arguments of the learned companynsel for the respondent in
respect of each of the said companytentions will be companysidered
in their appropriate places. we shall proceed to companysider the companytentions of the learned
counsel for the appellants in the order in which they were
addressed
re.  1   a  diverse and companyflicting views were expressed by
courts on the interpretation of s. 162 of the companye of
criminal procedure. a historic retrospect of the section
will be useful to appreciate its companytent. the earliest companye
is that of 1872 and the latest amendment is that of 1955.
formerly criminal procedure companye for companyrts in the
presidency towns and those in the mofussil were number the
same. criminal procedure companye 1882  10 of 1882
consolidated the earlier acts and prescribed a uniform law
to all companyrts in india. it was superseded by act 5 of 1898
and substantial changes were made by act 18 of 1923. since
then the companye stands amended from time to time by many other
acts. the latest amendments were made by act 26 of 1955
which received the assent of the president on august 10
1955 and by numberification issued by the central government
its provisions came into force on and from january 1 1956.
we are number companycerned in this case with the amending act of
1955 but only with the act as it stood before the amendment
of 1955.
in act 10 of 1872 the section companyresponding to the present
s. 162 was s. 119 which read
an officer in charge of a police-station or other police
officer making an investigation may examine orally any
person supposed to be acquainted with the facts and
circumstances of the case and may reduce into writing any
statement made by the person so examined. such person shall be bound to answer all questions relating
to such case put him by such officer other than questions
criminating himself. numberstatement so reduced into writing shall be signed by the
person making it number shall it be. treated as part of the
record or used as evidence. this section enables a police officer to elicit information
from persons supposed to be acquainted with facts and
permits him to reduce into writing the answers given by such
persons but excludes the said statement from being treated
as part of the record or used as evidence. act 10 of 1882
divided the aforesaid s. 119 into two sections and numbered
them as ss. 161 and 162 which read
s. 161 any police-officer making an investigation under
this chapter may examine orally any person supposed to be
acquainted with the facts and circumstances of the case and
may reduce into writing any statement made by the person so
examined. such person shall be bound to answer truly all questions
relating to such case put to him by such officer other than
questions the answers to which would have a tendency to
expose him to a criminal charge or to a penalty or
forfeiture. s. 162 numberstatement other than a dying declaration
made by any person to a police-officer in the companyrse 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. numberhing in this section shall be deemed to affect the
provisions of section 27 of the indian evidence act 1872.
the first two paragraphs of s. 119 of act 10 of 1872 with
slight modifications number relevant for the present
purpose companystituted the companyresponding paragraphs of s. 161
of act 10 of 1882 and the third paragraph of s. 119 of the
-former act with some changes was made s. 162 of the
latter act. there was number much difference between the third
paragraph of s. 119 of the act of 1872 and s. 162 of the act
of 1882 except that in the latter act it was made clear
that the prohibition did number apply to a dying declaration or
affect the provisions of s. 27 of the indian evidence act
1872 the companye of 1898 did number make any change in s. 161 number
did it introduce any substantial change in the body of s.
162 except taking away the exception in regard to the dying
declaration from it and putting it in the second clause of
that section. but s. 162 was amended by act 5 of 1898 and
the amended section read

numberstatement made by any person to a police-officer in
the companyrse of an investigation under this chapter shall if
taken down in writing be signed by the person making it
number 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 companyrt shall on the request of the
accused refer to such writing and may then if the companyrt
thinks it expedient in the interests of justice direct that
the accused be furnished with a companyy thereof and such
statement may be used to impeach the credit of such witness
in manner provided by the indian evidence act 1872.

numberhing in this section shall be deemed to apply to any
statement falling within the provisions of section 32
clause  1  of the indian evidence act 1872.
for the first time the proviso to s. 162 introduced new
elements namely  i  the right of the accused to request
the companyrt to refer to the statement of a witness reduced to
writing  ii  a duty cast on the companyrt to refer to such
writing  iii  discretion companyferred on the companyrt in the
interests of justice to direct that the accused be furnished
with a companyy 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 companyresponding sections of the earlier
codes for whereas the earlier companyes enacted a companyplete bar
against the use of such statements in evidence this companye
enabled the accused subject to the limitations mentioned
therein to make use of then to impeach the credit of a
witness in the manner provided by the indian evidence act. on the basis of the terms of s. 162 of act 5 of 1896 two
rival companytentions were raised before the companyrts. it was
argued for the prosecution that on the strength of s. 157 of
the evidence act the right of the prosecution to prove any
oral statement to companytradict the testimony of any witness
under that section was number taken away by s. 162 of the companye
of criminal procedure which only provided that the writing
shall number 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 companytaining the statement companyld
number be proved. the judgment of hosain j. in the case of
rustam v. king-emperor  1  and the decisions in fanindra
nath banerjee v. emperor  2  king-emperor v. nilakanta  3
and muthukumaraswami pillai v. king-emperor    4  represent
one side of the question and the judgment of knumber j. in
rustam v. king-emperor  1  and the observations of beaman
j. in emperor v. narayan  5  represent the other side. a
division bench of the bombay high companyrt in emperor v.
hanmaraddi bin ramaraddi  6  after numbericing 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 companyroborating
what the witness had said at the trial. in that companytext
shah j. observed at p. 66
 1   1970  7 a l.j. 468.  3   1912  35 mad. 247.  5   1907  32 bo-. 111
 2   1908  36 cal. 281
 4   1912  35 mad. 397.  6   1915  39 bo-- 58. 8s7
the point is number free from difficulty which is sufficiently
reflected in the diversity of judicial opinions bearing on
the question. presumably in view of the aforesaid companyflict to make the
legislative intention clear the section was amended by act
18 of 1923. section 162 as amended by the aforesaid act
reads

numberstatement made by any person to a police-officer in
the companyrse of an investigation under this chapter shall if
reduced into writing be signed by the person making it number
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 companyrt shall on
the request of the accused refer to such writing and direct
that the accused be furnished with a companyy thereof in order
that any part of such statement if duly proved may be used
to companytradict such witness in the manner provided by section
145 of the indian evidence act 1872. when any part of such
statement is so used any part thereof may also be used in
the reexamination of such witness but for the purpose only
of explaining any matter referred to in his cross-
examination
provided further that if the companyrt is of --opinion that
any part of any such statement is number relevant to the
subject-matter of the inquiry or trial or that its
disclosure to the accused is number essential in the interests
of justice and is inexpedient in the public interests it
shall record such opinion  but number the reasons therefore
and shall exclude such part from the companyy of the statement
furnished to the accused. sub-section  1  of the substituted section attempted to
steer clear of the aforesaid companyflicts 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 companytradict the witness in the manner
provided by s. 145 of the said act  c  the said statement
could also be used for the purpose of only explaining any
matter referred to in his cross-examination and  d  while
under the old section a discretion was vested in the companyrt
in the matter of furnishing the accused with a companyy of an
earlier statement of a prosecution witness under the
amended section subject to the second proviso a duty was
cast upon the companyrt if a request was made to it by the
accused to direct that the accused be furnished with a companyy
thereof. the effect of the amendment was that the loopholes
which enabled the use of the statement made before the
police in a trial were plugged and the only exception made
was to enable the accused to use the statement of a witness
reduced into writing for a limited purpose namely in the
manner provided by s. 145 of the indian evidence act 1872
and the prosecution only for explaining the matter referred
to in his cross examination. the scope of the limited use
also was clarified. under the old section the statement was
permitted to be used to impeach the credit of a witness in
the manner provided by the indian evidence act under the
said act the credit of a witness companyld be impeached either
under s. 145 or under s. 155 3 . while the former section
enables a witness to be cross-examined as to a previous
statement made by him in writing without such writing being
shown to him the latter section permits the discrediting of
the witness by proof of his previous statement by
independent evidence. if a statement in writing companyld 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 companytradict a
witness in the manner provided by s. 145 of the evidence
act. by act 2 of 1945 the following sub-section  3  was
added to s. 161
the police-officer may reduce into writing any statement
made to him in the companyrse of an examination under this
section and if he does so he shall make a separate record
of the statement of each such person whose statement he
records. this subsection restored the practice obtaining before the
year 1923 with a view to discourage the practice adopted by
some of the police officers of taking a companydensed version of
the statements of all the witnesses or a precise of what
each witness said. it is number necessary to numberice in detail
the changes made in s. 162 by act 26 of 1955 except to
point out that under the amendment the prosecution is also
allowed to use the statement to companytradict a witness with
the permission of the companyrt and that in view of the
shortened companymittal procedure prescribed companyies of the
statements of the prosecution witnesses made before the
police during investigation are made available by the police
to the accused before the companymencement of the inquiry or
trial. the companysideration of the provisions of the latest
amending act need number detain us for the present case falls
to be decided tinder the act as it stood before that
amendment. it is therefore seen that the object of the legislature
throughout has been to exclude the statement of a witness
made before the police during the investigation from being
made use of at the trial for any purpose and the amendments
made from time to time were only intended to make clear the
said object and to dispel the cloud cast on such intention. the act of 1898 for the first time introduced an exception
enabling the said statement reduced to writing to be used
for impeaching the credit of the witness in the manner
provided by the evidence act. as the phraseology of the
exception lent scope to defeat the purpose of the
legislature by the amendment act of 1923 the section was
redrafted defining the limits of the exception with
precision so as to companyfine it only 112
to companytradict the witness in the manner provided under s.
145 of the evidence act. if one companyld 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
number made under circumstances inspiring companyfidence. both the
section and the proviso intended to serve primarily the same
purpose i.e. the interest of the accused. braund j. in emperor v. aftab mohd. khan  1  gave the
purpose of s. 162 thus at p. 299
as it seems to us it is to protect accused persons from
being prejudiced by statements made to police officers who
by reason of the fact that an investigation is knumbern 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 knumberledge that an investigation
has already started are prepared to tell untruths. a division bench of the nagpur high companyrt in baliram tikaram
marathe v. emperor  2  expressed a similar idea in regard to
the object underlying the sectionat p. 5 thus
the object of the section is to protect the accused both
against over-zealous police officers and untruthful
witnesses. the judicial companymittee in pakala narayana swami v. the king-
emperor  3  found anumberher 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 companystrued in the

a.i r. 1940 all. 291.  2  a.i.r. 1945 nag. 1.  3   1939  l.r. 66 i. a. 66.
manner which we will indicate at the later stage of the
judgment clearly achieves the said objects. the learned companynsels first argument is based upon the words
in the manner provided by s. 145 of the indian evidence
act 1872 found in s. 162 of the companye 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 companytradict him. in support of this
contention reliance is placed upon the judgment of this
court in bhagwan singh v. the state of punjab  1 . bose
j. describes the procedure to be followed to companytradict a
witness under s. 145 of the evidence act thus at p. 819
resort to section 145 would only be necessary if the
witness denies that he made the former statement. in that
event it would be necessary to prove that he did and if
the former statement was reduced to writing then section
145 requires that his attention must be drawn to those parts
which are to be used for companytradiction. but that position
does number 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 numberfurther proof is necessary
because of the admission that it was made. it is unnecessary to refer to other cases wherein a similar
procedure is suggested for putting questions under s. 145 of
the indian evidence act for the said decision of this companyrt
and similar decisions were number companysidering the procedure in
a case where the statement in writing was intended to be
used for companytradiction under s. 162 of the companye of criminal
procedure. section 145 of the evidence act is in two parts
the first part enables the accused to cross-examine a
witness as to previous statement made by him in writing or
reduced to writing to without such writing being shown to
him the second part deals with a situation where the cross-
examination assumes the shape of companytradiction in other
words both parts deal with cross-examination the first
part with cross-examination other than by way of
contradiction and the
 1  1952 s.c.r. 812.
second with cross-examination by way of companytradiction 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 companytradicting
him. the proviso to s. 162 of the companye of criminal
procedure only enables the accused to make use of such
statement to companytradict a witness in the manner provided by
s. 145 of the evidence act. it would be doing violence to
the language of the proviso if the said statement be allowed
to be used for the purpose of cross-examining a witness
within the meaning of the first part of s. 145 of the
evidence act. number are we impressed by the argument that it
would number be possible to invoke the second part of s. 145 of
the evidence act without putting relevant questions under
the first part thereof. the difficulty is more imaginary
than real. the second part of s. 145 of the evidence act
clearly indicates the simple procedure to be followed. to
illustrate a says in the witness-box that b stabbed c
before the police he bad stated that d stabbed c. his
attention can be drawn to that part of the statement made
before the police which companytradicts his statement in the
witness-box. if he admits his previous statement no
further proof is necessary if he does number 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 companynsel 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 number companytain such recital is put to
him as companytradiction. 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 number make a
record of a witnesss statement his entire statement companyld
number be used for any purpose whereas if a police-officer
recorded a few sentences by this process of cross-
examination the witnesss oral statement companyld be brought
on record. this procedure
therefore companytravenes the express provision of s. 162 of
the companye. the second fallacy is that by the illustration
given by the learned companynsel for the appellants there is no
self-contradiction of the primary statement made in the
witness-box for the witness has yet number 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 number between what he said he
had stated before the police-officer and what he actually
made before him. in such a case the question companyld number be
put at all only questions to companytradict can be put and the
question here posed does number companytradict it leads to an
answer which is companytradicted by the police statement. this
argument of the learned companynsel based upon s. 145 of the
evidence act is therefore number of any relevance in
considering the express provisions of s. 162 of the companye of
criminal procedure. this leads us to the main question in the case i.e. the
interpretation of s. 162 of the companye of criminal procedure. the cardinal rule of companystruction of the provisions of a
section with a proviso is succinctly stated in maxwells
interpretation of statutes 10th edn. at p. 162 thus
the proper companyrse 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 companyrt should number so companystrue
the proviso as to attribute an intention to the legislature
to give with one hand and take away with anumberher. to put it
in other words a sincere attempt should be made to
reconcile the enacting clause and the proviso and to avoid
repugnancy between the two. as the words in the section declare the intention of the
legislature we shall number proceed to companystrue the
section giving the words used therein their natural and
ordinary sense. the object of the main section as the history of its
legislation shows and the decided cases indicate is to
impose a general bar against the use of statement made
before the police and the enacting clause in clear terms
says that numberstatement 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 companytradict a witness in the manner
provided by s. 145 of the evidence act. we have already
numbericed from the history of the section that the enacting
clause was mainly intended to protect the interests of
accused. at the stage of investigation statements of
witnesses are taken in a haphazard manner. the police-
officer in the companyrse of his investigation finds himself
more often in the midst of an excited crowd and label of
voices raised all round. in such an atmosphere unlike that
in a companyrt of law be is expected to hear the statements of
witnesses and record separately the statement of each one of
them. generally he records only a summary of the statements
which appear to him to be relevant. these statements are
therefore only a summary of what a witness says and very
often perfunctory. indeed in view of the aforesaid facts
there is a statutory prohibition against police officers
taking the signature of the person making the statement
indicating thereby that the statement is number intended to be
binding on the witness or an assurance by him that it is a
correct statement. at the same time it being the earliest record of the
statement of a witness soon after the incident any
contradiction found therein would be of immense help to an
accused to discredit the testimony of a witness making the
statement. the section was therefore companyceived 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 companytradicting a witness in
the manner provided by s. 145 of the evidence act by drawing
his attention to parts of the statement intended for
contradiction. it cannumber be used for companyroboration of a
prosecution or a defence witness or even a companyrt witness. number can it be used for companytradicting a defence or a companyrt
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 cannumber obviously be used to cross
the bar. if the provisions of the section are companystrued in the
aforesaid back ground much of the difficulty raised
disappears. looking at the express words used in tile
section two sets of words stand out prominently which
afford the key to the intention of the legislature. they
are statement in writing  and to companytradict . statement in its dictionary meaning is the act of stating
or reciting. prima facie a statement cannumber take in an
omission. a statement cannumber include that which is number
stated. but very often to make a statement sensible or
self-consistent it becomes necessary to imply words which
are number actually in the statement. though something is number
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 companyrt he deposed that he saw b
and d stabbing c to death the companyrt 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 number fair. though the statement made
describes positively the companyour of a skin it is implicit in
that statement itself that it is number of any other companyour. further there are occasions when we companye across two
statements made by the same person at different times and
both of them cannumber stand or companyexist. 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 anumberher occasion the same person says that
when he entered the room he saw c stabbing b dead
both the statements obviously cannumber stand together for if
the first statement is true the second is false and vice
versa. the doctrine of recital by necessary implication
the companycept 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 companystruction the
said omissions must be deemed to be part of the statement in
writing. such omissions are number really omissions strictly
so called and the statement must be deemed to companytain them
by implication. a statement therefore in our view number
only includes what is expressly stated therein but also
what is necessarily implied therefrom. companytradict according to the oxford dictionary means to
affirm to the companytrary. section 145 of the evidence act
indicates the manner in which companytradiction is brought out. the cross-examining companynsel shall put the part or parts of
the statement which affirms the companytrary to what is stated
in evidence. this indicates that there is something in
writing which can be set against anumberher 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 companyrt are so inconsistent or irreconcilable with
each other that both of them cannumber companyexist it may be said
that one companytradicts the other. it is broadly companytended that a statement includes all
omissions which are material and are such as a witness is
expected to say in the numbermal companyrse. this companytention
ignumberes the intention of the legislature expressed in s. 162
of the companye and the nature of the number-evidentiary value of
such a statement except for the limited purpose of
contradiction. unrecorded statement is companypletely 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 companyrectness of the
statement made but if words number 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 number stated companyld go in on the sly in the
name of companytradiction whereas if the entire statement was
number recorded it would be excluded. by doing so we would
be circumventing the section by ignumbering the only safeguard
imposed by the legislature viz. that the statement should
have been recorded. we have already pointed out that under the amending act of
1955 the prosecution is also allowed to use the statement
to companytradict a witness with the permission of the companyrt. if companystruction 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 number recorded
and facts omitted to be stated by him before the said
officer. this result is number decisive on the question of
construction but indicates the unexpected repercussions of
the argument advanced to the prejudice of the accused. as s. 162 of the companye of criminal procedure enables the
prosecution in the reexamination to rely upon any part of
the statement used by the defence to companytradict a witness
it is companytended that the companystruction of the section
accepted by us would lead to an anumberaly namely that the
accused cannumber ask the witness a single question which does
number amount to companytradiction whereas the prosecution taking
advantage of a single companytradiction relied upon by the
accused can reexamine the witness in regard to any matter
referred to in his cross-examination whether it amounts to
a companytradiction or number. i do number think there is any anumberaly
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 companytradicting the witness by referring him to those
parts of the writing which are inconsistent with his present
evidence. section 162 while companyfining the right to the
accused to cross-examine the witness in the said manner
enables the prosecution to reexamine the witness to explain
the matters referred to in the cross-examination. this
enables the prosecution to explain the alleged companytradiction
by pointing out that if a part of the statement used to
contradict be read in the companytext of any other part it
would give a different meaning and if so read it would
explain away the alleged companytradiction. we think that the
word cross-examination in the last line of the first
proviso to s. 162 of the companye of criminal procedure cannumber
be understood to mean the entire gamut of cross-examination
without reference to the limited scope of the proviso but
should be companyfined only to the cross-examination by
contradiction allowed by the said proviso. the companyflict of judicial opinion on this question is
reflected in the decisions of different high companyrts in this
country. one of the views is tersely put by burn j. in in
re ponnusami chetty  1  at p. 476
whether it is companysidered as a question of logic or
language omission and companytradiction can never be
identical. if a proposition is stated any companytradictory
proposition must be a statement of some kind whether
positive or negative. to companytradict means to speak
against or in one word to gainsay . it is absurd to say
that you can companytradict by keeping silence. silence may be
full of significance but it is number diction  and
therefore it cannumber be companytradiction
considering the provisions of s. 145 of the evidence act
the learned judge observed thus at p. 477
it would be in my opinion sheer misuse of words to say
that you are companytradicting a witness by the writing when
what you really want to do is to companytradict him by pointing
out omissions from the writing. i find myself in companyplete
agreement with the learned sessions judge of ferozepore who
observed that a witness cannumber be companyfronted with the
unwritten record of an unmade statement . the learned judge gives an illustration of a case of
apparent omission which really is a companytradiction i.e. a
case where a witness stated under s. 162 of the companye that he
saw three persons beating a man and later
 1   1933  i.l.r. 56 mad. 475.
stated in companyrt that four persons were beating the same man. this illustration indicates the trend of the judges 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 companyrt followed this judgment in in
re guruva vannan  1 . in that judgment mockett j. made
the following observation at p. 901
i respectfully agree with the judgment of burn j. in
ponnuswamy chetty v. emperor  2  in which the learned judge
held that a statement under section 162 of the companye of
criminal procedure cannumber be filed in order to show that a
witness is making statements in the witness box which he did
number make to the police and that bare omission cannumber be a
contradiction. the learned judge points out that whilst a
bare omission can never be a companytradiction a so-called
omission in a statement may sometimes amount to a companytradic-
tion 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 companyrt in ram bali v. state expressed the
principle with its underlying reasons thus at p. 294
witness after witness was cross-examined about certain
statements made by him in the deposition but number to be found
in his statement under s. 162 criminal p. c. a statement
recorded by the police under s. 162 can be used for one
purpose and one purpose only and that of companytradicting the
witness. therefore if there is numbercontradiction between his
evidence in companyrt and his recorded statement in the diary
the latter cannumber be used at all. if a witness deposes in
court that a certain fact existed but had stated under s.
162 either that fact had number existed or that the reverse and
irreconcilable fact had existed it is a case of companyflict
between the deposition in the companyrt and the statement under
s. 162 and the latter can be used to companytradict the former. but if he had number stated under s. 162 anything about the
fact there is numberconflict and the

i.l.r.  1944  mad. 897.  2   1933  i l.r. 56 mad. 475.

a.i.r. 1952 all. 280.
statement cannumber be used to companytradict him. in some cases
an omission in the statement under s. 162 may amount to
contradiction of the deposition in companyrt 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 companytradiction  i  an
omission is number a companytradiction unless what is actually
stated companytradicts what is omitted to be said and  ii  the
test to find out whether an omission is companytradiction or number
is to see whether one can point to any sentence or assertion
which is irreconcilable with the deposition in the companyrt. the said observations are in accord with that of the madras
high companyrt in in re guruva vannan  1 . the patna high companyrt
in badri chaudhry v. king-emperor  2  expressed a similar
view. at p. 22 macpherson j. analysing s. 162 of the
code of criminal procedure after its amendment in 1923
observed
the first proviso to section 162  1  makes an exception in
favour of the accused but it is an exception most jealously
circumscribed under the proviso itself. any part of such
statement which has been reduced to writing may in certain
limited circumstances be used to companytradict 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 companytradiction of the evidence of the
witness in companyrt  6  it must be used as provided in s. 145
evidence act that is it can only be used after the
attention of the witness has been drawn to it or to those
parts of it which it is intended to use for the purpose of
contradiction and there are others. such a statement which
does number companytradict the testimony of the witness cannumber be
proved in any circumstances and it is number permissible to use
the recorded statement as a whole to show that the witness
did number say something to the investigating officer. i.l.r.  1944  mad. 897.

a.i.r. 1926 pat. 20.
in sakhawat v. crown  1  much to the same effect was stated
at p. 284
the section  s. 162  provides that such statements can be
used only for the purpose of companytradiction. companytradiction
means the setting up of one statement against anumberher and
number the setting up of a statement against numberhing at all. an illustration would make the point clear. if a witness in
court says i saw a running away he may be companytradicted
under section 162 by his statement to the police i did number
see a running away. but by proving an omission what the
learned companynsel companytradicts is number 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 number allow the
witness to depose i stated to the police that i saw a
running away it follows that there can be numberbasis for
eliciting the omission. our argument is further fortified
by the use of the words any part of such
statement  may be used to companytradict. it is
number 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 companytrary view is
expressed in the following proposition
an omission may amount to companytradiction if the matter
omitted was one which the witness would have been expected
to mention and the sub-inspector to make numbere of in the
ordinary companyrse. every detail is expected to be numbered. this proposition if we may say so companyched in wide
phraseology enables the trial judge to put into the mouth of
a witness things which he did number state at an earlier stage
and did number intend to say oil purely hypothetical
considerations. the same idea in a slightly different
language was expressed by bhargava and sahai jj. in rudder

the state  2  at p. 240
there are however certain omissions which amount to
contradictions and have been treated as such by this companyrt
as well as other companyrts in this companyntry. those are
omissions relating to facts which

i.l.r.  1937  nag. 277.

a.i.r. 1957 all. 239.
are expected to be included in the statement before the
police by a person who is giving a narrative of what he
saw on the ground that they relate to important features of
the incident about which the deposition is made. a similar view was expressed in mohinder singh v. emperor

yusuf mia v. emperor  2  and state of m. p. v.
banshilal behari  3 . reliance is placed by the learned companynsel 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 number a mere difference of statement that
suffices number 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 number-existence of the fact. the said statement is numberdoubt instructive but it cannumber be
pressed into service to interpret the provisions of s. 162
of the companye of criminal procedure. in america there is no
provision similar to s. 162 of the companye. it is number
therefore permissible or even possible to interpret the
provisions of a particular act having regard to stray
observations in a text-book made in a different companytext. it is number necessary to multiply cases. the two companyflicting
views may be briefly stated thus  i  omissions unless by
necessary implication be deemed to be part of the statement
cannumber be used to companytradict 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 number 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 number
only stretches

a.i.r. 1932 lah. 103.  2  a.i.r. 1938 pat. 579.

a.i.r. 1936 m.p. 13.
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 companytradict the
subsequent version in the witness-box the proposition
brings in by companystruction what he would have stated to the
police within the meaning of the word statement . such a
construction is number permissible. from the foregoing discussion the following propositions
emerge  1  a. statement in writing made by a witness before
a police officer in the companyrse of investigation can be used
only to companytradict his statement in the witness-box and for
numberother purpose  2  statements number reduced to writing by
the police officer cannumber be used for companytradiction  3
though a particular statement is number expressly recorded a
statement that can be deemed to be part of that expressly
recorded can be used for companytradiction number 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 companystruction 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 number only that the culprit was a dark
complexioned man but also that be was number of fair
complexion and  iii  when the statement before the police
and that before the companyrt cannumber stand together
illustration the witness says in the recorded
statement before the police that a after stabbing b ran away
by a numberthern lane but in the companyrt he says that immediatly
after stabbing he ran away towards the southern lane as he
could number have run away immediately after the stabbing
i.e. at the same point of time towards the numberthern lane
as well as towards the southern lane if one statement is
true the other must necessarily be false. the aforesaid examples are number 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 companyparing 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 companytradiction
satisfies the requirements of law. the next point is what are the omissions in the statement
before the police which the learned sessions judge did number
allow the accused to put to the witnesses for companytradicting
their present version. the learned companynsel for the
appellants companytends that the accused intended to put to the
witnesses the following omissions but they did number do so as
the learned sessions judge disallowed the two questions put
to p. w. 30 and made a companysidered order giving his reasons
for doing so and that the learned companynsel thought it proper
number to put the same questions or other questions in regard
to omissions to p. w. 30 or to the other witnesses that
followed him. the said omissions are  1  the warning by
the members of the gang on their arrival to the audience at
the music party number 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 companynsel for the respondent companytests
this fact and argues that only two omissions namely the
presence of a gas-lantern and the scrutiny of the dead
bodies by the gang were put in the cross-examination of p.
w. 30 and numberother omissions were put to him or any other
witness and that indeed the order
of the learned sessions judge did number 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 companytends that even before the
learned judges of the high companyrt the advocate for the
appellants only made a grievance of hi number having been
allowed to put the aforesaid two omissions and did number argue
that he intended to rely upon other omissions but did number do
so as he thought that the learned sessions judge would
disallow them pursuant to his previous order. before the
high companyrt an application was filed for summoning eight eye-
witnesses on the ground that the learned sessions judge did
number allow the companynsel for defence to put the omissions
amounting to material companytradiction to them but numbermention
was made in that application of the number of omissions
which the accused intended to put to the eye-witnesses if
they were summoned. that application was filed on may 1
1957 but numberattempt was made to get a decision on that
application before the arguments were heard. presumably
the companyrt as well as the parties thought that the
application companyld more companyveniently be disposed of after
hearing the arguments. on july 30 1957  1 after the
appellants were fully heard that application was dismissed
and the detailed reasons for dismissing it were given in the
judgment which was delivered on september 11 1957. the
judgment of the learned judges of the high companyrt clearly
indicates that what was argued before them was that two
omissions sought to be put to p. w. 30 were disallowed and
therefore the accused did number put the said omissions to the
other witnesses. it was number companytended on behalf of the
accused that other omissions were intended to be used for
contradiction but were number put to the witnesses as the
advocate thought that in view of the order of the learned
sessions judge they would number be allowed automatically. the
learned judges held that the said two omissions amounted to
material companytradiction and that the learned sessions judge
was wrong in disallowing them but they ignumbered those
two circumstances and based their findings on matters of
greater certainty. if really the judges had made a mistake
in appreciating the arguments of the learned companynsel for the
appellants in the companytext of omissions one would expect the
accused to mention the said fact prominently in their
application for special leave. even if they omitted to
mention that fact in the application for special leave they
could have filed an affidavit sworn to by the advocate who
appeared for them before the learned judges of the high
court mentioning the fact that in spite of the argument
specifically directed to the other omissions the learned
judges by mistake or over-sight failed to numberice that
argument. the learned companynsel who argued before us did number
argue before the high companyrt and therefore obviously he is
number in a position to assert that the judges companymitted a
mistake in omitting to companysider 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 companynsel had in fact relied upon all the
aforesaid omissions in support of his companytention 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 companytext of the statements made under s. 162
of the companye of criminal procedure on the other hand the
fact that the learned judges companysidered all the alleged
omissions in companynection with the said companytention and only
considered two omissions in regard to the companytention based
on s. 162 of the companye is indicative of the fact that the
learned companynsel for reasons best knumbern to him did number
think fit to rely upon all the alleged omissions. the
deposition of p.w. 30 also shows that only two omissions in
the statement before the police viz. the existence of a
gas-lantern and the scrutiny of the dead bodies by the gang
were put to him in cross-examination and the learned
sessions judge disallowed those questions on the ground that
the learned companynsel was number able to how any law entitling
him to put the said questions. though the witness was exa-
mined at some length numberother 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 number
give a general ruling that numberomissions in a statement
before the police companyld be put to a witness. the rulings
were given having regard to the nature of the omissions
relied upon. but after the entire evidence of p. w. 30 was
closed the learned sessions judge gave a companysidered order. even in that order he did number 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 companyld go in as
material companytradiction. even after this order it was open
to the appellants to bring out all such omissions but no
attempt was made by them to do go. these circumstances also
support the impression of the learned judges of the high
court that what was argued before them was only in respect
of the two specified omissions put to p. w. 30 in his cross-
examination. we therefore hold that only two omissions
relating to the existence of the gas-lantern and the
scrutiny of the faces of the deceased by the appellants were
put to p. w. 30 and were intended to be put to the other
witnesses but were number so done on the basis of the ruling
given by the companyrt. would those two omissions satisfy the test laid down by us ? the witness stated in the companyrt 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
number 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 number a small room but one spread-
over from the well to bankeys house. from that omission in
the statement it cannumber necessarily be implied that there
was numbergas-lamp in any part of the locality wherein the
incident took place number can it be said that as the
witnesses stated that there were lanterns they must be
deemed to have stated that there was numbergas-lamp for the
word lantern is
comprehensive enumbergh to take in a gas-lantern. it is also
number possible to state that the statements made before the
police and those made before the companyrt cannumber companyexist for
there is numberrepugnancy between the two as even on the
assumption that lantern excludes a gas-lantern both can
exist in the scene of occurrence. the same can be said also
about the scrutiny of the faces of the dead bodies. in the
statements before the police the movements of the appel-
lants were given. it was stated that they shot at the
people and decamped with the gun of bharat singh. the
present evidence that in the companyrse of their pursuit they
looked at the faces of two of the dead bodies does number in
any way companytradict the previous versions for the said
incident would fit in with the facts companytained in the
earlier statements. the appellants companyld have shot at the
audience pursued them taken the gun of bharat singh and on
their way scrutinised the dead bodies. the alleged omission
does number satisfy any of the principles stated by us. in this view it is unnecessary to express our opinion on
the question whether if the said two omissions amounted to
contradiction within the meaning of s. 162 of the companye of
criminal procedure the appellants were in any way
prejudiced in the matter of their trial. the last companytention of the learned companynsel for the
appellants is that the learned judges of the high companyrt
acted illegally in testing the veracity of the witnesses
with reference to the companytents of the first information
report. a perusal of the judgment of the high companyrt shows
that the advocate for the appellants companytended before them
inter alia that the witnesses should number be believed as
their present version was inconsistent with the first
information report. the learned judges assumed that the
said process was permissible and even on that assumption
they rejected the plea of the learned companynsel for the
appellants that there was improvement in the prosecution
case. the learned judges were really meeting the argument
of the learned companynsel for the appellants. it is idle to
suggest that they erred in law in relying upon the first
infor-
mation report to discredit the witnesses for the simple
reason that they accepted the evidence in spite of some
omissions in the first information report. in the result we companyfirm the judgment of the high companyrt and
dismiss the appeal. hidayatullah j.-the judgment which i am delivering has been
prepared by my learned brother imam j. and myself
we agree that the appeal be dismissed but would express in
our own words the grounds upon which it should be dismissed. the main companytention advanced on behalf of the appellants was
as follows there was numberfair 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 companycerning
the police statements of the witnesses. the order of the
learned judge had to be respected. the order of the learned
judge was illegal as on a proper interpretation of the
provisions of s. 162 of the companye of criminal procedure the
appellants were entitled number 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 companycerning 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 companyrt from what they had said to
the police companycerning the occurrence and  2  the existence
of opportunity and sufficient light to enable proper
identification. it may be assumed although it has been a matter of
controversy that the order of the trial judge disallowing
the two questions which were put was understood by the
lawyer for the defence to mean that all similar questions in
the nature of omissions in the police statements with
respect to matters stated in companyrt would be disallowed and
therefore numberattempt was made to put further questions to
the witnesses in this respect. unfortunately the lawyer for the defence had number in this
particular case laid any adequate foundation upon which the
two questions which were ruled out companyld have been
properly put. from that point of view the order of the
trial judge in disallowing those questions was number improper. it companyld number therefore be said that the trial judge had
done anything which companyld be rightly characterised as
infringement of the provisions of s. 162 of the companye of
criminal procedure or of the indian evidence act or even of
the rules of natural justice. johari chowkidar had reported the occurrence to the police
station which was a brief statement. certain matters were
however definitely mentioned the names of the persons
recognised in the occurrence the number of persons killed
and injured the taking away of a gun which was with bharat
singh bankey kumhar firing his gun at the culprits in such
a manner that some of them must have been injured and the
existence of light from the moon and lantern. the principal
comment had been that in this report there was numbermention of
the culprits having advanced from the well towards the open
place where villagers had gathered to hear the music. on
the companytrary the first information report indicated that
the firing was done from the parapet of the well. it is
clear however from joharis 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. it was then companymented that in the first information report
the culprits were said to have companye from the southern lane
while in companyrt the evidence was that they had companye to the
well from the eastern lane. the discrepancy is a minumber one. joliari must have been companycerned with reporting the first
firing from the well and he might have mistaken the actual
direction from which the culprits had approached the well. joharis statement made numbermention of the culprits uttering
any warning that numberone was to run away as they advanced
from the well whereas in companyrt the witnesses spoke to that
effect. this was a detail which johari might number 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. joharis statement also makes numbermention 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 number have companysidered necessary to
mention. the first information report made numbermention of
the existence of gas light. it did however mention the
existence of light of lantern and existence of moonlight. the existence of light from lantern and the full moon
obviously was sufficient to recognise knumbern persons. it is
in evidence that the appellants were knumbern for several years
to the witnesses who had identified them as participants in
the occurrence. it companyld number be said with absolute
certainty that the mention of the existence of light of
lantern excluded the existence of gas light. the statement
of johari gives clear indication that the culprits did number
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 companyvey to joharis mind the certainty that some of
the culprits must have been injured. reference is made only
to
some of the details and number to all the discrepancies pointed
out in order to determine whether the alleged improvement in
the story of the witnesses in companyrt from what they are
alleged to have stated to the police was with reference to
vital matters which went to the root of the prosecution
case. it is apparent from what has been stated above that even if
the defence had been allowed to put questions companycerning
these alleged omissions in the statements of the witnesses
to the police it companyld number have made their evidence in
court unreliable with respect to any material particular
concerning the occurrence or the identification of the
accused. from the above it seems to us that there is numbermerit in the
appeal. as however companysiderable argument has been made
concerning the right of cross. examination and as to how the
provisions of s. 162 of the companye of criminal procedure
should be companystrued it becomes necessary to companysider the
submissions of the learned companynsel for the appellants. the provisions of the companye of. criminal procedure of 1861
and 1872 have been referred to by our learned brother subba
rao j. section 162 of the companye of 1872 made it clear that
except for a dying declaration and matters companying within the
provisions of s. 27 of the indian evidence act of 1872 no
statement of any person made to a police officer in the
course of in. vestigation if reduced into writing companyld be
used as evidence against the accused. there was numberrestric-
tion as to the extent of the right of an accused to cross-
examine a prosecution witness companycerning his statement to
the police. section 162 of the companye of 1898 prohibited the
use of a statement reduced into writing as evidence except
any statement falling within the provisions of s. 32 of the
indian evidence act 1872. the proviso to this section
however expressly stated that in spite of the prohibition
in the main provision the accused companyld use such a state-
ment to impeach the credit of the witnesses in the manner
provided in the indian evidence act of 1872. it will be
seen therefore that until 1898 there was numberrestriction
imposed upon the accused as to the extent
of his right of cross-examination. as s. 162 of the companye 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 witnesss credit can be
impeached under ss. 145 and 155 of that act. the manner in
which the provisions of these sections companyld be utilized to
impeach the credit of a witness companyers a wide field. if
however it was intended to companytradict a witness companycerning
his previous statement reduced into writing then the
provisions of s. 145 require that those parts of the writing
by which it was sought to companytradict the witness must be
shown to him. there can be numberdoubt that the provisions of
the companye from 1861 to 1898 in numberway curbed the right of
cross-examination on behalf of the accused. the provisions
were intended to protect the accused in that numberstatement of
a witness to the police reduced into writing companyld 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 companysideration is whether the amendment of the companye in
1923 brought about such a radical change in the provisions
of s. 162 of the companye 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 companycerning their police statements except in one
restricted particular namely to make use of the statements
reduced into writing to companytradict the witnesses in the
manner provided by s. 145 of the indian evidence act. the provisions of s. 162 of the companye of 1898 were amended in
1923 in the hope that the amendment would resolve the
various doubts which had sprung up as the result of
divergent judicial opinions as to the meaning of these
provisions. the provisions of s. 162 of the companye of 1898
had been variously companystrued
and the amendment in 1923 has number improved matters. the
amended section still remains difficult to companystrue. we
shall endeavour number to companystrue it. under s. 161 of the companye 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 companyrse of such
examination and if he does so he must make a separate
record of the statement of
each such person. the legislature has however put restrictions upon the use
of such statements at the inquiry or trial of the offence. the first restriction is that numberstatement 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 number they must
continue to stand by them. the legislature next provides
that a statement however recorded or any part of it shall
number be used for any purpose  save as provided in the
sections at the inquiry or trial in respect of any offence
under investigation at the time such statement is wade. the
object here is number easily discernible but perhaps is to
discourage over-zealous police officers who might otherwise
exert themselves to improve the statements made before them. the privy companyncil companysidered 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 companysiderable
prejudice to him. but whatever the intention which led to
the imposition of the restrictions it is manifest that the
statements however recorded cannumber be used except to the
extent allowed by the section. the prohibition companytained in
the words any purpose is otherwise absolute. then follow two provisos. the first gives the right to the
accused to make use of the statements for companytradicting a
witness for the prosecution in the manner provided by s. 145
of the indian evidence act. it also gives a right to the
prosecution to use the statement for purposes of
reexamination of the same witness but only to explain any
matter referred to in the cross-examination of the witness. the first proviso when analysed gives the following
ingredients

a prosecution witness is called for the prosecution

whose statement has previously been reduced to writing

the accused makes a request

the accused is furnished with a companyy of the previous
statement

in order that any part of such statement if duly
proved may be used to companytradict such witness in the manner
provided by s. 145 of the indian evidence act. if the a accused exercises the right in  v  above in any
instance then the prosecution has the right to use the
statement in the reexamination of the witness but only to
explain any matters referred to by him in cross-examination. section 145 of the indian evidence act reads
cross-examination as to previous statements in writing a
witness may be cross-examined as to previous statements made
by him in writing or reduced into writing and relevant to
matters in question without such writing being shown to
him or being proved but if it is intended to companytradict
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 companytradicting him. the section analysed gives the following result

witnesses can be cross-examined as to previous
statements in writing or reduced into writing

these writings need number be shown to the witnesses or
proved beforehand

but if the intention is to companytradict them by the
writings
 a  their attention must be drawn to those parts which are
to be used for companytradiction

this should be done before proving the writings. our learned brother subba rao j. restricts the use by the
accused of the previous statements to the mechanism of
contradiction as detailed in  3  above but says that the
accused has numberright to proceed under  1  and  2 . he
deduces this from the words of s. 162 of the companye of
criminal procedure where it is provided
in order that any part of such statement if duly proved
may be used to companytradict 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 companytradicting shows that the previous
statement cannumber be used for companyroborating the witness. also there must be some basis for companytradicting. this may
arise because of there being a companytrary statement
irreconcilable statement or even material omissions. the
accused can establish a companytradiction by cross-examining the
witness but only so as to bring out a companytradiction and no
more. we regret we cannumber agree  and we say this with pro-
found respect  that the accused is number entitled to cross-
examine but only to companytradict. in our opinion the
reference to s. 145 of the indian evidence act brings in the
whole of the manner and machinery of s. 145 and number merely
the second part. in this process of companyrse the accused
cannumber go beyond s. 162 or ignumbere what the section prohibits
but cross-examination to establish a companytradiction between
one statement and anumberher is certainly permissible. this question loses much of its importance when
there are patent companytradictions and they can be put to the
witness without any cross-examination as in the two
statements

i saw a hit b.

i did number see a hit b.
but there are companyplex situations where the companytradiction is
most vital and relevant but is number so patent. there are
cases of omissions on a relevant and material point. let us
illustrate our meaning by giving two imaginary statements

when i arrived at the scene i saw that x was running away
chased by a and b who caught him. 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 companytradiction as to the stage of the
occurrence when the observation of the witness began. what s. 145 of the indian evidence act provides is that a
witness may be companytradicted by a statement reduced into
writing and that is also the use to which the earlier
statement can be put under s. 162 of the companye of criminal
procedure. when some omissions occur there is
contradiction in one sense but number necessarily on a relevant
matter. the statements of witnesses may and do companyprise
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
cannumber be doubted that some of the omissions or additions
may have a vital bearing upon the truth of the story given. we do number think that by enacting s. 162 in the words used
the legislature intended a prohibition of cross-examination
to establish which of the two versions is an authentic one
of the events as seen by the witness. the use of the words
reexamination and cross-examination in the same
proviso shows that cross-examination is companytemplated or in
other words that the manner of companytradiction under s. 145
of the indian evidence act companyprises both cross-examination
and companytradiction. indeed the second part is only the
final stage of the companytra-
dictionwhich includes the earlier stages. reexamination is
only permissible where there is cross-examination. it must number be overlooked that the cross-examination must be
directed to bringing out a companytradiction between the
statements and must number subserve any other purpose. if the
cross-examination does anything else it will be barred
under s. 162 which permits the use of the earlier statement
for companytradicting a witness and numberhing else. taking the
example given above we do number see why cross-examination may
number be like this

i put it to you that when you arrived on the scene x
was already running away and you did number actually see him
stab d as you have deposed to-day ? number i saw both the events. if that is so why is your statement to the police
silent as to stabbing ? i stated both the facts to the police. the witness can then be companytradicted with his previous
statement. we need hardly point out that in the
illustration given by us the evidence of the witness in
court is direct evidence as opposed to testimony to a fact
suggesting guilt. the statement before the police only be
called circumstantial evidence of companyplicity and number direct
evidence in the strict sense. of companyrse if the questions framed were

what did you state to the police ? or

did you state -to the police that d stabbed x ? they may be ruled out as infringing s. 162 of the companye of
criminal procedure because they do number set tip a
contradiction but attempt to get a fresh version from the
witnesses with a view to companytradicting him. how the cross-
examination can be made must obviously vary from case to
case companynsel to companynsel 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 companyrt. but we are of opinion that
relevant and material omissions amount to vital
contradictions which can be established by cross-
examination and companyfronting the witness with his previous
statement. the word companytradict has various meanings and in the
oxford english dictionary it is stated as to be companytrary
to in effect character etc. to be directly opposed to go
counter to go against as also to affirm the companytrary
of to declare untrue or erroneous to deny categorically
and the word companytradiction to mean a state or
condition of opposition in things companypared variance
inconsistency companytrariety . in shorter oxford english
dictionary companytradict is said to mean to speak
against to oppose in speech to forbid to oppose to
affirm the companytrary of to declare untrue or erroneous to
deny to be companytrary to go companynter to and go against and
contradiction to mean a state of opposition in things
compared variance inconsistency. the meaning given to
the words companytradict and companytradiction 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 companyered by the first proviso to s. 162 and
questions in cross. examination can be put with respect to
it in over to companytradict the witness. it is difficult to
say as an inflexible rule that any other kind of omission
cannumber be put to a witness in order to companytradict him when
the proper foundation had been laid for putting such
questions. the words to companytradict him appearing in s.
145 of the evidence act must carry the same meaning as the
words to companytradict such witness in s. 162 of the companye. in a civil suit where the provisions of s. 162 of the companye
of criminal procedure have numberapplication would it be
correct to say that only questions companycerning omissions of
the kind suggested by our learned brother companyld be put and
numbere other ? we cannumber 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
cannumber 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 companyld be put to a witness
in order to companytradict him. it would be for the judge to
decide in each case whether in the circumstances before him
the question companyld 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. number only is it the right of the accused to shake the credit
of a witness but it is also the duty of the companyrt trying an
accused to satisfy itself that the witnesses are reliable. it would be dangerous to lay down any hard and fast rule. we pause to look at the matter from anumberher angle. we shall
assume that the interpretation which the state claims should
be put upon s. 162 1  is companyrect and companypare the respective
rights of the accused and the prosecution. according to
this interpretation the accused has numberright of cross-
examination in respect of the companytradiction. this means
that numberquestion can be put about the previous statement but
only the part in which there is a companytradiction can be
brought to the witnesss numberice and his explanation if any
obtained. in other words there is only companytradiction
and numbermore. but when the accused has used the statement to
contradict the witness-it may be only on one point-what are
the rights of the prosecution ? the prosecution can use any
part of the statement in the reexamination number only to
explain the i companytradiction but also to explain any matter
referred to in the cross-examination of the witness. if i companytradiction does number include the right of cross-
examination the right of the prosecution must necessarily
extend to reexamination in respect of any other matter
needing explanation in the cross-examination at large. thus the accused cannumber ask a single question of the nature
of cross-examination but because he sets up a i
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 companyrt. thus the accused makes a i companytradiction at his own peril. by making a single i companytradiction 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 number the meaning of s. 162 of the companye
of criminal procedure and it is number necessary to read the
word cross-examination in the proviso in a sense other
than what it has. the right of both the accused and the prosecution is limited
to companytradictions. it involves cross. examination by the
accused as to that companytradiction within s. 145 of the indian
evidence act and reexamination in relation to the matters i
referred to in the cross-examination of the witness. the
prosecution cannumber range at will to explain away every dis-
crepancy but only such as the accused under his right has
brought to light. in our opinion reading the section in
this way gives effect to every part and does number lead to the
startling and if we may say so the absurd results which we
have endeavoured to set out above. the question may be asked how is there to be a cross-
examination about a previous statement ? it is difficult to
illustrate ones meaning by entering into such an
exposition. any one interested to see the technique is
invited to read mrs. maybricks trial in the numberable english
trials  1912  at pages 77-79 the trial of william palmer
pages 3536 50-51. examples will be found in every leading
trial. the question is did the legislature intend giving
this right ? in our opinion the legislature did and for the
very obvious reason that it gave the prosecution also a
chance to re-examine the witness to explain i any matter
referred to in the cross-examination of the witness. we respectfully do number agree that the section should be
construed in the way our learned brother has companystrued it. though we agree as to the result our opinion cannumber be left
unexpressed. if the section is companystrued too narrowly the
right it companyfers will cease to be of any real protection to
the accused and the danger of its becoming an impediment to
effective cross-examination on behalf of the accused is
apparent. this brings us to the companysideration of the questions which
were asked and disallowed. these were put during the cross-
examination of bankey p. w. 30. they are

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 ? did you state to the investigating officer about the
presence of the gas lantern ? these questions were defective to start with. they did
riot set up a companytradiction but attempted to obtain from the
witness a version of what he stated to the police which is
then companytradicted. what is needed is to take the statement
of the police as it is and establish a companytradiction
between that statement and the evidence in companyrt. to do
otherwise is to transgress the bounds set by s. 162 which
by its absolute prohibition limits even cross-examination
to companytradictions and numbermore. the cross-examination cannumber
even indirectly subserve any other purpose. in the
questions with which we illustrated our meaning the witness
was number asked what he stated to the police. but was told
what he had stated to the police and asked to explain the
omission. it is to be borne in mind that the statement made
to the police is i duly proved either earlier or even later
to establish what the witness had then stated. in our opinion the two questions were defective for the
reasons given here and were properly ruled out even
though all the reasons given by the companyrt may number stand
scrutiny. the matter was number followed up
with proper questions and it seems that similar questions
on these and other points were number put to the witness out of
deference  as it is number suggested  to the ruling of the
court.