iminal Appeal No 67 of 1958
Appeal by special leave from the judgment and order dated September 11 1957 of the Allahabad High Court in Criminal Appeal No 1388 of 1956 and Referred Trial No 133 of 1956 arising out of the judgment and order dated September 8 1956 of the Court of the Additional Sessions Judge at Etawah in Sessions Trial Nos 83 and 109 of 1955
Jai Gopal Sethi and R L Kohli for the appellants
section P Sinha GC Mathur and G N Dikshit for the respondent
May 5
The judgment of B P Sinha J L Kapur A K Sarkar and K Subba Rao JJ was delivered by K Subba Rao J and the judgment of Jafer Imam and M Hidayatullah JJ was delivered by M Hidayatullah J SUBBA RAO J
This appeal by special leave raises the question of construction of section 162 Code 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 Sanehi s neighbour Ram Sarup
About 35 or 40 guests assembled in front of Ram Sarup s platform to hear the music
The prosecution case is that a large number of persons armed with fire arms suddenly appeared near a well situated on the southern side of the house of Ram Sarup and 878 opened fire which resulted in the death of Natthi Bharat Singh and Saktu and injuries to six persons namely Hazari Bankey Khem Singh Bal Kishan Mizaji Lal and Nathu
The topography of the locality where the incident took place is given in the two site plans exhibit P 57 and exhibit 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 Sarup s house the audience were seated
The prosecution version of the sequence of events that took place on that fatal night is as follows After the dinner there was a music performance in front of the platform of Ram Sarup s house and a number of persons assembled there to hear the music
Saktu played on the Majeera while Nathu was singing
it was a full moon night and there were also a gas lamp and several lanterns
Bankey and Asa Ram placed their guns on a cot close to the platform and Bharat Singh was sitting on that cot
While Bankey was among the audience Asa Ram was still taking his dinner inside the house
At about 9 p m the accused along with 15 or 20 persons arrived from an eastern lane stood behind the well shouted that no one should run away and advanced northward from the well firing shots
Natthi and Saktu were hit and both of them died on the spot
Bharat Singh who was also hit ran northward and was pursued by some of the culprits and was shot dead in front of Bankey s house shown in the plan
Bankey who was also shot at and injured took up Asa Ram s gun and went up to the roof of Ram Sarup s house wherefrom he fired shots at the dacoits who were retreating
Asa Ram who was luckily inside the house taking his dinner ran up to the roof of Ram Sarup s house and saw the occurrence from over the parapet
The culprits turned over the dead bodies of Saktu Natthi and Bharat Singh and on seeing Bharat Singh s face they exclaimed that Asa Ram was killed
Thereafter they 879 proceeded northward passed through the corner of Ram Sarup s house and disappeared in the direction of the Chambal
They also carried away Bankey s gun which was on the cot
The motive for the offence is stated thus  The culprits were members of a notorious gang called the Man Singh s gang who it is alleged were responsible for many murders and dacoities in and about the aforesaid locality
That gang was in league with another gang known as Charna s gang operating in the same region
Asa Ram and Bankey had acted as informers against Charna s gang and this information led to the killing of Charna
Man Singh s gang wanted to take vengeance on the said two persons and having got the information that the said two persons would be at the music party on that fateful night they organized the raid with a view to do away with Asa Ram and Bankey
Out of the nine accused committed to the Sessions the learned Sessions Judge acquitted seven convicted Tahsildar Singh and Shyama Mallah under 14 charges and awarded them various sentences including the sentence of death
Before the learned Sessions Judge Tahsildar Singh took a palpably false plea that be was not Tahsildar Singh but was Bhanwar Singh and much of the time of the learned Sessions Judge was taken to examine the case of the prosecution that the accused was really Tahsildar Singh son of Man Singh
The other accused Shyama Mallah though made a statement before the Sub Divisional Magistrate admitting some facts which were only exculpatory in nature denied the commission of the offence before the committing Magistrate and before the learned Sessions Judge
As many as eight eyewitnesses described the events in detail and clearly stated that both the accused took part in the incident
When one of the witnesses Bankey P W 30 was in the witness box the learned Counsel for the accused put to him the following two questions in cross examination 1
 Did you state to the investigating officer that the gang rolled the dead bodies of Natthi Saktu and 880 Bharat Singh and scrutinized them and did you tell him that the face of Asa Ram resembled that of the deceased Bharat Singh  2
 Did you state to the investigating officer about the presence of the gas lantern  In regard to the first question the learned Sessions Judge made the following note  The cross examining Counsel was asked to show the law which entitles him to put this question
He is unable to show any law
1 therefore do not permit the question to be put unless I am satisfied
 In respect of the second question the following note is made  He is also unable to show any law entitling him to put this question
I will permit him to put it if he satisfies me about it
 It appears from the deposition that no other question on the basis of the statement made before the police was put to this witness
After his evidence was closed the learned Judge delivered a considered order giving his reasons for disallowing the said two questions
The relevant part of the order reads Therefore if there is no contradiction between his evidence in Court and his recorded statement in the diary the latter cannot be used at all
If a witness deposes in Court that a certain fact existed but had stated under section 161 Cr P C either that that fact had not existed or that the reverse and irreconcilable fact had existed it is a case of conflict between the deposition in the Court and the statement under section 161 Cr P C and the latter can be used to contradict the former
But if he had not stated under section 161 anything about the fact there is no conflict and the statement cannot be used to contradict him
In some cases an omission in the statement under section 161 may amount to contradiction of the deposition in Court they are the cases where what is actually stated is irreconcilable with what is omitted and impliedly negatives its existence
 It is enough to notice at this stage that the learned Sessions Judge did not by the said order rule that No 881 omission in the statement made under section 161 of the Code of Criminal Procedure can be put to a witness but stated that only an omission which is irreconcilable with what is stated in evidence can be put to a witness
The said two omissions were not put to any of the other witnesses except to one to whom only one of the said omissions was put
No other omissions were put in the cross examination either to P W 30 or to any other witness
The learned Sessions Judge on a consideration of the voluminous evidence in the case held that the guilt was brought home to the said two accused and convicted them as aforesaid
Tahsildar Singh and Shyama Mallah preferred two separate appeals to the High Court against their convictions and sentences
The two appeals were heard along with the reference made by the learned Sessions Judge under section 374 of the Code of Criminal Procedure for the confirmation of the sentence of death awarded to the appellants
The learned Judges of the High Court after reviewing the entire evidence over again accepted the findings of the learned Sessions Judge and con firmed the convictions and sentences passed on the appellants
Before the High Court a petition was filed by the appellants alleging that the learned Sessions Judge did not allow the Counsel for defence to put omissions amounting to material contradictions to the eye witnesses and therefore the said eye witnesses should be summoned so that the said questions might be put to them
That petition was filed on May 1 1957 and on July 30 1957 after the argument in the appeals was closed the petition was dismissed
Presumably no attempt was made to press this application either before the appeals were taken up for argument or during the course of the argument but the question raised in the petition was considered by the earned Judges of the High Court in their judgment
The judgment discloses that the learned Counsel appearing for the appellants argued before the High Court that the learned Sessions Judge wrongly disallowed the aforesaid two questions and the learned Judges conceding that those two questions should have been allowed held that the accused 882 were not prejudiced by the said fact
They justified their conclusion by the following reasons We did so because among other reasons we decided to ignore these two circumstances and to base our findings on matters of greater certainty namely the fact of the miscreants firing while advancing passing in front of Ram Swarup s platform and taking away Bankey s gun from the cot movements which brought them close to the eye witnesses and thereby gave the witnesses an unmistakable opportunity of seeing their faces in the light of the lanterns and the full moon
These factors made recognition by witnesses independent of any gas lantern or any scrutiny of the dead bodies so that these matters ceased to be of any real consequence and therefore made the summoning of the eye witnesses before us quite unnecessary 
In the result they dismissed the appeals
The present appeal is by special leave filed against the judgment of the High Court
Learned Counsel for the appellants raised before us the following points  1 a
Section 162 of the Code of Criminal Procedure by its own operation attracts the provisions of section 145 of the Evidence Act and under the latter section the whole vista of cross examination on the basis of the previous statement in writing made by the witnesses before the police is open to the accused  to illustrate the contention a witness can be asked whether he made a particular statement before the police officers if he says  yes  the said assertion can be contradicted by putting to him an earlier statement which does not contain such a statement
1 b
The word contradiction  is of such wide connotation that it takes in all material omissions and a Court can decide whether there is one such omission as to amount to contradiction only after the question is put answered and the relevant statement or part of it is marked and therefore no attempt should be made to evolve a workable principle but the question must be left at large to be decided by the Judge concerned on the facts of each case
2 The High Court erred in holding that only two questions were intended to be put in cross examination to the prosecution 883 witnesses whereas the Advocate for the accused in
tended to put to the witnesses many other omissions to establish that there was development in the prosecution case from time to time but refrained from doing so in obedience to the considered order made by the learned Sessions Judge
3 Even if only two questions were illegally disallowed as it was not possible to predicate the possible effect of the cross examination of the witnesses on the basis of their answers to the said questions on their reliability it should be held that the accused had no opportunity to have an effective cross examination of the witnesses and there
fore they had no fair trial
4 The learned Judges committed an illegality in testing the credibility of the witnesses other than the witness who gave the first information report by the contents of the said report
The arguments of the learned Counsel for the respondent in respect of each of the said contentions will be considered in their appropriate places
We shall proceed to consider the contentions of the learned Counsel for the appellants in the order in which they were addressed Re
1 a Diverse and conflicting views were expressed by Courts on the interpretation of section 162 of the Code of Criminal Procedure
A historic retrospect of the section will be useful to appreciate its content
The earliest Code is that of 1872 and the latest amendment is that of 1955
Formerly Criminal Procedure Code for Courts in the Presidency towns and those in the mofussil were not the same
Criminal Procedure Code 1882 10 of 1882 consolidated the earlier Acts and prescribed a uniform law to all Courts in India
It was superseded by Act 5 of 1898 and substantial changes were made by Act 18 of 1923
Since then the Code stands amended from time to time by many other Acts
The latest amendments were made by Act 26 of 1955 which received the assent of the President on August 10 1955 and by notification issued by the Central Government its provisions came into force on and from January 1 1956
We are not concerned in this case with the Amending Act of 1955 but only with the Act as it stood before the amendment of 1955
884 In Act 10 of 1872 the section corresponding to the present section 162 was section 119 which read  An officer in charge of a Police station or other Police officer making an investigation may examine orally any person supposed to be acquainted with the facts and circumstances of the case and may reduce into writing any statement made by the person so examined
Such person shall be bound to answer all questions relating to such case put him by such officer other than questions criminating himself
No statement so reduced into writing shall be signed by the person making it nor shall it be
treated as part of the record or used as evidence
 This section enables a police officer to elicit information from persons supposed to be acquainted with facts and permits him to reduce into writing the answers given by such persons but excludes the said statement from being treated as part of the record or used as evidence
Act 10 of 1882 divided the aforesaid section 119 into two sections and numbered them as sections 161 and 162 which read section 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
 section 162  No statement other than a dying declaration made by any person to a Police officer in the course of an investigation under this chapter shall if reduced to writing be signed by the person making it or be used as evidence against the accused
Nothing in this section shall be deemed to affect the provisions of section 27 of the  The first two paragraphs of section 119 of Act 10 of 1872 with slight modifications not relevant for the present 885 purpose constituted the corresponding paragraphs of section 161 of Act 10 of 1882 and the third paragraph of section 119 of the former Act with some changes was made section 162 of the latter Act
There was not much difference between the third paragraph of section 119 of the Act of 1872 and section 162 of the Act of 1882 except that in the latter Act it was made clear that the prohibition did not apply to a dying declaration or affect the provisions of section 27 of the The Code of 1898 did not make any change in section 161 nor did it introduce any substantial change in the body of section 162 except taking away the exception in regard to the dying declaration from it and putting it in the second clause of that section
But section 162 was amended by Act 5 of 1898 and the amended section read   1 No statement made by any person to a police officer in the course of an investigation under this Chapter shall if taken down in writing be signed by the person making it nor shall such writing be used as evidence Provided that when any witness is called for the prosecution whose statement has been taken down in writing as aforesaid the Court shall on the request of the accused refer to such writing and may then if the Court thinks it expedient in the interests of justice direct that the accused be furnished with a copy thereof  and such statement may be used to impeach the credit of such witness in manner provided by the 
2 Nothing in this section shall be deemed to apply to any statement falling within the provisions of section 32 clause 1 of the 
 For the first time the proviso to section 162 introduced new elements namely i The right of the accused to request the Court to refer to the statement of a witness reduced to writing ii a duty cast on the Court to refer to such writing iii discretion conferred on the Court in the interests of justice to direct that the accused be furnished with a copy of the statement and iv demarcating the field within which such 886 statements can be used namely to impeach the credit of the witness in the manner provided by the 
From the standpoint of the accused this was an improvement on the corresponding sections of the earlier Codes for whereas the earlier Codes enacted a complete bar against the use of such statements in evidence this Code enabled the accused subject to the limitations mentioned therein to make use of then to impeach the credit of a witness in the manner provided by the 
On the basis of the terms of section 162 of Act 5 of 1896 two rival contentions were raised before the Courts
It was argued for the prosecution that on the strength of section 157 of the Evidence Act the right of the prosecution to prove any oral statement to contradict the testimony of any witness under that section was not taken away by section 162 of the Code of Criminal Procedure which only provided that the writing shall not be used as evidence
On the other hand it was contended on behalf of the accused that when the statement of a witness was admittedly reduced into writing it would be unreasonable to allow any oral evidence of the statement to be given when the writing containing the statement could not be proved
The judgment of Hosain J in the case of Rustam vs King Emperor 1 and the decisions in Fanindra Nath Banerjee vs Emperor 2 King Emperor vs Nilakanta 3 and Muthukumaraswami Pillai vs King Emperor  4 represent one side of the question and the judgment of Knox J in Rustam vs King Emperor 1 and the observations of Beaman J in Emperor vs Narayan 5 represent the other side
A division Bench of the Bombay High Court in Emperor vs Hanmaraddi Bin Ramaraddi 6 after noticing the aforesaid decisions on the question ruled that the police officer could be allowed to depose to what the witness had stated to him in the investigation for the purpose of corroborating what the witness had said at the trial
In that context Shah J observed at p 66 1 3 5 1907 32 Bo  111 2 4 6 1915 39 Bo  58
8S7 The point is not free from difficulty which is sufficiently reflected in the diversity of judicial opinions bearing on the question
 Presumably in view of the aforesaid conflict to make the legislative intention clear the section was amended by Act 18 of 1923
Section 162 as amended by the aforesaid Act reads  1 No statement made by any person to a police officer in the course of an investigation under this Chapter shall if reduced into writing be signed by the person making it nor shall any such statement or any record thereof whether in a police diary or otherwise or any part of such statement or record be used for any purpose save as hereinafter provided at any inquiry or trial in respect of any offence under investigation at the time when such statement was made Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid the Court shall on the request of the accused refer to such writing and direct that the accused be furnished with a copy thereof in order that any part of such statement if duly proved may be used to contradict such witness in the manner provided by section 145 of the 
When any part of such statement is so used any part thereof may also be used in the reexamination of such witness but for the purpose only of explaining any matter referred to in his cross examination Provided further that if the Court is of opinion that any part of any such statement is not relevant to the subject matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interests it shall record such opinion but not the reasons therefore and shall exclude such part from the copy of the statement furnished to the accused
 Sub section 1 of the substituted section attempted to steer clear of the aforesaid conflicts and avoid other difficulties by the following ways a Prohibited the use of the statement both oral and that reduced into 888 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  the new section enabled him only to use it to contradict the witness in the manner provided by section 145 of the said Act c the said statement could also be used for the purpose of only explaining any matter referred to in his cross examination and d while under the old section a discretion was vested in the Court in the matter of furnishing the accused with a copy of an earlier statement of a prosecution witness under the amended section subject to the second proviso a duty was cast upon the Court if a request was made to it by the accused to direct that the accused be furnished with a copy thereof
The effect of the amendment was that the loopholes which enabled the use of the statement made before the police in a trial were plugged and the only exception made was to enable the accused to use the statement of a witness reduced into writing for a limited purpose namely in the manner provided by section 145 of the  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  under the said Act the credit of a witness could be impeached either under section 145 or under section 1553
While the former section enables a witness to be cross examined as to a previous statement made by him in writing without such writing being shown to him the latter section permits the discrediting of the witness by proof of his previous statement by independent evidence
If a statement in writing could be used to discredit a witness in the manner provided by those two sections the purpose of the Legislature would be defeated
Presumably in realisation of this unexpected consequence the Legislature in the amendment made it clear that the said statement can only be used to contradict a 889 witness in the manner provided by section 145 of the Evidence Act
By Act 2 of 1945 the following sub section 3 was added to section 161  The police officer may reduce into writing any statement made to him in the course of an examination under this section and if he does so he shall make a separate record of the statement of each such person whose statement he records
 This subsection restored the practice obtaining before the year 1923 with a view to discourage the practice adopted by some of the police officers of taking a condensed version of the statements of all the witnesses or a precise of what each witness said
It is not necessary to notice in detail the changes made in section 162 by Act 26 of 1955 except to point out that under the amendment the prosecution is also allowed to use the statement to contradict a witness with the permission of the Court and that in view of the shortened committal procedure prescribed copies of the statements of the prosecution witnesses made before the police during investigation are made available by the police to the accused before the commencement of the inquiry or trial
The consideration of the provisions of the latest amending Act need not detain us for the present case falls to be decided 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 confine it only 112 890 to contradict the witness in the manner provided under section 145 of the Evidence Act
If one could guess the intention of the legislature in framing the section in the manner it did in 1923 it would be apparent that it was to protect the accused against the user of the statements of witnesses made before the police during investigation at the trial presumably on the assumption that the said statements were not made under circumstances inspiring confidence
Both the section and the proviso intended to serve primarily the same purpose ie the interest of the accused
Braund J in Emperor vs Aftab Mohd Khan 1 gave the purpose of section 162 thus at p 299  As it seems to us it is to protect accused persons from being prejudiced by statements made to police officers who by reason of the fact that an investigation is known to be on foot at the time the statement is made may be in a position to influence the maker of it and on the other hand to protect accused persons from the prejudice at the hands of persons who in the knowledge that an investigation has already started are prepared to tell untruths
 A division Bench of the Nagpur High Court in Baliram Tikaram Marathe vs 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 Committee in Pakala Narayana Swami vs The King Emperor 3 found another object underlying the section when they said at p 78 If one had to guess at the intention of the Legislature in framing a section in the words used one would suppose that they had in mind to encourage the free disclosure of information or to protect the person making the statement from a supposed unreliability of police testimony as to alleged statements or both
Section 162 with its proviso if construed in the 1 AI R 1940 All 291
2 AIR 1945 Nag 1
3 1939 LR 66 I A 66
891 manner which we will indicate at the later stage of the judgment clearly achieves the said objects
The learned Counsel s first argument is based upon the words  in the manner provided by section 145 of the  found in section 162 of the Code of Criminal Procedure
Section 145 of the Evidence Act it is said empowers the accused to put all relevant questions to a witness before his attention is called to those parts of the writing with a view to contradict him
In support of this contention reliance is placed upon the judgment of this Court in Bhagwan Singh vs The State of Punjab 1
Bose J describes the procedure to be followed to contradict a witness under section 145 of the Evidence Act thus at p 819  Resort to section 145 would only be necessary if the witness denies that he made the former statement
In that event it would be necessary to prove that he did and if the former statement was reduced to writing then section 145 requires that his attention must be drawn to those parts which are to be used for contradiction
But that position does not arise when the witness admits the former statement
In such a case all that is necessary is to look to the former statement of which no further proof is necessary because of the admission that it was made
 It is unnecessary to refer to other cases wherein a similar procedure is suggested for putting questions under section 145 of the  for the said decision of this Court and similar decisions were not considering the procedure in a case where the statement in writing was intended to be used for contradiction under section 162 of the Code of Criminal Procedure
Section 145 of the Evidence Act is in two parts the first part enables the accused to cross examine a witness as to previous statement made by him in writing or reduced to writing to without such writing being shown to him the second part deals with a situation where the cross examination assumes the shape of contradiction  in other words both parts deal with cross examination the first part with cross examination other than by way of contradiction and the 1  892 second with cross examination by way of contradiction only
The procedure prescribed is that if it is intended to contradict a witness by the writing his attention must before the writing can be proved be called to those parts of it which are to be used for the purpose of contradicting him
The proviso to section 162 of the Code of Criminal Procedure only enables the accused to make use of such statement to contradict a witness in the manner provided by section 145 of the Evidence Act
It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross examining a witness within the meaning of the first part of section 145 of the Evidence Act
Nor are we impressed by the argument that it would not be possible to invoke the second part of section 145 of the Evidence Act without putting relevant questions under the first part thereof
The difficulty is more imaginary than real
The second part of section 145 of the Evidence Act clearly indicates the simple procedure to be followed
To illustrate A says in the witness box that B stabbed C  before the police he bad stated that D stabbed C His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness box
If he admits his previous statement no further proof is necessary if he does not admit the practice generally followed is to admit it subject to proof by the police officer
On the other hand the procedure suggested by the learned Counsel may be illustrated thus If the witness is asked  did you say before the police officer that you saw a gas light   and he answers  yes  then the statement which does not contain such recital is put to him as contradiction
This procedure involves two fallacies one is it enables the accused to elicit by a process of cross examination what the witness stated before the police officer
If a police officer did not make a record of a witness s statement his entire statement could not be used for any purpose whereas if a police officer recorded a few sentences by this process of cross examination the witness s oral statement could be brought on record
This procedure 893 therefore contravenes the express provision of section 162 of the Code
The second fallacy is that by the illustration given by the learned Counsel for the appellants there is no self contradiction of the primary statement made in the witness box for the witness has yet not made on the stand any assertion at all which can serve as the basis
The contradiction under the section should be between what a witness asserted in the witness box and what he stated before the police officer and not between what he said he had stated before the police officer and what he actually made before him
In such a case the question could not be put at all only questions to contradict can be put and the question here posed does not contradict it leads to an answer which is contradicted by the police statement
This argument of the learned Counsel based upon section 145 of the Evidence Act is therefore not of any relevance in considering the express provisions of section 162 of the Code of Criminal Procedure
This leads us to the main question in the case ie the interpretation of section 162 of the Code of Criminal Procedure
The cardinal rule of construction of the provisions of a section with a proviso is succinctly stated in Maxwell s Interpretation of Statutes 10th Edn at p 162 thus  The proper course is to apply the broad general rule of construction which is that a section or enactment must be construed as a whole each portion throwing light if need be on the rest
The true principle undoubtedly is that the sound interpretation and meaning of the statute on a view of the enacting clause saving clause and proviso taken and construed together is to prevail Unless the words are clear the Court should not so construe the proviso as to attribute an intention to the legislature to give with one hand and take away with another
To put it in other words a sincere attempt should be made to reconcile the enacting clause and the proviso and to avoid repugnancy between the two
As the words in the section declare the intention of the legislature we shall now proceed to construe the 894 section giving the words used therein their natural and ordinary sense
The object of the main section as the history of its legislation shows and the decided cases indicate is to impose a general bar against the use of statement made before the police and the enacting clause in clear terms says that no statement made by any person to a police officer or any record thereof or any part of such statement or record be used for any purpose
The words are clear and unambiguous
The proviso engrafts an exception on the general prohibition and that is the said statement in writing may be used to contradict a witness in the manner provided by section 145 of the Evidence Act
We have already noticed from the history of the section that the enacting clause was mainly intended to protect the interests of accused
At the stage of investigation statements of witnesses are taken in a haphazard manner
The police officer in the course of his investigation finds himself more often in the midst of an excited crowd and label of voices raised all round
In such an atmosphere unlike that in a Court of Law be is expected to hear the statements of witnesses and record separately the statement of each one of them
Generally he records only a summary of the statements which appear to him to be relevant
These statements are therefore only a summary of what a witness says and very often perfunctory
Indeed in view of the aforesaid facts there is a statutory prohibition against police officers taking the signature of the person making the statement indicating thereby that the statement is not intended to be binding on the witness or an assurance by him that it is a correct statement
At the same time it being the earliest record of the statement of a witness soon after the incident any contradiction found therein would be of immense help to an accused to discredit the testimony of a witness making the statement
The section was therefore conceived in an attempt to find a happy via media namely while it enacts an absolute bar against the statement made before a police officer being used for any purpose whatsoever it enables the accused to rely 895 upon it for a limited purpose of contradicting a witness in the manner provided by section 145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction
It cannot be used for corroboration of a prosecution or a defence witness or even a Court witness
Nor can it be used for contradicting a defence or a Court witness
Shortly stated there is a general bar against its use subject to a limited exception in the interest of the accused and the exception cannot obviously be used to cross the bar
If the provisions of the section are construed in the aforesaid back ground much of the difficulty raised disappears
Looking at the express words used in tile section two sets of words stand out prominently which afford the key to the intention of the legislature
They are   statement in writing  and  to contradict 
 Statement  in its dictionary meaning is the act of stating or reciting
Prima facie a statement cannot take in an omission
A statement cannot include that which is not stated
But very often to make a statement sensible or self consistent it becomes necessary to imply words which are not actually in the statement
Though something is not expressly stated it is necessarily implied from what is directly or expressly stated
To illustrate  A  made a statement previously that he saw  B  stabbing  C  to death but before the Court he deposed that he saw B  and D  stabbing  C  to death the Court can imply the word only  after  B  in the statement before the police
Sometimes a positive statement may have a negative aspect and a negative one a positive aspect
Take an extreme example  if a witness states that a man is dark it also means that he is not fair
Though the statement made describes positively the colour of a skin it is implicit in that statement itself that it is not of any other colour
Further there are occasions when we come across two statements made by the same person at different times and both of them cannot stand or co exist
There is an inherent repugnancy between the two and therefore if one is true the other must be false
On one occasion a person says 896 that when he entered the room he saw  A  shooting B  dead with a gun on another occasion the same person says that when he entered the room he saw C  stabbing  B  dead  both the statements obviously cannot stand together for if the first statement is true the second is false and vice versa
The doctrine of recital by necessary implication the concept of the negative or the positive aspect of the same recital and the principle of inherent repugnancy may in one sense rest on omissions but by construction the said omissions must be deemed to be part of the statement in writing
Such omissions are not really omissions strictly so called and the statement must be deemed to contain them by implication
A statement therefore in our view not only includes what is expressly stated therein but also what is necessarily implied therefrom
 Contradict  according to the Oxford Dictionary means to affirm to the contrary
Section 145 of the Evidence Act indicates the manner in which contradiction is brought out
The cross examining Counsel shall put the part or parts of the statement which affirms the contrary to what is stated in evidence
This indicates that there is something in writing which can be set against another statement made in evidence
If the statement before the police officer in the sense we have indicated and the statement in the evidence before the Court are so inconsistent or irreconcilable with each other that both of them cannot co exist it may be said that one contradicts the other
It is broadly contended that a statement includes all omissions which are material and are such as a witness is expected to say in the normal course
This contention ignores the intention of the legislature expressed in section 162 of the Code and the nature of the non evidentiary value of such a statement except for the limited purpose of contradiction
Unrecorded statement is completely excluded
But recorded one is used for a specified purpose
The record of a statement however perfunctory is assumed to give a sufficient guarantee to the correctness of the statement made but if words not recorded are brought in by some fiction the object of the section would be 897 defeated
By that process if a part of a statement is recorded what was not stated could go in on the sly in the name of contradiction whereas if the entire statement was not recorded it would be excluded
By doing so we would be circumventing the section by ignoring the only safeguard imposed by the legislature viz that the statement should have been recorded
We have already pointed out that under the amending Act of 1955 the prosecution is also allowed to use the statement to contradict a witness with the permission of the Court
If construction of the section as suggested by the learned Counsel for the appellants be accepted the prosecution would be able to bring out in the cross examination facts stated by a witness before a police officer but not recorded and facts omitted to be stated by him before the said officer
This result is not decisive on the question of construction but indicates the unexpected repercussions of the argument advanced to the prejudice of the accused
As section 162 of the Code of Criminal Procedure enables the prosecution in the reexamination to rely upon any part of the statement used by the defence to contradict a witness it is contended that the construction of the section accepted by us would lead to an anomaly namely that the accused cannot ask the witness a Single question which does not amount to contradiction whereas the prosecution taking advantage of a single contradiction relied upon by the accused can reexamine the witness in regard to any matter referred to in his cross examination whether it amounts to a contradiction or not
I do not think there is any anomaly in the situation
Section 145 of the Evidence Act deals with cross examination in respect of a previous statement made by the witness
One of the modes of cross examination is by contradicting the witness by referring him to those parts of the writing which are inconsistent with his present evidence
Section 162 while confining the right to the accused to cross examine the witness in the said manner enables the prosecution to reexamine the witness to explain 113 898 the matters referred to in the cross examination
This enables the prosecution to explain the alleged contradiction by pointing out that if a part of the statement used to contradict be read in the context of any other part it would give a different meaning and if so read it would explain away the alleged contradiction
We think that the word  cross examination  in the last line of the first proviso to section 162 of the Code of Criminal Procedure cannot be understood to mean the entire gamut of cross examination without reference to the limited scope of the proviso but should be confined only to the cross examination by contradiction allowed by the said proviso
The conflict of judicial opinion on this question is reflected in the decisions of different High Courts in this country
One of the views is tersely put by Burn J in In re Ponnusami Chetty 1 at p 476 Whether it is considered as a question of logic or language  omission  and  contradiction  can never be identical
If a proposition is stated any contradictory proposition must be a statement of some kind whether positive or negative
To  contradict  means to  speak against  or in one word to  gainsay 
It is absurd to say that you can contradict by keeping silence
Silence may be full of significance but it is not  diction  and therefore it cannot be  contradiction Considering the provisions of section 145 of the Evidence Act the learned Judge observed thus at p 477  It would be in my opinion sheer misuse of words to say that you are contradicting a witness by the writing when what you really want to do is to contradict him by pointing out omissions from the writing
I find myself in complete agreement with the learned Sessions Judge of Ferozepore who observed that  a witness cannot be confronted with the unwritten record of an unmade statement 
 The learned Judge gives an illustration of a case of apparent omission which really is a contradiction ie a case where a witness stated under section 162 of the Code that he saw three persons beating a man and later 1 Mad
475 899 stated in Court that four persons were beating the same man
This illustration indicates the trend of the Judge s mind that he was prepared to treat an omission of that kind as part of the statement by necessary implication
A Division Bench of the Madras High Court followed this judgment in In re Guruva Vannan 1
In that judgment Mockett J made the following observation at p 901   I respectfully agree with the judgment of Burn J in Ponnuswamy Chetty vs Emperor 2 in which the learned Judge held that a statement under section 162 of the Code of Criminal Procedure cannot be filed in order to show that a witness is making statements in the witness box which he did not make to the police and that bare omission cannot be a contradiction
The learned judge points out that whilst a bare omission can never be a contradiction a so called omission in a statement may sometimes amount to a contradic tion for example when to the police three persons are stated to have been the criminals and later at the trial four are mentioned
 The Allahabad High Court in Ram Bali vs State expressed the principle with its underlying reasons thus at p 294  Witness after witness was cross examined about certain statements made by him in the deposition but not to be found in his statement under section 162 Criminal P C A statement recorded by the police under section 162 can be used for one purpose and one purpose only and that of contradicting the witness
Therefore if there is no contradiction between his evidence in Court and his recorded statement in the diary the latter cannot be used at all
If a witness deposes in Court that a certain fact existed but had stated under section 162 either that fact had not existed or that the reverse and irreconcilable fact had existed it is a case of conflict between the deposition in the Court and the statement under section 162 and the latter can be used to contradict the former
But if he had not stated under section 162 anything about the fact there is no conflict and the 1 ILR 2 Mad
3 AIR 1952 All 280
900 statement cannot be used to contradict him
In some cases an omission in the statement under section 162 may amount to contradiction of the deposition in Court they are the cases where what is actually stated is irreconcilable with what is omitted and impliedly negatives its existence
 At a later stage of the judgment the learned Judges laid down the following two tests to ascertain whether a particular omission amounts to contradiction i an omission is not a contradiction unless what is actually stated contradicts what is omitted to be said and ii the test to find out whether an omission is contradiction or not is to see whether one can point to any sentence or assertion which is irreconcilable with the deposition in the Court
The said observations are in accord with that of the Madras High Court in In re Guruva Vannan 1
The Patna High Court in Badri Chaudhry vs King Emperor 2 expressed a similar view
At p 22 Macpherson J analysing section 162 of the Code of Criminal Procedure after its amendment in 1923 observed   The first proviso to section 162 1 makes an exception in favour of the accused but it is an exception most jealously circumscribed under the proviso itself  Any part of such statement  which has been reduced to writing may in certain limited circumstances be used to contradict the witness who made it
The limitations are strict 1 Only the statement of a prosecution witness can be used and 2 only if it has been reduced to writing  3 only a part of the statement recorded can be used  4 such part must be duly proved  5 it must be a contradiction of the evidence of the witness in Court 6 it must be used as provided in section 145 Evidence Act that is it can only be used after the attention of the witness has been drawn to it or to those parts of it which it is intended to use for the purpose of contradiction and there are others
Such a statement which does not contradict the testimony of the witness cannot be proved in any circumstances and it is not permissible to use the recorded statement as a whole to show that the witness did not say something to the investigating officer 1 ILR 2 AIR 1926 Pat
20 901 In Sakhawat vs Crown 1 much to the same effect was stated at p 284  The section section 162 provides that such statements can be used only for the purpose of contradiction
Contradiction means the setting up of one statement against another and not the setting up of a statement against nothing at all
An illustration would make the point clear
If a witness in Court says I saw A running away  he may be contradicted under section 162 by his statement to the police I did not see A running away 
But by proving an omission what the learned Counsel contradicts is not the statement I saw A running away  but the statement I stated to the police that I saw  A running away 
As section 162 does not allow the witness to depose  I stated to the police that I saw A running away  it follows that there can be no basis for eliciting the omission
Our argument is further fortified by the use of the words  any part of such statement    may be used to contradict
 It is not said that whole statement may be used
But in order to prove an omission the whole statement has to be so used as has been done in the present case
The contrary view is expressed in the following proposition  An omission may amount to Contradiction if the matter omitted was one which the witness would have been expected to mention and the Sub Inspector to make note of in the ordinary course
Every detail is expected to be noted
 This proposition if we may say so couched in wide phraseology enables the trial Judge to put into the mouth of a witness things which he did not state at an earlier stage and did not intend to say oil purely hypothetical considerations
The same idea in a slightly different language was expressed by Bhargava and Sahai JJ in Rudder vs The State 2 at p 240  There are however certain omissions which amount to contradictions and have been treated as such by this Court as well as other Courts in this country
Those are omissions relating to facts which 1 ILR 2 AIR 1957 All
902 are expected to be included in the statement before the police by a person who is giving a narrative of what he saw on the ground that they relate to important features of the incident about which the deposition is made
 A similar view was expressed in Mohinder Singh vs Emperor 1 Yusuf Mia vs Emperor 2 and State of M P vs Banshilal Behari 3
Reliance is placed by the learned Counsel for the appellants on a statement of law found in  Wigmore on Evidence  Vol
III 3rd Edn at p 725
In discussing under the head  what amounts to a Self contradiction  the learned author tersely describes a self contradiction in the following terms   it is not a mere difference of statement that suffices nor yet is an absolute oppositeness essential it is an inconsistency that is required
 The learned author further states at p 733   A failure to assert a fact when it would have been natural to assert it amounts in effect to an assertion of the non existence of the fact The said statement is no doubt instructive but it cannot be pressed into service to interpret the provisions of section 162 of the Code of Criminal Procedure
In America there is no provision similar to section 162 of the Code
It is not therefore permissible or even possible to interpret the provisions of a particular Act having regard to stray observations in a text book made in a different context
It is not necessary to multiply cases
The two conflicting views may be briefly stated thus i omissions unless by necessary implication be deemed to be part of the statement cannot be used to contradict the statement made in the witness box and ii they must be in regard to important features of the incident which are expected to be included in the statement made before the police
The first proposition not only carries out the intention of the legislature but is also in accord with the plain meaning of the words used in the section
The second proposition not only stretches 1 AIR 1932 Lah
2 AIR 1938 Pat
3 AIR 1936 MP 13
903 the meaning of the word  statement  to a breaking point but also introduces an uncertain element namely ascertainment of what a particular witness would have stated in the circumstances of a particular case and what the police officer should have recorded
When the section says that the statement is to be used to contradict the subsequent version in the witness box the proposition brings in by construction what he would have stated to the police within the meaning of the word  statement 
Such a construction is not permissible
From the foregoing discussion the following propositions emerge 1 A statement in writing made by a witness before a police officer in the course of investigation can be used only to contradict his statement in the witness box and for no other purpose 2 statements not reduced to writing by the police officer cannot be used for contradiction 3 though a particular statement is not expressly recorded a statement that can be deemed to be part of that expressly recorded can be used for contradiction not because it is an omission strictly so called but because it is deemed to form part of the recorded statement 4 such a fiction is permissible by construction only in the following three cases i when a recital is necessarily implied from the recital or recitals found in the statement  illustration in the recorded statement before the police the witness states that he saw A stabbing B at a particular point of time but in the witness box he says that he saw A and C stabbing B at the same point of time in the statement before the police the word  only  can be implied ie the witness saw A only stabbing B ii a negative aspect of a positive recital in a statement illustration in the recorded statement before the police the witness says that a dark man stabbed B but in the witness box he says that a fair man stabbed B the earlier statement must be deemed to contain the recital not only that the culprit was a dark complexioned man but also that be was not of fair complexion and iii when the statement before the police and that before the Court cannot stand together illustration the witness says in the recorded 904 statement before the police that A after stabbing B ran away by a northern lane but in the Court he says that immediatly after stabbing he ran away towards the southern lane as he could not have run away immediately after the stabbing ie at the same point of time towards the northern lane as well as towards the southern lane if one statement is true the other must necessarily be false
The aforesaid examples are not intended to be exhaustive but only illustrative
The same instance may fall under one or more heads
It is for the trial Judge to decide in each case  after comparing the part or parts of the statement recorded by the police with that made in the witness box to give a ruling having regard to the aforesaid principles whether the recital intended to be used for contradiction satisfies the requirements of law
The next point is what are the omissions in the statement before the police which the learned Sessions Judge did not allow the accused to put to the witnesses for contradicting their present version
The learned Counsel for the appellants contends that the accused intended to put to the witnesses the following omissions but they did not do so as the learned Sessions Judge disallowed the two questions put to P W 30 and made a considered order giving his reasons for doing so and that the learned Counsel thought it proper not to put the same questions or other questions in regard to omissions to P W 30 or to the other witnesses that followed him
The said omissions are 1 The warning by the members of the gang on their arrival to the audience at the music party not to stir from their places 2 the presence of a gas lantern3 the chase of Bharat Singh by the assailants 4 the scrutiny of the dead bodies by the gang and 5 the return of the gang in front of the house of Bankey
The learned Counsel for the respondent contests this fact and argues that only two omissions namely the presence of a gas lantern and the scrutiny of the dead bodies by the gang were put in the cross examination of P W 30 and no other omissions were put to him or any other witness and that indeed the order 905 of the learned Sessions Judge did not preclude him from putting all the omissions to the witnesses and taking the decision of the Judge on the question of their admissibility
He further contends that even before the learned Judges of the High Court the Advocate for the appellants only made a grievance of hi not having been allowed to put the aforesaid two omissions and did not argue that he intended to rely upon other omissions but did not do so as he thought that the learned Sessions Judge would disallow them pursuant to his previous order
Before the High Court an application was filed for summoning eight eye witnesses on the ground that the learned Sessions Judge did not allow the Counsel for defence to put the omissions amounting to material contradiction to them but no mention was made in that application of the number of omissions which the accused intended to put to the eye witnesses if they were summoned
That application was filed on May 1 1957 but no attempt was made to get a decision on that application before the arguments were heard
Presumably the Court as well as the parties thought that the application could more conveniently be disposed of after hearing the arguments
On July 30 1957 1 after the appellants were fully heard that application was dismissed and the detailed reasons for dismissing it were given in the judgment which was delivered on September 11 1957
The judgment of the learned Judges of the High Court clearly indicates that what was argued before them was that two omissions sought to be put to P W 30 were disallowed and therefore the accused did not put the said omissions to the other witnesses
It was not contended on behalf of the accused that other omissions were intended to be used for contradiction but were not put to the witnesses as the Advocate thought that in view of the order of the learned Sessions Judge they would not be allowed automatically
The learned Judges held that the said two omissions amounted to material contradiction and that the learned Sessions Judge was wrong in disallowing them but they ignored those 114 906 two circumstances and based their findings on matters of greater certainty
If really the Judges had made a mistake in appreciating the arguments of the learned Counsel for the appellants in the context of omissions one would expect the accused to mention the said fact prominently in their application for special leave
Even if they omitted to mention that fact in the application for special leave they could have filed an affidavit sworn to by the Advocate who appeared for them before the learned Judges of the High Court mentioning the fact that in spite of the argument specifically directed to the other omissions the learned Judges by mistake or over sight failed to notice that argument
The learned Counsel who argued before us did not argue before the High Court and therefore obviously he is not in a position to assert that the Judges committed a mistake in omitting to consider the argument advanced before them
But he made strenuous attempts before us to persuade us to hold that there must have been a mistake
He would say that the learned Counsel had in fact relied upon all the aforesaid omissions in support of his contention that there was development of the case of the prosecution from time to time and therefore he must have also relied upon the said omissions in the context of the statements made under section 162 of the Code of Criminal Procedure on the other hand the fact that the learned Judges considered all the alleged omissions in connection with the said contention and only considered two omissions in regard to the contention based on section 162 of the Code is indicative of the fact that the learned Counsel for reasons best known to him did not think fit to rely upon all the alleged omissions
The deposition of PW 30 also shows that only two omissions in the statement before the police viz the existence of a gas lantern and the scrutiny of the dead bodies by the gang were put to him in cross examination and the learned Sessions Judge disallowed those questions on the ground that the learned Counsel was not able to how any law entitling him to put the said questions
Though the witness was exa mined at some length no other alleged omissions in 907 the statement before the police were sought to be put to him
It would be seen from the short order made by the learned Sessions Judge at the time each one of the two questions were put that the learned Sessions Judge did not give a general ruling that no omissions in a statement before the police could be put to a witness
The rulings were given having regard to the nature of the omissions relied upon
But after the entire evidence of P W 30 was closed the learned Sessions Judge gave a considered order
Even in that order he did not rule out all omissions as inadmissible but clearly expressed the view that if what was stated in the witness box was irreconcilable with what was omitted to be stated in the statement it could go in as material contradiction
Even after this order it was open to the appellants to bring out all such omissions but no attempt was made by them to do go
These circumstances also support the impression of the learned Judges of the High Court that what was argued before them was only in respect of the two specified omissions put to P W 30 in his cross examination
We therefore hold that only two omissions relating to the existence of the gas lantern and the scrutiny of the faces of the deceased by the appellants were put to P W 30 and were intended to be put to the other witnesses but were not so done on the basis of the ruling given by the Court
Would those two omissions satisfy the test laid down by us  The witness stated in the Court that there was a gas lamp and that some of the miscreants scrutinised the faces of the dead bodies
In their statements before the police they did not mention the said two facts and some of the witnesses stated that there were lanterns
Taking the gas lamp first the scene of occurrence was not a small room but one spread over from the well to Bankey s house
From that omission in the statement it cannot necessarily be implied that there was no gas lamp in any part of the locality wherein the incident took place nor can it be said that as the witnesses stated that there were lanterns they must be deemed to have stated that there was no gas lamp for the word  lantern is 908 comprehensive enough to take in a gas lantern
It is also not possible to state that the statements made before the police and those made before the Court cannot co exist for there is no repugnancy between the two as even on the assumption that lantern excludes a gas lantern both can exist in the scene of occurrence
The same can be said also about the scrutiny of the faces of the dead bodies
In the statements before the police the movements of the appel lants were given
It was stated that they shot at the people and decamped with the gun of Bharat Singh
The present evidence that in the course of their pursuit they looked at the faces of two of the dead bodies does not in any way contradict the previous versions for the said incident would fit in with the facts contained in the earlier statements
The appellants could have shot at the audience pursued them taken the gun of Bharat Singh and on their way scrutinised the dead bodies
The alleged omission does not satisfy any of the principles stated by us
In this view it is unnecessary to express our opinion on the question whether if the said two omissions amounted to contradiction within the meaning of section 162 of the Code of Criminal Procedure the appellants were in any way prejudiced in the matter of their trial
The last contention of the learned Counsel for the appellants is that the learned Judges of the High Court acted illegally in testing the veracity of the witnesses with reference to the contents of the first information report
A perusal of the judgment of the High Court shows that the Advocate for the appellants contended before them inter alia that the witnesses should not be believed as their present version was inconsistent with the first information report
The learned Judges assumed that the said process was permissible and even on that assumption they rejected the plea of the learned Counsel for the appellants that there was improvement in the prosecution case
The learned Judges were really meeting the argument of the learned Counsel for the appellants
It is idle to suggest that they erred in law in relying upon the first infor 909 mation report to discredit the witnesses for the simple reason that they accepted the evidence in spite of some omissions in the first information report
In the result we confirm the judgment of the High Court and dismiss the appeal
HIDAYATULLAH J
The judgment which I am delivering has been prepared by my learned brother Imam J and myself We agree that the appeal be dismissed but would express in our own words the grounds upon which it should be dismissed
The main contention advanced on behalf of the appellants was as follows There was no fair trial of the appellants as they had been deprived of the right of cross examination of the prosecution witnesses with reference to their statements made to the police during the police investigation
The trial Judge had disallowed two questions in this respect and the lawyer for the appellants regarded the decision of the learned Judge as one which prevented him from putting further questions with respect to other matters concerning the police statements of the witnesses
The order of the learned Judge had to be respected
The order of the learned Judge was illegal as on a proper interpretation of the provisions of section 162 of the Code of Criminal Procedure the appellants were entitled not only to put the two questions which were ruled out but also questions with respect to other matters arising out of the police statements of the witnesses
The purpose of cross examination is to test the reliability of the witnesses both as to what they had to say about the occurrence itself and concerning their identification of those who had participated in it
There were several matters with respect to which if questions had been allowed to be put an effective cross examination might have resulted and enabled the appellants to persuade the trial Judge to hold that the witnesses were entirely unreliable
In a case of this kind in which the appellants were involved there were only two principal questions which were of vital importance 1 how far the witnesses had improved their 910 story in their evidence in Court from what they had said to the police concerning the occurrence and 2 the existence of opportunity and sufficient light to enable proper identification
It may be assumed although it has been a matter of controversy that the order of the trial Judge disallowing the two questions which were put was understood by the lawyer for the defence to mean that all similar questions in the nature of omissions in the police statements with respect to matters stated in Court would be disallowed and therefore no attempt was made to put further questions to the witnesses in this respect
Unfortunately the lawyer for the defence had not in this particular case laid any adequate foundation upon which the two questions which were ruled out could have been properly put
From that point of view the order of the trial Judge in disallowing those questions was not improper
It could not therefore be said that the trial Judge had done anything which could be rightly characterised as infringement of the provisions of section 162 of the Code of Criminal Procedure or of the  or even of the rules of natural justice
Johari Chowkidar had reported the occurrence to the police station which was a brief statement
Certain matters were however definitely mentioned the names of the persons recognised in the occurrence the number of persons killed and injured the taking away of a gun which was with Bharat Singh Bankey Kumhar firing his gun at the culprits in such a manner that some of them must have been injured and the existence of light from the moon and lantern
The principal comment had been that in this report there was no mention of the culprits having advanced from the well towards the open place where villagers had gathered to hear the music
On the contrary the first information report indicated that the firing was done from the parapet of the well
It is clear however from Johari s statement that the culprits had taken away the gun which was with Bharat Singh
This could only have been done if the culprits had 911 advanced from the well to the place where the villagers had assembled
It was then commented that in the first information report the culprits were said to have come from the southern lane while in Court the evidence was that they had come to the well from the eastern lane
The discrepancy is a minor one
Joliari must have been concerned with reporting the first firing from the well and he might have mistaken the actual direction from which the culprits had approached the well
Johari s statement made no mention of the culprits uttering any warning that no one was to run away as they advanced from the well whereas in Court the witnesses spoke to that effect
This was a detail which Johari might not have considered to be of sufficient importance as he was anxious to make a bare statement in order to get the police to proceed to the place of occurrence as quickly as possible
Johari s statement also makes no mention of the culprits examining the bodies of the dead and examining their faces and exclaiming that Asa Ram one of the men whom they wished to kill had been killed
Here again this was a matter of detail which Johari might not have considered necessary to mention
The first information report made no mention of the existence of gas light
It did however mention the existence of light of lantern and existence of moonlight
The existence of light from lantern and the full moon obviously was sufficient to recognise known persons
It is in evidence that the appellants were known for several years to the witnesses who had identified them as participants in the occurrence
It could not be said with absolute certainty that the mention of the existence of light of lantern excluded the existence of gas light
The statement of Johari gives clear indication that the culprits did not remain all the time at the well because they must have advanced to take away the gun which was with Bharat Singh
The culprits must have stayed at the place of occurrence for some time to enable Bankey Kumhar to fire his gun at them and to convey to Johari s mind the certainty that some of the culprits must have been injured
Reference is made only to 912 some of the details and not to all the discrepancies pointed out in order to determine whether the alleged improvement in the story of the witnesses in Court from what they are alleged to have stated to the police was with reference to vital matters which went to the root of the prosecution case
It is apparent from what has been stated above that even if the defence had been allowed to put questions concerning these alleged omissions in the statements of the witnesses to the police it could not have made their evidence in Court unreliable with respect to any material particular concerning the occurrence or the identification of the accused
From the above it seems to us that there is no merit in the appeal
As however considerable argument has been made concerning the right of cross
examination and as to how the provisions of section 162 of the Code of Criminal Procedure should be construed it becomes necessary to consider the submissions of the learned counsel for the appellants
The provisions of the Code of
Criminal Procedure of 1861 and 1872 have been referred to by our learned brother Subba Rao J Section 162 of the Code of 1872 made it clear that except for a dying declaration and matters coming within the provisions of section 27 of the of 1872 no statement of any person made to a police officer in the course of in
vestigation if reduced into writing could be used as evidence against the accused
There was no restric tion as to the extent of the right of an accused to cross examine a prosecution witness concerning his statement to the police
Section 162 of the Code of 1898 prohibited the use of a statement reduced into writing as evidence except any statement falling within the provisions of section 32 of the 
The proviso to this section however expressly stated that in spite of the prohibition in the main provision the accused could use such a state ment to impeach the credit of the witnesses in the manner provided in the of 1872
It will be seen therefore that until 1898 there was no restriction imposed upon the accused as to the extent 913 of his right of cross examination
As section 162 of the Code of 1898 entirely prohibited the use of the statement reduced into writing as evidence the proviso to it safeguarded the right of the accused to impeach the credit of such witness in the manner provided in the 
Under the  a witness s credit can be impeached under sections 145 and 155 of that Act
The manner in which the provisions of these sections could be utilized to impeach the credit of a witness covers a wide field
If however it was intended to contradict a witness concerning his previous statement reduced into writing then the provisions of section 145 require that those parts of the writing by which it was sought to contradict the witness must be shown to him
There can be no doubt that the provisions of the Code from 1861 to 1898 in no way curbed the right of cross examination on behalf of the accused
The provisions were intended to protect the accused in that no statement of a witness to the police reduced into writing could be used as evidence against him but the right to cross examine the witness to the fullest extent in accordance with the provisions of the in order to show that he was unreliable remained unaffected
The real question for consideration is whether the amendment of the Code in 1923 brought about such a radical change in the provisions of section 162 of the Code as to suggest that the Legislature had taken a retrograde step and had intended to deprive the accused of the right of cross examination of prosecution witnesses concerning their police statements except in one restricted particular namely to make use of the statements reduced into writing to contradict the witnesses in the manner provided by section 145 of the 
The provisions of section 162 of the Code of 1898 were amended in 1923 in the hope that the amendment would resolve the various doubts which had sprung up as the result of divergent judicial opinions as to the meaning of these Provisions
The provisions of section 162 of the Code of 1898 had been variously construed 115 914 and the amendment in 1923 has not improved matters
The amended section still remains difficult to construe
We shall endeavour now to construe it
Under section 161 of the Code the police officer may examine orally any person supposed to be acquainted with the facts and circumstances of the case
He may also reduce into writing any statement made to him in the course of such examination and if he does so he must make a separate record of the statement of each such person
The legislature has however put restrictions upon the use of such statements at the inquiry or trial of the offence
The first restriction is that no statement made by any person to a police officer if reduced into writing be signed by the person making it
The intention behind the provision is easy to understand
The legislature probably thought that the making of statements by witnesses might be thwarted if the witnesses were led to believe that because they had signed the statements they were bound by them and that whether the statements were true or not they must continue to stand by them
The legislature next provides that a statement however recorded or any part of it shall not be used for any purpose save as provided in the sections at the inquiry or trial in respect of any offence under investigation at the time such statement is wade
The object here is not easily discernible but perhaps is to discourage over zealous police officers who might otherwise exert themselves to improve the statements made before them
The Privy Council considered the intention to be  If one had to guess at the intention of the legislature in framing a section in the words used one would suppose that they had in mind to encourage the free disclosure of the information or to protect the person making the statement from a supposed unreliability of police testimony as to alleged statements or both
 It is possible that the legislature had also in mind that the use of statements made under the influence of the investigating agency might unless restricted to a use for the benefit of the accused result in considerable 915 prejudice to him
But whatever the intention which led to the imposition of the restrictions it is manifest that the statements however recorded cannot be used except to the extent allowed by the section
The prohibition contained in the words any purpose is otherwise absolute
Then follow two provisos
The first gives the right to the accused to make use of the statements for contradicting a witness for the prosecution in the manner provided by section 145 of the 
It also gives a right to the prosecution to use the statement for purposes of reexamination of the same witness but only to explain any matter referred to in the cross examination of the witness
The first proviso when analysed gives the following ingredients i A prosecution witness Is called for the prosecution  ii whose statement has previously been reduced to writing iii The accused makes a request iv The accused is furnished with a copy of the previous statement v In order that any part of such statement if duly proved may be used to contradict such witness in the manner provided by section 145 of the 
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 reads Cross examination as to previous statements in writing A witness may be cross examined as to previous statements made by him in writing or reduced into writing and relevant to matters in question without such writing being shown to him or being proved  but if it is intended to contradict him by the writing his attention must before the writing can be proved be called to those parts of it which are to be used for the purpose of contradicting him
 916 The section analysed gives the following result 1 Witnesses can be cross examined as to previous statements in writing or reduced into writing 2 These writings need not be shown to the witnesses or proved beforehand 3 But if the intention is to contradict them by the writings a their attention must be drawn to those parts which are to be used for contradiction  b This should be done before proving the writings
Our learned brother Subba Rao J restricts the use by the accused of the previous statements to the mechanism of contradiction as detailed in 3 above but says that the accused has no right to proceed under 1 and 2
He deduces this from the words of section 162 of the Code of Criminal Procedure where it is provided   in order that any part of such statement if duly proved may be used to contradict such witness in the manner provided by section 145 of the 
 The fact that the accused can use the previous statement for the purpose of contradicting shows that the previous statement cannot be used for corroborating the witness
Also there must be some basis for contradicting
This may arise because of there being a contrary statement irreconcilable statement or even material omissions
The accused can establish a contradiction by cross examining the witness but only so as to bring out a contradiction and no more
We regret we cannot agree and we say this with pro found respect that the accused is not entitled to cross examine but only to contradict
In our opinion the reference to section 145 of the brings in the whole of the manner and machinery of section 145 and not merely the second part
In this process of course the accused cannot go beyond section 162 or ignore what the section prohibits but cross examination to establish a contradiction between one statement and another is certainly permissible
This question loses much of its importance when 917 there are patent contradictions and they can be put to the witness without any cross examination as in the two statements a I saw A hit B b I did not see A hit B
But there are complex situations where the contradiction is most vital and relevant but is not so patent
 There are cases of omissions on a relevant and material point
Let us illustrate our meaning by giving two imaginary statements a When I arrived at the scene I saw that X was running away chased by A and B who caught him
b When I arrived at the scene I saw X take out a dagger from his pocket stab D in his chest and then take to his heels
He was chased by A and B who caught him
There is an omission of two facts in the first statement viz a X took out a dagger from his pocket and b he stabbed D in the chest
These two statements or their omission involve a contradiction as to the stage of the occurrence when the observation of the witness began
What section 145 of the provides is that a witness may be contradicted by a statement reduced into writing and that is also the use to which the earlier statement can be put under section 162 of the Code of Criminal Procedure
When some omissions occur there is contradiction in one sense but not necessarily on a relevant matter
The statements of witnesses may and do comprise numerous facts and circumstances and it happens that when they are asked to narrate their version over again they omit some and add others
What use can be made of such omissions or additions is for the accused to decide but it cannot be doubted that some of the omissions or additions may have a vital bearing upon the truth of the story given
We do not think that by enacting section 162 in the words used the legislature intended a prohibition of cross examination to establish which of the two versions is an authentic one of the events as seen by the witness
The use of the words reexamination and  cross examination  in the same 918 proviso shows that cross examination is contemplated or in other words that the manner of contradiction under section 145 of the comprises both cross examination and contradiction
Indeed the second part is only the final stage of the contra dictionwhich includes the earlier stages
Reexamination is only permissible where there is cross examination
It must not be overlooked that the cross examination must be directed to bringing out a contradiction between the statements and must not subserve any other purpose
If the cross examination does anything else it will be barred under section 162 which permits the use of the earlier statement for contradicting a witness and nothing else
Taking the example given above we do not see why cross examination may not be like this Q I put it to you that when you arrived on the scene X was already running away and you did not actually see him stab D as you have deposed to day  A No I saw both the events
If that is so why is your statement to the police silent as to stabbing  A
I stated both the facts to the police
The witness can then be contradicted with his previous statement
We need hardly point out that in the illustration given by us the evidence of the witness in Court is direct evidence as opposed to testimony to a fact suggesting guilt
The statement before the police only be called circumstantial evidence of complicity and not direct evidence in the strict sense
Of course if the questions framed were Q What did you state to the police  or Q
Did you state to the police that D stabbed X  They may be ruled out as infringing section 162 of the Code of Criminal Procedure because they do not set tip a contradiction but attempt to get a fresh version from the witnesses with a view to contradicting him
How the cross examination can be made must obviously vary from case to case counsel to counsel and statement to statement
No single rule can be laid down and the propriety of the question in the light of 919 the two sections can be found only when the facts and questions are before the Court
But we are of opinion that relevant and material omissions amount to vital contradictions which can be established by cross examination and confronting the witness with his previous statement
The word  contradict  has various Meanings and in the Oxford English Dictionary it is stated as  To be contrary to in effect character etc  to be directly opposed to go counter to go against  as also  to affirm the contrary of to declare untrue or erroneous to deny categorically  and the word  contradiction  to mean  A state or condition of opposition in things compared  variance inconsistency contrariety 
In Shorter Oxford English Dictionary  contradict  is said to mean To speak against to oppose in speech  to forbid  to oppose to affirm the contrary of to declare untrue or erroneous to deny to be contrary to go counter to and go against and  contradiction  to mean  A state of opposition in things compared variance inconsistency
The meaning given to the words contradict  and  contradiction  in these Dictionaries must at least include the case of an omission in a previous statement which by implication amounts to contradiction and therefore such an omission is a matter which is covered by the first proviso to section 162 and questions in cross
examination can be put with respect to it in over to contradict the witness
It is difficult to say as an inflexible rule that any other kind of omission cannot be put to a witness in order to contradict him when the proper foundation had been laid for putting such questions
The words  to contradict him  appearing in section 145 of the Evidence Act must carry the same meaning as the words  to contradict such witness  in section 162 of the Code
In a civil suit where the provisions of section 162 of the Code of Criminal Procedure have no application would it be correct to say that only questions concerning omissions of the kind suggested by our learned brother could be put and none other  We cannot see why a question of the nature of cross examination regarding an omission with respect to a 920 matter which the witness omitted to make in his previous statement and which if made would have been recorded cannot be put
The facts and circumstances of each case will determine whether any other kind of omission than that referred to by our learned brother could be put to a witness in order to contradict him
It would be for the Judge to decide in each case whether in the circumstances before him the question could be put
The purpose of cross examination is to test the veracity of the statement made by a witness in his examination in chief as also to impeach his credit
Not only is it the right of the accused to shake the credit of a witness but it is also the duty of the Court trying an accused to satisfy itself that the witnesses are reliable
It would be dangerous to lay down any hard and fast rule
We pause to look at the matter from another angle
We shall assume that the interpretation which the State claims should be put upon section 1621 is correct and compare the respective rights of the accused and the prosecution
According to this interpretation the accused has no right of cross examination in respect of the contradiction
This means that no question can be put about the previous statement but only the part in which there is a contradiction can be brought to the witness s notice and his explanation if any obtained
In other words there is only  contradiction  and no more
But when the accused has used the statement to contradict the witness it may be only on one point what are the rights of the prosecution  The prosecution can use any part of the statement in the reexamination not only to explain the I contradiction  but also to explain any matter referred to in the cross examination of the witness
If I contradiction  does not include the right of cross examination the right of the prosecution must necessarily extend to reexamination in respect of any other matter needing explanation in the cross examination at large
Thus the accused cannot ask a single question of the nature of cross examination but because he sets up a I contradiction  in the narrow sense the prosecution can range all over the previous 921 statement and afford the witness a chance of explaining any matter in his cross examination by re examining him which right includes the possibility of asking leading questions with the permission of the Court
Thus the accused makes a I contradiction  at his own peril
By making a single I contradiction  the accused places the entire statement in the hands of the prosecution to explain away everything with its assistance
One wonders if the legislature intended such a result for it is too great a price for the accused to pay for too small a right
Fortunately that is not the meaning of section 162 of the Code of Criminal Procedure and it is not necessary to read the word  cross examination  in the proviso in a sense other than what it has
The right of both the accused and the prosecution is limited to contradictions
It involves cross
examination by the accused as to that contradiction within section 145 of the and reexamination in relation to the matters I referred to in the cross examination of the witness 
The prosecution cannot range at will to explain away every dis crepancy but only such as the accused under his right has brought to light
In our opinion reading the section in this way gives effect to every part and does not lead to the startling and if we may say so the absurd results which we have endeavoured to set out above
The question may be asked how is there to be a cross examination about a previous statement  It is difficult to illustrate one s meaning by entering into such an exposition
Any one interested to see the technique is invited to read Mrs Maybrick s trial in the Notable English Trials 1912 at pages 77 79 the trial of William Palmer pages 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
116 922 We respectfully do not agree that the section should be construed in the way our learned brother has construed it
Though we agree as to the result our opinion cannot be left unexpressed
If the section is construed too narrowly the right it confers will cease to be of any real protection to the accused and the danger of its becoming an impediment to effective cross examination on behalf of the accused is apparent
This brings us to the consideration of the questions which were asked and disallowed
These were put during the cross examination of Bankey P W 30
They are Q
Did you state to the investigating officer that the gang rolled the dead bodies of Nathi Saktu and Bharat Singh and scrutinized them and did you tell him that the face of Asa Ram resembled that of the deceased Bharat Singh  Q
Did you state to the investigating officer about the presence of the gas lantern  These questions were defective to start with
They did riot set up a contradiction but attempted to obtain from the witness a version of what he stated to the police which is then contradicted
What is needed is to take the statement of the police as it is and establish a contradiction between that statement and the evidence in Court
To do otherwise is to transgress the bounds set by section 162 which by its absolute prohibition limits even cross examination to contradictions and no more
The cross examination cannot even indirectly subserve any other purpose
In the questions with which we illustrated our meaning the witness was not asked what he stated to the police
but was told what he had stated to the police and asked to explain the omission
It is to be borne in mind that the statement made to the police is I duly proved  either earlier or even later to establish what the witness had then stated
In our opinion the two questions were defective for the reasons given here and were properly ruled out even though all the reasons given by the Court may not stand scrutiny
The matter was not followed up 923 with proper questions and it seems that similar questions on these and other points were not put to the witness out of deference as it is now suggested to the ruling of the Court
The accused can only blame themselves if they did not
The learned Judges of the High Court ruled out from their consideration that these two circumstances made it possible for the witnesses to recognise the accused but hold that there was ample opportunity even otherwise for the witnesses to do so
The High Court was justified in so doing and there being ample evidence on which they could come to the conclusion that the witnesses had in fact recognised the accused it must inevitably be regarded as one of fact in regard to which this Court does not interfere
Since no other point was argued the appeal must fail and we agree that it be dismissed
Appeal dismissed


Summary:
The appellant manufactured hume pipes and had factories in different parts of India Pakistan and Ceylon
For determining the available surplus for the payment of bonus for the year 1954 55 the appellant claimed deductions as prior charges on account of i losses suffered on the Lahore factory written off ii expenditure on patents written off and iii debenture redemption reserve
It also claimed 6 return on the preference shares as return on paid up capital
The losses on the Lahore factory had been incurred in the previous years which had been carried forward from year to year and had been written off as irrecoverable in the bonus year
The amounts spent on the purchase of the patents which had been worked off in the previous years had also been written off in the bonus year
The appellant had issued debentures in 1942 43 redeemable in 1962 63 and claimed Rs 350000 as the annual contribution towards the redemption reserve
The appellant bad issued preference shares on which the shareholders under the terms of the issue were not entitled to more than 5 but the appellant claimed a return of 6 on these hatres also as return on paid up 949 capital as provided in the Full Bench formula
The dispute regarding bonus had been raised by the workmen of the Wadala factory alone the workmen of other factories having settled the matter had been paid the agreed bonus
The respondents claimed that the bonus calculations should not be made on the basis of All India figures but on the basis of the actual amounts paid or payable by the appellant under the settlements
Held that the losses on the Lahore factory and the patents written off could not be allowed as prior charges as they were merely debits in connection with the working of previous years
Nor could the amount on account of the debenture redemption reserve be allowed as a prior charge as no such charge was envisaged by the Full Bench formula of the Labour Appellate Tribunal  but this amount could be taken into consideration when distributing the available surplus among the various interests entitled thereto
In determining the available surplus the Full Bench formula must be adhered to in its essential particulars as otherwise there would be no stability or uniformity of practice
A deduction of more than 5 return on the preference shares could not be allowed as that was the maximum return which the shareholders could get on these shares
Even though the Full Bench formula mentioned 6 return on paid up capital it was not to be literally construed and the Tribunal could if the circumstances warranted increase or decrease the rate
In calculating the actual amount of bonus to be paid calcu lations had to be made on the basis of All India figures otherwise the respondents would have an advantage over those workmen with whom settlements had been made and would get larger amounts of bonus merely by reason of the fact that the appellant had managed to settle the claims of those workmen at lesser figures