Ram Charitra Singh vs Emperor

Reginald Roe, J.—In this case we are asked to set aside the conviction and sentences on two grounds, firstly, that the statements made before the Police in the course of the enquiry-have been used as substantive evidence in the case, and, secondly, that the Police diaries have been used for the purpose of impeaching a Crown witness or rather one who should have been examined as a Crown witness but was examined by the Court and not by the Crown.

The first argument seems to us to be based upon a misappreciation of the finding in the judgments of the Sub-Divisional Magistrate and the Sessions Judge. We are unable to find anywhere in the two judgments any use of the statements made as substantive evidence in the case.

The second argument is based upon section 162 of the Code of Criminal Procedure and it is urged that that section overrides the provisions of the Evidence Act, sections 155 and 157. The case quoted in support of this contention is Emperor Vs. Akbar Badu, . But even in that case Mr. Justice Heaton said that "it may be that what the witnesses said was admissible by way of corroboration within the terms of section 157 of the Evidence Act." All that he did protest against was the record being loaded with statements of this description and to that extent we are, if we may say so, in cordial agreement with him. Statements of witnesses made to the Police should not be used to corroborate them except in very special circumstances, but even in the case quoted there is no authority for the proposition that the evidence of a witness who is hostile to the Crown may not be impeached by reference to the Police diary. If in the course of the trial a witness is called upon to say that he saw the offence committed by the accused and when called upon says that the offence was committed by an entirely different person, it seems only fair that the Crown should be allowed to use the Evidence Act, section 155, to disabuse the Jury of the effect made by a willfully false statement. There is certainly nothing in section 162 to prevent this course being adopted, and, as we understand it, the section provides only for facilities to the accused to obtain copies of Police papers. The Legislature has not thought fit to make provision for equal Facilities to the prosecution, for the reason that the papers are always in the hands of the prosecution. I would reject this application and direct that the petitioners surrender to their bail and serve out the remainder of their sentences.

Ali Imam, J.

I agree. I would only wish to add that the contention of the learned Counsel that the statement made by Dhuku Singh before the Police was used in this case against the accused is not borne out by an examination of the judgments of the lower Courts. It appears that this man Dhuku Singh was called as a Court witness. The trying Magistrate called him as such, because it was alleged at a very early stage of the trial that Dhuku had been gained over by the defence. When examined in Court, he made statements that were inconsistent with the statements that he made before the Police in the course of the Police investigation. The subsequent appearance of the Sub-Inspector for examination on the point was as to whether he had or had not made these statements. It appears that this was done, not with a view to substantiate the offence against the accused, but to clear the doubt as to whether or not the prosecution was right in condemning this man Dukhu as a witness who had turned hostile since his examination by the Police. I have carefully considered the judgment of the trying Magistrate as also that of the learned Judge who heard the appeal, and I find that there is nothing in the two judgments to show that the statements made by Dhuku before the investigating officer have been used as evidence against the accused. On the contrary, I find in the judgment of the learned Judge who heard the appeal that these statements were used only for a certain purpose, and that was to ascertain the fact as to whether the allegation of the prosecution as to the hostility of Dhuku was established or not. In the circumstances the petition must be rejected.