Fateh vs The State of Punjab

A.D. Koshal, J.—Fatte, aged 40 years, son of Mai Chand and a resident of village Gaddi Kheri in Police Station Sadar Rohtak, has filed this appeal against the judgment dated the 7th of June, 1966, of Shri K.S. Sidhu, Additional Sessions Judge, Rohtak, convicting him of an offence u/s 302 of the Indian Penal Code for intentionally causing the death of his brother Surat Singh, aged 42 years, and of another u/s 326 of the Indian Penal Code for causing grievous hurt to his own wife Shrimati Santokhi (P.W. 4) on the night between the 10th and 11th of May, 1965, and sentencing him on the two counts to imprisonment for life and rigorous imprisonment for two years respectively, the sentences having been directed to run concurrently.

The case for the prosecution may be stated thus. Surat Singh deceased, who was an elder brother of the appellant, was a bachelor and had developed illicit corrections with Shrimati Santokhi (P.W. 4), the wife of the appellant. The appellant naturally resented Surat Singh''s misconduct and used to beat Shrimati Santokhi in order to wean her away from the path of immorality for sometime before the occurrence, the appellant had ceased to be on speaking terms with the deceased.

Having failed to stop his wife from having adulterous connections with Surat Singh, the appellant decided to put an end to the life of them both. On the night between the 10th and 11th of May, 1965, Surat Singh deceased and Shrimati Santokhi P. W. were sleeping in two different cots spread side by side in the compound which is common to the house of the appellant and the deceased. Shrimati Santokhi''s children were also sleeping nearby. Biru (P.W. 6), a younger brother of the appellant, was sleeping in his own adjoining compound. At about midnight the appellant attacked Surat Singh in his sleep with Kassi Exhibit P. 1 and inflicting three cut wounds in the neck therewith, killed him on the spot. In the meantime Shrimati Santokhi P. W. got up and raised an alarm but she was also attacked by the appellant and sustained two incised wounds and a punctured wound on her arms and legs. Her hue and cry attracted to the spot Lekhu (P.W. 5), Biru (P.W. 6), Banwari (P.W. 7), and one Chandri, all of whom saw the appellant inflicting the last Kassi blow on Surat Singh deceased and three Kashi blow on Shrimati Santokhi P. W. The appellant made good his escape, taking the Kassi with himself.

Biru (P.W. 6) reached Police Station Sadar Rohtak at 5-30 A.M. on the 11th of May, 1965, when he lodged first information report Exhibit P.A. with Assistant Sub Inspector Joginder Singh (P.W. 15) who accompanied Biru P.W. to the spot of occurrence and prepared the inquest report in relation to the dead body of Surat Singh which was then despatched to the Rolhtak mortuary for post-mortem examination. The Assistant Sub Inspector took into possession bloodstained earth from underneath the cot in which the dead body of Surat Singh was found lying and also prepared statement Exhibit P.O. in relation to the injuries found by him on the person of Shrimati Santokhi P. W. who was examined at 10-30 A.M. on the same day by Dr. Khalinder Sarup (P.W. 3) and was found to have the following injuries on her person:-

Oblique superficial incised wound measuring about 3" x 1/5'''' on the lateral surface of right upper arm about 3" above the elbow. The slicing of skin was from below upwards.

Punctured would with clean cut edges measuring about 3/4" x 1/4" x 1" deep just at the anterior end of injury No. 1

Oblique incised wound measuring about 3 1/4'''' x 3/4" x 2" deep on the antero-lateral surface of right leg about 3" both the leg bones appear to be cut in the alignment of wound.

Injuries Nos. 1 and 2 were simple and injury No. 3 grievous in nature. Injury No. 2 had been caused by a sharp edged pointed weapon and the other two with sharp edged weapons. The duration of the injuries was estimated at "within 24 to 36 hours".

The autopsy was performed by Dr. Mrs. J. Chanda (P.W. 1) on the 11th of May, 1965, from 11-30 A.M. onwards. She found the followed ante-mortem injuries on the dead body of Surat Singh:-

A cut wound 2" x 1" x 2" on the left side of the neck, above the left clavicle.

A cut wound 4" x 1 1/2" x 2", 1/2" above injury No. 1 and 1 1/2" below the left ear. The carotid artery was found cut.

A cut wound 4 1/2" x 2 1/2" x 1 1/2" over the left mandible extending from the left ear up to the mid-point of the chid. The mandible was also found cut.

In the opinion of the doctor, Surat Singh died of shock and haemorrhage resulting from these injuries. The death had occurred almost immediately after the infliction of the injuries while the time-gap between the death and the autopsy was estimated as "within 24 hours". The injuries were sufficient in the ordinary course of nature to cause death. Partially digested food was found in the stomach of the deceased.

The appellant absconded after the occurrence and was declared a proclaimed offender. He was arrested on the 24th of September, 1965, while in custody, made on the 2nd of October, 1965, a disclosure in pursuance of which kassi Exhibit P. 1 was recovered from a manure heap lying near he bictora of one Biru (Memos. Exhibits P. 1 and P. J.)

Nineteen witnesses were examined at the trial in support of the prosecution case, three of them on affidavits. They included Shrimati Santokhi (P. W. 4) Lekhu (P. W. 5), Biru (P. W. 6) and Banwari (P. W. 7), all of whom were, according to the prosecution, eye-witnesses of the occurrence. Shrimati Santokhi (P.W. 4) refused to support the prosecution in the witness-box and deposed that on the night of the occurrence, she did not see the appellant in the house and that she also could not say where Surat Singh had slept. She professed ignorance about Surat Singh''s killer as also own assailant, the reasons given by her for the same being that she had lost consciousness on account of receipt by her of kassi blows. She was allowed by the learned Additional Sessions Judge to be cross-examined by the Public Prosecutor and after her attention had been drawn to various portions of her statement made to the Committing Magistrate, the statement was transferred to the file of the Sessions case under the provisions of section 288 of the Code of Criminal Procedure. In that statement she had gone the whole hog with the prosecution and had claimed to be an eye-witness of the occurrence in which Surat Singh was killed by kassi blows given by the appellant and she herself had been injured by such blows.

Banwari (P.W. 7) also asserted that he had not witnessed the occurrence but that he had only heard Shrimati Santokhi (P.W. ) and her children crying "mar gaya mar gaya". He was also allowed to be cross-examined by the Public Prosecutor and was confronted with that part of his statement made to the Committing Magistrate according to which he had heard Shrimati Santokhi and her children shouting immediately after the occurrence that Fatte had murdered Surat Singh. He took the stand that he might have made that assertion before the Committing Magistrate but that the same was not correct.

Biru (P.W. 6) disclaimed being an eye-witness and asserted that he had reached the place of occurrence after the murder and that he only heard Shrimati Santokhi and her children crying that the appellant had run away after murdering Surat Singh and inflicting cut wounds on Shrimati Santokhi. Various portions of the first information report lodged by him with the police were brought to his attention but he denied that he was the author thereof.

Lekhu (P.W. 5), however, stuck to his earlier stand and stated that he had seen the appellant inflicting kassi blows on the neck of Surat Singh and on the person of Shrimati Santokhi P. W. According to him, Banwari and Biru P.Ws. and Chandgi had also reached the spot in time to see the occurrence. He added that after the commission of the crime, the appellant ran away from the spot carrying the kassi with him. The witness further stated that Surat Singh had illicit relations with Shrimati Santokhi P.W. and that it was for that reason that the appellant had killed Surat Singh and injured Shrimati Santokhi.

Pehlad (P.W. 8), Constable Sushil Kumar (P.W. 11) and Sub Inspector Rohtan Singh (P.W. 12) made depositions testifying to the abscondence of the appellant after the occurrence and about his arrest on the 24th of September, 1965, after he had been declared a proclaimed offender. Assistant Sub Inspector Din Dayal (P. W. 14) and Sub Inspector Joginder Singh (P.W. 15) are the investigating officers and they have given the same details of the investigation as have been narrated as part of the prosecution case.

Rup Chand (P.W. 9) testified to the appellant having made a disclosure regarding the kassi in his presence and to the kassi having been later recovered from the place of its concealment.

When examined in pursuance of the provisions of section 342 of the Code of Criminal Procedure, the appellant admitted that Shrimati Santokhi was a woman of immoral character and that she was having illicit relations with his brother Surat Singh. He further admitted that he had been scolding and rebuking her on that account and that he had remained absent from his village for the entire period from the 11th of May, 1965, to the 24th of September, 1965, but asserted that his absence was due to the fact that he had gone to Bhatinda for his livelihood there. All the other allegations made against him by the prosecution were denied by him as incorrect. He disowned Kassi Exhibit P. 1 as well as the disclosure said to have been made by him to Assistant Sub Inspector Din Dayal P. W.

No evidence was produced in defence.

The learned Additional Sessions Judge found that the statement made by Shrimati Santokhi (P. W. 4) to he Committing Magistrate was a narration of the truth and that she had resiled therefrom at the trial with the object of saving her husband from punishment. He also regarded the deposition of Lekhu (P.W. 5) to "be trustworthy. Certain portions of the testimony of Biru (P.W. 6), a younger brother of the appellant, were found by him to be lending corroboration to Shrimati Santokhi''s statement before the Committing Magistrate. He was further of the opinion that the medical evidence supported the prosecution case and that the appellant had been shown to have absconded immediately after the occurrence. It was in this view of the matter that he convicted and sentenced the appellant as aforesaid.

Shri R.L. Sharma, Advocate, appearing amicus curiae for the appellant, has urged that the desposition of Shrimati Santokhi (P.W. 4) made to the committing Magistrate should not be accepted in preference to her assertions at the trial, but he had not been able to point out any material on the record from which he may find substance in his contention. On the other hand, the circumstances of the case show that the conclusion arrived at by the learned Additional Sessions Judge in this regard is correct. The stand taken by Shrimati Santokhi (P.W. 4) at the trial may be reproduced with advantage;

Over a year back, I had slept for the night in the compound of my house, in village Gaddi Kheri. I do not know where my husband Fatte, the accused, slept that night. When I went to sleep, with my child, I did not see the accused in the house. Surat Singh was the elder brother of my husband Fatte. I do not see as to where Surat Singh slept that night. I do not know who killed Surat Singh I lost consciousness by the infliction of Kassi blows to me. I do not know who inflicted these blows to me.

This stand is obviously false in material particulars as is evident from the deposition of Biru (P.W. 6) who, being a brother of the appellant, was in no mood to oblige the prosecution. He stated that on the night of the occurrence he was asleep in his cot at a distance of 10 or 12 paces from the place where the deceased and Shrimati Santokhi (P.W. 4) were sleeping in their own cots. He denied a suggestion made to him on behalf of the appellant in cross-examination that the appellant was not present in the village on the day immediately preceding the night of the occurrence. On these points there is no reason why Biru P.W. should be disbelieved It follows that the assertion made by Shrimati Santokhi in the witness-box that on the night of occurrence she did not see the appellant in the house nor knew where he slept, is false. Again, there is overwhelming evidence to the effect that Surat Singh was found murdered in a cot lying in the compound of the house wherein he and the appellant were residing jointly. That is the same courtyard in which Shrimati Santokhi P.W. slept for the night on her own showing. In this view of the matter also her claim that she was ignorant of the place where Surjit Singh slept for the night, is without substance.

The night of the occurrence was a moonlit one and the Full moon appeared four nights later which means that the light available from the moon at the time of the occurrence must have been sufficient for people to identify others at a short distance. Shrimiti Santokhi P.W. was doubtlessly injured during the occurrence and she could not ordinarily have failed to recognise her assailant. Her averment in the witness-box, therefore, that she did not know who inflicted kassi blows to her cannot be believed it is no doubt possible and even probable that she became unconscious after receiving the injuries but then she must have had ample opportunity before that to recognise the person who committed the outrage as also the weapon of offence. From whatever angle, therefore, her stand at the trial is examined, it appears to be full of lies. On the other hand, her statement to the Committing Magistrate which was transferred u/s 288 of the Code of Criminal Procedure and on which the learned Additional Sessions Judge has relied for basing the appellant''s conviction given an account of the occurrence which inspires confidence. Her attention was drawn to the following portions of that statement:

(i) Surat Singh deceased was also sleeping in the courtyard on a cot. (Portion A to A)

(ii) Fateh Singh accused gave a kassi blow on my right hand. Thereafter he gave another kassi blow on my right leg. I got up and raised an alarm. I became unconscious on receipt of injuries at the hands of the accused. The accused ran away after causing injuries to me and murdering Surat Singh with kassi. (Portion B to B).

(iii) The accused gave three blows with a kassi to Surat Singh on his neck. Biru and Lekhu had come to the spot. I do not know who else came there. (Portion C to C).

(iv) He used to remain generally away from the house. (Portion D to D).

Shrimati Santokhi averred that she had not stated to Committing Magistrate anything occurring in portion s A to A, B to B and C to C detailed above. With regard to portion D to D above cited, she said that that was not correctly recorded. However, there is no reason why she should have claimed to be an eye-witness of the occurrence and to have seen the appellant inflicting injuries on the deceased and herself with a kassi on the fateful night if she had actually not identified the assailant. It is to be noted that the appellant is her own husband and even if there was bad blood between her and him, it does not appear probable that she would falsely accuse him of as serious a crime as murder. We thus find ourselves in agreement with the learned Additional Sessions Judge that her statement to the Committing Magistrate contains a true account of what actually happened.

Lekhu (P.W. 5) is the only other eye-witness who has supported the prosecution. His house is no doubt situated at some distance from the place of occurrence but then the reason given by him for being able to see the appellant giving kassi blows to the deceased and Shrimati Santokhi (P.W. 4) is that he was on his way back from his thrashing-floor to his house when he heard the cries "Kat geria mar geria" emanating from the house of the appellant and entered it. He is thus rendered a chance witness but we see no ground to discard his testimony as untrustworthy as he is not shown to be interested either in the prosecution or against the appellant and there is nothing unnatural in the stand taken by him that he was returning from his fields at the time of the occurrence and was attracted to the appellant''s house by the hue and cry.

The motive for the offence is also fully proved and reference in that connection may be made to the depositions of Shrimati Santokhi (P.W. 4), Lekhu (P.W. 5) and Biru (P.W. 6), all of whom stated that Surat Singh had illicit relations with Shrimati Santokhi P.W. who herself and Biru (P W. 6) added that the appellant used to beat her on that account.

There can also be no doubt that the appellant had absconded after the occurrence and was not available to the police for more than four months. In this connection reference may be made again to the deposition of Biru P.W. who denied a suggestion made by the defence that the appellant was not present in the village on the days preceding the occurrence. Shrimati Santokhi (P.W. 4) no doubt stated that the appellant had been absent from his house for a number of days preceding the occurrence as he had gone out in search of work as a labourer, but this assertion appears to have be made by her falsely in another attempt to save her husband from punishment as is clear from the ocular evidence and the deposition of Biru (PW. 6).

The medical evidence is also in accord with the ocular version of the occurrence. All the injuries found on the dead body of Surat Singh and two of the three wounds which Shrimati Santokhi P.W. had on her person after the occurrence could surely have been caused by blows from a kassi. Dr. Khalinder Sarup (P.W. 3), however, stated that the punctured wound found on the right upper arm of Shrimati Santokhi could not have been caused by kassi Exhibit P. 1. Nevertheless he added that in some cases it is possible that a wound may appear to be a punctured wound without being actually so. As it is, we are not certain about the correctness of Dr. Khalinder Sarup''s opinion that the punctured wound in question could have been caused by a blow from kassi Exhibit P. 1. Such a wound could perhaps be caused if one of the corners of the blade of the kassi hit the injured part. The possibility also cannot be ruled out of Shrimati Santokhi having sustained the punctured wound by falling upon some sharp-pointed article lying on the ground. In whatever manner the punctured wound was, therefore, caused, it does militate against the truth of the ocular version of the occurrence.

For the reasons given above, we find the conviction of the appellant to be well-based. He has already been awarded the lesser sentence provided for the offence of murder and his appeal is dismissed.

Before parting with this judgment we must point out that the method adopted by the learned Additional Sessions Judge in drawing the attention of Biru (P.W. 6) to various portions of first information report Exhibit P.A. by putting him a single question and without reference to particular portions of the deposition of the witness at the trial, the falsity of which was sought to be established, was improper. It appears from the record that after Biru''s examination-in chief was over, he was put a question to which he replied as follows:

I went to the police station and lodged report Exhibit P.A. portions A to A, B to B, C to C, D to D, E to E, and F to F have been brought to my attention. I did not make the statement as recorded in these portions.

A composite question embracing different portions of a previous statement made by the witness is wholly out of place in the context of section 145 of the Indian Evidence Act but it was exactly such a question with the above reply to which Biru (P.W. 6) was sought to be contradicted by various averments made by him in the first information report. And then, the particular portions of the deposition of the witness in which he was intended to be contradicted by his attention being drawn to portions of first information report in Exhibit P. A. are not specified and in order to find them out one would have to go through the entire deposition of the witness and get at such portions by recourse to logic. Again, the averments made in portions A to A, B to B, C to C, D to D, E to E. and F to F of first information report Exhibit P. A. can-be ascertained only on a perusal of Exhibit P.A. itself and are not apparent from the record of the deposition of P.W. 6. This is a very unsatisfactory method of drawing the attention of a witness to portions of his previous statement with which he is sought to be contradicted. The learned Additional Sessions Judge should have seen to it that when the Public Prosecutor was allowed to cross-examine the witness (which itself is not apparent from the record), the witness should have been put distinct questions with reference to his previous statement as to whether such and such facts did not constitute the truth, each question being confined to a single such fact, and if the witness stated that the fact put to him was not the truth, his attention should there and then have been drawn to the assertion of the fact as appearing in his previous statement and such assertion should have been set out in the record of the deposition. If such a procedure had been followed, there would not only be no difficulty in grasping the purport of the deposition of the witness at a glance but the witness would also have been afforded an opportunity of explaining any departure from his previous statement, and in that case that part of the deposition of Biru (P. W. 6) which we have quoted earlier in this paragraph would read something like this;

I went to the police station and lodged report Exhibit P.A. I did not see Fatte cutting my brother Surat Singh with a Kassi while he was sleeping on a cot in the courtyard and Mst. Santokhi was rescuing him. (Attention of the witness has been drawn to portion A to A of F.I.R. Exhibit P. A. reading: I saw Fatte cutting my brother Surat Singh with a kassi while he was sleeping on a cot in the courtyard and Mst. Santokhi was rescuing him). I did not State in the F.I.R. Exhibit P. A. as appearing in portion A to A thereof. It is not a fact that Fatte aforesaid gave a kassi blow on the neck of Surat Singh with its right side in my presence. (Attention of the witness has been drawn to portion B to B of F.I.R. Exhibit P.A. reading: ''Fatte aforesaid gave a kassi blow on the neck of Surat Singh with its right side in my presence''). I did not state in F.I.R. Exhibit P. A. as appearing in portion B to B thereof. I do not know if Mst. Santokhi fell down as a result of receiving a push or if Fatte aforesaid gave one or two kassi blows on her right leg while she was lying fallan. (Attention of the witness has been drawn to portion C to C of F.I.R. Exhibit P. A. reading: Mst. Santokhi fell down as a result of receiving a push. Fatte aforesaid gave one or two kassi blows on her right leg while she was lying fallen). I did not State in F.I.R. Exhibit P. A. as appealing in portion C to C thereof. I do not know if Banwari son of Lekhi, Chandgi son of Chhotu and Lekhu son of Maghi were attracted to the spot and witnessed the occurrence (Attention of the witness has been drawn to portion D to D of F.I.R. Exhibit P.A. reading: On hearing the noise Baru son of Lekhi, Chandgi son of Chhotu, Chamars by caste, and Lekhu son of Maghi, Chamar by caste, member Panchayat, residents of the village, also reached the spot who have also witness the occurrence''). I did not state in F.I.R. Exhibit P. A. as appearing in portion D to D thereof. I did not see Fatte running away from his house after the occurrence. (Attention of the witness) has been drawn to portion E to E of F.I.R. Exhibit P.A. reading: ''Fatte run away from his house after the occurrence''). I did not state in F.I.R. Exhibit P.A. as appearing in portion E to E thereof. I do not know if Lekhu aforesaid remained present at the spot in order to guard the dead body. (Attention of the witness has been drawn to portion F to F of F.I.R. Exhibit P. A. reading: Lekhu aforesaid is present at the spot in order to guard the dead body''), I did not state in F.I.R. Exhibit P.A. as appearing in portion F to F thereof.

Other cases also have come to our notice from time to time in which the procedure detailed in section 145 of the Indian Evidence Act was not properly followed and it is on that account that we have indicated at length as to what that procedure is. Subordinate Courts-would do well to grasp the procedure correctly so that miscarriage of justice such as may result from observation of faulty procedure is avoided.

Gurdev Singh, J.

For the reasons given by my learned brother I agree with him that this appeal must fail, and the conviction and sentence of the appellant be upheld. I also agree with him that the procedure adopted by the learned trial Judge in confronting the prosecution witnesses with their previous statements is not proper. In fact, of late we find that some of the learned Judges conducting the trials of Sessions cases have no clear idea of the manner and the purpose for which the previous statements of a witness are to be used, and not unoften they do not appreciate the purport and importance of the provisions contained in section 162 of the Criminal Procedure Code and Section 145 of the Evidence Act, ignoring even the instructions by this Code from time to time and those contained in paragraphs 3 to 6 of Chapter 12 of the High Court Rules and Orders, Volume III. Since it is a matter of some importance and I feel that for the guidance of the subordinate Courts it is necessary to reiterate the legal position with regard to the use of statements u/s 162 of the Criminal Procedure Code, I would like to add a few words to what my learned brother has said.

A previous statement of a witness, who is called at an enquiry or trial, is available both for the purpose of corroborating his evidence and contradicting him. Its use for corroboration is waranted by the provisions of section 157 of the Evidence Act, and for that purpose a previous statement can be proved. At criminal trials most often the first information report is used by the prosecution to corroborate the evidence that the informant gives in Court.

If it is found that the previous statement made by a witness is not consistent with his deposition at the trial, the necessity of using that statement to contradict the witness arises. In such cases, it is not enough to prove the earlier inconsistent statement, as the law requires that the witness must be confronted with such statement and given an opportunity to explain the discrepancy or contradiction. The relevant provision is to be found in section 145 of the Evidence Act, which runs thus:-

A witness my be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matters in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

Under this provision, a witness can be cross-examined as to the previous statement made by him in writing or reduced into writing and relevant to the matters in question. It is further laid down that if it is intended to contradict him, his attention must be called to those portions of the writing containing his statement which are to be used for the purpose of contradicting him. It is here that some confusion arises in practice and most often the correct procedure is not adopted, particularly in dealing with the previous statement of a witness recorded u/s 161 of the Criminal Procedure Code. Section 162 of the Code restricts the purposes for which the statement recorded in the course of investigation u/s 161 of the Criminal Procedure Code can be used. To appreciate the difference between a statement recorded u/s 161 of the Criminal Procedure Code and a previous statement of a witness, which is not recorded during investigation, it is necessary to reproduce section 162 of the Criminal Procedure Code, which runs as follows:-

162(1) No statement made by any person to a police officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in police-diary or otherewise 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, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872, and 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.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of section 32, clause (1) of the Indian Evidence Act, 1872, or to effect the provisions of section 27 of that Act.

In unambiguous words, the legislature has laid down that a statement recorded u/s 161 unless it is covered by sub-section 2 of section 162 of the Criminal Procedure Code, cannot be used for any purpose except to contradict a person whom the prosecution has called as its witness with the proviso that when such statement is used for contradiction, the prosecution may also make use of it in re-examination. It is thus quite evident that a statement recorded u/s 161 of the Criminal Procedure Code cannot be used for the purpose of corroboration or to contradict a witness called in defence or as a Court witness. On a combined reading of section 145 of the Evidence Act and section 162 of the Criminal Procedure Code, it further becomes clear that a prosecution witness cannot be cross-examined generally with regard to such previous statement but only for the purpose of bringing out contradictions and that too in accordance with the procedure prescribed u/s 145 of the Evidence Act. The matter was considered by their Lordships of the Supreme Court in Tahsildar Singh and Another Vs. The State of Uttar Pradesh, After referring to the earlier judgment of that Court in Bhagwan Singh v. State of Punjab AIR 1959 S.C. 214, Subba Rao J, delivering the majority judgment, observed as follows:-

Section 145 of the Evidence Act is in two parts; the first part enables the accused to cross-examine a witness as to previous statement made by him in writing or reduced to writing without such writing being shown to him, the second part deals with a situation where the cross-examination assumes the shape of contradiction; in other words, both parts deal with cross-examination, the first part with cross-examination other than by way of contradiction and the second with cross-examination by the way contradiction only. The procedure prescribed is that if it is intended to contradict a witness by the writing, his attention must, before the writing can be prove, be called to those parts of it which are to he used for the purpose of contradicting him. The proviso to section 162 of the Code of Criminal Procedure only enables the accused to make use of such statement to contradict a witness in the manner provided by section 145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of section 145 of the Evidence Act. Nor are we impressed by the argument that it would not be possible to invoke the second part of section 145 of the Evidence Act without putting relevant questions under the first part thereof. The difficulty is more imaginary then real. The second part of section 145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate: A says in the witness-box that B stabbed C; before the police he had stated that D stabbed C. His attention can be drawn to that part of the statement made before the police which contradict is his statement in the witness-box. If he admits his previous statement, no further proof is necessary; if he does not admit, the practice generally followed is to admit it subject to proof by the police officer. On the other hand, the procedure suggested by the Learned Counsel may be illustrated thus: If the witness is asked "did you say before the police-officer that you saw a gas light?" and he answers "yes", then the statement which does not contain such recital is put to him as contradiction. This procedure involves two fallacies: one is it enables the accused to elicit by a process of cross-examination what the witness stated before the police-officer. If a police-officer did not make a record of witness''s statement, his entire statement could not be used for any purpose, whereas if a police-officer recorded a few sentences, by this process of cross-examination, the witness''s oral statement could be brought on record. This procedure, therefore, contravenes the express provision of section 162 of the Code. The second fallacy is that by the illustration given by the Learned Counsel for the appellants there is no self-contradiction of the primary statement made in the witness-box, for the witness has yet not made on the stand any assertion at all which can serve as the basis. The contradiction, under the section, should be between what a witness asserted in the witness-box and what he stated before the police-officer, and not between what he said he had stated before the police-officer and what he actually made before him. In such a case the question could not be put at all; only questions to contradict can be put and the question here posed does not contradict; it leads to an answer which is contradicted by the police statement.

In view of this authoritative pronouncement with regard to the interpretation of section 145 of the Evidence Act, it is obvious that a witness examined in a criminal proceedings cannot be cross-examined generally with regard to the statement made by him earlier u/s 161 of the Criminal Procedure Code, and thus he cannot be asked what he stated before the investigating officer or whether he made a particular statement to the police. A statement recorded u/s 161 of the Criminal Procedure Code, unless it falls under sub section (2) of section 162 of the Code, can be used only for purposes stated in subsection (1) of section 162, viz., to contradict a witness called by the prosecution, and with the permission of the Court, by the prosecution in re-examination of such witness, only for purposes of explaining any matter referred to in his cross-examination. Thus, a witness can neither be asked, to disclose the statement that he made to the investigating officer nor whether he made a particular statement before the police unless the statement put to him is found in the written record of his previous statement u/s 161 and is inconsistent with any part of the statement made by the witness in Court. Keeping this in mind, the procedure for contradicting a witness with his previous statement recorded u/s 161 may briefly be stated thus:-

When it is found that a witness has made in Court a statement which is inconsistent or conflicting with his previous statement recorded u/s 161 of the Criminal Procedure Code and it is intended to contradict him with such statement, the relevant portion of his previous statement should be real out to him and he should be asked if he had previously made that particular statement. If the witness admits having made such statement, no further proof of that statement is necessary, but in case he denies or says that he does not recollect having made it that portion of his previous statement should, subject to its proof at a subsequent stage, be marked and exhibited and the witness confronted with it. After he is so confronted with his previous statement which is found to be inconsistent with his statement in Court, the witness must be called upon and afforded an opportunity to explain the contradiction or reconcile the discrepancy that has been pointed out to him. As has been stated in paragragh 5 of Chapter 12 of Volume III of the Rules and Orders of this Court, the best way of doing this would be to put direct questions reciting the relevant portions of the two statements to the witness and asking for an explanation as to the discrepancies between the same and to record fully such questions and answers given by the witness. The record of the Court should clearly indicate that this procedure has been followed.

It must be remembered that u/s 162 of the Criminal Procedure Code read with section 145 of the Evidence Act, it is only that portion of the statement which is used for contradicting a prosecution witness that can be proved or admitted into evidence. Thus, the entire previous statement cannot be proved or exhibited or read in evidence. The practice of exhibiting the entire statement is illegal, and it is only the particular portion of the previous statement which is used in the manner stated above u/s 145 of the Evidence Act to contradict the witness that can be made use of and proved. The portions with which the witness is confronted should be separately marked in a convenient manner such as ''A'' to ''A'', ''B'' to ''B'' and so on, the complete statement being given a distinguishing mark like an exhibit merely for purposes of identification.

It has been noticed quite often that most of the Judges and Magistrates while questioning a witness about his previous statement merely note down that he has been confronted with particular portions marked ''A'' to ''A'', ''B'' to ''B'' etc., without bringing on record the particular statement with which a person is confronted and without indicating whether the witness was afforded an opportunity to explain the contradiction or discrepancy and what his explanation was. Such a practice, apart from being not in consonance with the procedure, prescribed u/s 145 of the Evidence Act, is not helpful as every time the person reading the deposition will have to refer to the entire record of the earlier statement. The witness should be informed of those parts of the statement which are to be referred to contradict him. It is not enough to say whether a particular exhibit is his previous statement. It must also be pointed out, as my learned brother has done, that each statement of fact occurring in the previous statement of a witness, which is found to be inconsistent with the statement made by him in Court should be put separately and point by point to the witness and he be confronted with lis previous statement on those points so as to afford him an opportunity to explain the contradictions. The practice of putting a long statement to the witness containing several facts, or mere reading out the whole statement, may confuse the witness thus defeating the very purpose of the wholesome provision regarding confrontation contained in section 145 of the Evidence Act.

The Judge or the Magistrate concerned should take an intelligent interest in the matter, and while the witness is being questioned about his previous statement, he should peruse such statement not only to find out if there is any real contradiction but also to guard against the use of a stray sentence in the previous statement of a witness torn out of the context and the risk of its being given a colour or meaning different from that which is warranted by the context in which that sentence occurs in the original statement. It is to ensure that fair treatment to the witness and to promote the interests of justice that the proviso to sub-section (1) of section 162 of the Criminal Procedure Code lays down that when any part of the previous statement of a witness is used in the manner provided by section 145 of the Indian Evidence Act, "any part thereof may also be used in re-examination of such a witness but for the purpose of only explaining any matter referred to in his cross-examination."

Quite often a witness appearing at a trial or enquiry is questioned about the omissions in his previous statement. Obviously u/s 145 of the Evidence Act, a witness cannot be confronted with "unwritten record of an un-made statement," but sometimes an omission to state material point may amount to contradiction, and it is only such an omission that can be put to a witness u/s 145 of the Evidence Act. On discussion of the relevant provisions and the authorities, the legal position with regard to the use of a previous statement recorded u/s 161 of the Criminal Procedure Code has been summed up by Subba Rao J. (as he then was) delivering the majority judgment in Tahsildar Singh and Another Vs. The State of Uttar Pradesh, in these words:-

From the foregoing discussion the following propositions emerge: (1) A statement in writing made by a witness before a police officer in the course of investigation can be used only to contradict his statement in the witness-box and for no other purpose; (2) statements not reduced to writing by the police officer cannot be used for contradiction; (3) though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded cap be used for contradiction, not because it is an omission strictly so-called but because it is deemed to form part of the recorded statement; (4) such a fiction is permissible by construction only in the following three cases; (i) when a recital is necessarily implied from the recital or recitals found in the statement: illustration: in the recorded statement before the police the witness states that he saw A stabbing B at a particular point of time, but in the witness-box he says that he saw A and C stabbing B at the same point of time; in the statement before the police the word "only" can be implied i.e., the witness saw A only stabbing B (ii) a negative aspect of a positive recitals in a statement illustration in the recorded statement before the police the witness says that a dark man stadbed B, but in the witness-box he says that a fair man stabbed B; the earlier statement must be deemed to contain the recital not only that the culprit was a dark complexioned man but also that he was not of fair complexion; and (iii) when the statement before the police and that before the Court cannot stand together; illustration: the witness says in the recorded statement before the police that A after stabbing B ran away by a northern lane but in the Court he says that immediately after stabbing he ran away towards the southern lane; as he could not have run away immediately after the stabbing i.e., at the same point of time, towards the northern lane as well as towards the southern lane, if one statement is true the other must necessarily be false.

Sounding a note of caution, his Lordship further proceeded on to say:

The aforesaid examples are not intended to be exhaustive but only illustrative. The same.instance may fall under one or more heads. It is for the trial Judge to decide in each case, after comparing the part or parts of the statement recorded by the police with that made in the witness-box to give a ruling, having regard to the aforesaid principles, whether the recital intended to be used for contradiction satisfies, the requirements of law.

Though it is true that there can be no hard and fast rules as regard compliance with the requirements of section 145 of the Evidence Act, and all that is required is that the witness must be treated fairly and afforded a reasonable, opportunity of explaining the contradiction after his attention has been drawn to them in a fair and reasonable manner, the procedure indicated by us and which we have considered necessary to set out at length in view of the frequent disregard of the requirements of section 45 of the Evidence Act, will certainly help the Courts in ensuring fair trial and to avoid pitfalls and promote the ends of justice.

Before closing, I cannot help observing that the procedure adopted by the trial Court in making use of the statement of one of the prosecution witnesses recorded by the Committing Magistrate and transferring it to his record u/s 288 of the Criminal Procedure Code was also, improper. Since such a statement can be used as substantive evidence at the trial, great care should be taken to comply with requirements of section 288 of the Criminal Procedure Code. The subordinate Courts will greatly benefit by going through the Supreme Court decision in Tara Singh Vs. The State, wherein Bose J., speaking for the Court, summed up the legal position in these words:-

I hold that the evidence in the Committal Court cannot be used in the Sessions Court unless the witness is confronted with his previous statement as required by section 145, Evidence Act. Of course, the witness can be cross-examined about the previous statement and that cross-examination can be used to destroy his testimony in the Sessions Court. If that serves the purpose of the prosecution, then nothing more is required, but if the prosecution wishes to go further and use the previous testimony to the contrary as substantive evidence, then it must, in my opinion confront the witness with those parts of it which are to be used for the purpose of contradicting him. Then only can the matter be brought in as substantive evidence u/s 288.

In this view of the matter, His Lordship held that the statements of the witness recorded by the Committing Magistrate, who had not been confronted in the manner required u/s 145 of the Evidence Act would have to be ruled out of consideration.