Tahsildar Singh and Another vs The State of Uttar Pradesh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 67 of 1958

Decision Date: 5 May, 1959

Coram: B. P. Sinha, Syed Jaffer Imam, J. L. Kapur, A. K. Sarkar, M. Hidayatullah, K. Subba Rao

The case titled Tahsildar Singh and Another versus the State of Uttar Pradesh was decided on the fifth day of May, 1959 by the Supreme Court of India. The opinion was authored by Justice Bhuvneshwar P. Sinha and the bench was comprised of Justices Bhuvneshwar P. Sinha, Syed Jaffer Imam, J. L. Kapur, A. K. Sarkar, M. Hidayatullah, and the additional member Subbarao. The parties were recorded as the petitioners, Tahsildar Singh and another individual, and the respondent, the State of Uttar Pradesh. The judgment bears the citations 1959 AIR 1012 and 1959 SCR Suppl. (2) 875. Subsequent citations of this decision appear in various law reports, for example R 1960 SC 706 (pages 27-28), R 1962 SC 605 (page 26), R 1964 SC 1563 (page 8), R 1970 SC 1006 (page 7), R 1972 SC 1004 (page 82), E 1974 SC 308 (pages 1, 6, 10), R 1975 SC 667 (page 95), R 1975 SC 1758 (page 18), D 1977 SC 1579 (page 28), and R 1981 SC 1068 (page 3). The judgment discusses provisions of the Criminal Trial-Police Statements-Use of-Omission, when amounts to contradiction, contained in Section 162 of the Code of Criminal Procedure, 1898 (the fifth edition), and Section 14 of the Indian Evidence Act, 1872 (the first edition).

The factual background, as set out in the headnote, described a musical performance that attracted a large audience on a platform situated in front of the residence of a man named Ram Saroop. The event took place under a full moon and was illuminated by the light of a gas lamp together with several lanterns. Two police informers, identified as Bankey and Asa Ram, had placed their firearms upon a cot close to the platform, and a person named Bharat Singh was seated on that cot. At an abrupt moment, the accused, accompanied by approximately fifteen to twenty other individuals, arrived armed and opened fire with the intention of killing the informers. The assailants positioned themselves behind a well on the southern side of the platform, shouted commands that no one should flee, and commenced shooting. Two persons were killed instantly. Bharat Singh was struck, fled northward while being pursued, and was subsequently shot dead. The attackers then turned over the bodies of the deceased, and upon seeing the face of Bharat Singh they exclaimed that the informer Asa Ram had been killed. After this proclamation the assailants passed in front of Ram Saroop’s house and disappeared from view, taking with them Bankey’s gun from the cot. The appellants and seven additional persons were subsequently charged and tried for this incident. During the trial the defence contended that the prosecution’s case had been developed improperly. The police statements of the primary eyewitness omitted reference to the condition of the bodies and to the presence of the gas lantern. In response, the defence counsel sought to ask the eyewitness two specific questions concerning those omissions: (1) whether the eyewitness had told the investigating officer that the gang had rolled the dead bodies of Nathi, Saktu and Bharat Singh, examined them, and noted that the face of Asa Ram resembled that of the deceased Bharat Singh; and (2) whether the eyewitness had informed the investigating officer about the existence of the gas lantern. The Sessions judge disallowed these questions, a decision that formed part of the appellate record.

In the case under discussion, the Sessions Judge found the appellants guilty of the offence defined in section three hundred two of the Indian Penal Code and imposed the capital punishment on each of them. The convicted individuals appealed the conviction to the High Court and, in the same proceeding, moved an application asserting that the Sessions Judge had refused to permit the defence counsel to raise certain omissions, which the appellants claimed amounted to material contradictions in the testimony of the eye-witnesses. Accordingly, they requested that the eye-witnesses be summoned again so that the questions which had been disallowed could be put to them. The High Court examined the content of the alleged omissions and agreed that they could be characterised as contradictions; it also concluded that the Sessions Judge had erred in disallowing the cross-examination on that ground. Nevertheless, the High Court observed that, even if those two circumstances had been ignored, the remaining evidence showed that the accused had approached the eye-witnesses closely and had an unmistakable opportunity to identify the appellants, particularly because the incident had occurred under a full moon and the presence of lanterns. On that basis, the High Court dismissed the application for summoning the witnesses, holding that the refusal to allow the cross-examination had not caused any prejudice to the appellants. The Court consequently rejected the appeals, upheld the convictions, and confirmed the death sentences.

The Court, speaking for the bench consisting of Justices Sinha, Kapur, Sarkar and Subbarao, held that the alleged omissions did not rise to the level of contradictions and that the Sessions Judge had been correct in refusing to allow the cross-examination concerning those omissions. The Court explained that a statement made to the police may be used under section one hundred sixty-two of the Code of Criminal Procedure solely for the purpose of contradicting a statement given in the witness box, as provided in the second part of section one of the Evidence Act, but it cannot be used for the purpose of cross-examining the witness under the first part of section one hundred forty-five. Moreover, a police statement that has not been reduced to writing cannot be employed for any purpose, not even for contradiction. The Court warned that it would be erroneous to treat every omission of an important feature of the incident, which should have been included in the police statement, as a contradiction. An omission may be treated as a statement capable of contradiction only when it is necessarily implied from the recitals contained in the police statement, when it represents the negative aspect of a positive fact already recited, or when the police statement and the testimony given in court are mutually inconsistent. Determining whether a particular recital falls within one of these categories is a matter for the trial judge, who must compare the relevant portion of the police statement with the testimony delivered in the witness box and decide, on a case-by-case basis, whether the material is suitable for contradiction. The Court referred to several earlier decisions, including Ye Ponnusami Chetty (1933) I.L.R. fifty-six Madras 475, Ye Guruva Vannan (1944) I.L.R. Madras 897, Ram Bali v. State A.I.R. nineteen fifty-two All 289, Badri Chaudhry v. State A.I.R. nineteen twenty-six Patna 20, Sakhawat v. Crown I.L.R. (1937) Nagpur 277, Rudder v. The State A.I.R. nineteen fifty-seven All 239, and Mohinder Singh v. Emperor A.I.R. nineteen thirty-two Lahore 103, among others, illustrating the principles governing the use of police statements in cross-examination.

The Court observed that the authorities cited in the earlier discussion, namely v. Emperor, A.I.R. 1932 Lah. 103; Yusuf Mia v. Emperor, A.I.R. 1938 Pat. 579; and State of M.P. v. Banshilal Behari, A.I.R. 1958 M.P. 13, were not to be followed. The Court, speaking through Justice Imam and Justice Hidayatullah, held that the questions put by the defence counsel were correctly excluded by the Sessions judge. The reason for the exclusion was that those questions did not create any genuine contradictions. Instead, they sought to obtain from the witnesses the same statements that had already been recorded by the police, statements which the defence then intended to challenge. The reference made by the lower court to section 145 of the Indian Evidence Act within the ambit of section 162 of the Code of Criminal Procedure was held to invoke the entire scheme and procedure established by section 145, not solely its latter part. Accordingly, an accused is entitled to cross-examine a witness under the first portion of section 145 as it relates to the police statement. Where a witness’s statement to the police contains material omissions that are relevant, such omissions constitute vital contradictions. These contradictions can be brought out through cross-examination and by confronting the witness with his prior police statement. In the facts of the present case, even if the defence had been permitted to ask questions about those omissions, the Court found that such permission would not have altered the witnesses’ credibility nor caused any prejudice to the appellants by the refusal to allow the questions.

The appeal was filed under criminal appellate jurisdiction as Criminal Appeal No. 67 of 1958, seeking special leave to appeal from the judgment and order dated 11 September 1957 of the Allahabad High Court in Criminal Appeal No. 1388 of 1956. The appeal also arose from the judgment and order dated 8 September 1956 of the Court of the Additional Sessions Judge at Etawah in Sessions Trials Nos. 83 and 109 of 1955. Counsel for the appellants were represented by senior members of the bar, while counsel for the respondent were similarly engaged. The judgment was pronounced on 5 May 1959. The bench comprised Justices B. P. Sinha, J. L. Kapur, A. K. Sarkar and K. Subba Rao, with the opinion of Justices Imam and Hidayatullah delivered by Justice M. Hidayatullah. Justice K. Subba Rao authored the portion of the judgment relating to the construction of section 162 of the Code of Criminal Procedure.

The factual background narrated that on 16 June 1954, Ram Sanehi Mallah of Nayapura organized a dinner at his residence, which was attended by a large number of his friends. After the dinner, at approximately 9 p.m., a musical performance was staged in front of the house of his neighbour, Ram Sarup. About thirty-five to forty guests gathered in front of Ram Sarup’s platform to listen to the music. The prosecution’s case alleged that a sizeable group of individuals, armed with firearms, suddenly appeared near a well situated on the southern side of Ram Sarup’s house and opened fire, resulting in the deaths of Natthi, Bharat Singh and Saktu, and causing injuries to six persons identified as Hazari, Bankey, Khem Singh, Bal Kishan, Mizaji Lal and Nathu. The layout of the locality where the incident occurred was depicted in two site-plans annexed to the record.

The Court noted that the plan labelled P-57 and exhibit P-128 showed that the house of Ram Sarup faced west. Directly opposite the main door of that house there was a raised platform. To the southwest of that platform, about twenty-five paces away, a well was situated; the well was surrounded by a platform three feet high and approximately thirteen feet wide. To the west of the platform that stood before Ram Sarup’s house, the audience members were seated. The prosecution’s version of the events on the night in question was then set out. After the dinner, a musical performance was held in front of the platform of Ram Sarup’s house and a number of people gathered to listen. Saktu played the Majeera while Nathu sang. The night was a full-moon night and the area was illuminated by a gas lamp and several lanterns. Bankey and Asa Ram placed their firearms on a cot that was close to the platform; Bharat Singh was also seated on that cot. While Bankey was among the audience, Asa Ram remained inside the house completing his dinner. At about nine o’clock in the evening, the accused, together with fifteen or twenty other persons, arrived from an eastern lane. They positioned themselves behind the well, shouted that nobody should try to escape, and then moved northward from the well while firing their guns. Natthi and Saktu were struck and died instantly. Bharat Singh was also hit; he fled northward, was chased by some of the assailants and was shot dead in front of the house identified as Bankey’s on the plan. Bankey, who had been wounded, seized Asa Ram’s gun and climbed onto the roof of Ram Sarup’s house, from where he discharged shots at the fleeing dacoits. Asa Ram, who was fortunate to be inside the house eating his dinner, also ascended to the roof of Ram Sarup’s house and observed the scene from the parapet. The perpetrators turned over the dead bodies of Saktu, Natthi and Bharat Singh; on seeing Bharat Singh’s face they shouted that Asa Ram had been killed. Afterwards they moved northward, passed around the corner of Ram Sarup’s house and disappeared in the direction of the Chambal River. They also took away Bankey’s gun that had been on the cot. The prosecution alleged that the motive for the offence was vengeance. The accused were said to belong to a notorious group known as Man Singh’s gang, which was alleged to have been responsible for many murders and dacoities in the locality. That gang was reportedly allied with another group named Charna’s gang, which operated in the same region. Asa Ram and Bankey were described as informers against Charna’s gang, and the information they provided was said to have led to the killing of Charna. Consequently, Man Singh’s gang allegedly sought revenge against the two informers, learned that they would be present at the music party on the night in question, and organized the raid with the purpose of eliminating them.

In the trial, nine persons were committed to the Sessions Court. The learned Sessions Judge acquitted seven of the accused, but convicted the remaining two, namely Tahsildar Singh and Shyama Mallah, on fourteen separate charges. The judgment imposed a range of sentences on them, including the death penalty for one of the appellants. During the trial, Tahsildar Singh advanced a manifestly false plea, asserting that he was not the individual named Tahsildar Singh but rather a person called Bhanwar Singh. A considerable portion of the hearing was consequently devoted to the learned Judge’s examination of the prosecution’s case to determine whether the accused was in fact the son of Man Singh, who bore the same name. The other appellant, Shyama Mallah, had earlier given a statement before the Sub-Divisional Magistrate in which she admitted certain facts that were merely exculpatory. Nevertheless, she denied having taken part in the offence both before the committing Magistrate and before the learned Sessions Judge. The prosecution relied upon the testimony of eight eyewitnesses who narrated the incident in detail and unequivocally identified both Tahsildar Singh and Shyama Mallah as participants in the crime. One of those witnesses, identified as Bankey (PW 30), testified in the trial court. During cross-examination, counsel for the accused posed two questions to Bankey. The first question sought to elicit whether Bankey had told the investigating officer that the gang had rolled the dead bodies of Natthi, Saktu and Bharat Singh and had remarked that the face of Asa Ram resembled that of the deceased Bharat Singh. The second question inquired whether Bankey had informed the investigating officer about the presence of a gas lantern. The learned Sessions Judge recorded that the counsel could not cite any legal authority permitting the first question and therefore refused to allow it unless the counsel satisfied the court of its legality. Similarly, the Judge noted that the counsel could not produce a law justifying the second question, but stated that he would permit it if the counsel could satisfy him. No other questions derived from Bankey’s prior police statement were asked of him, nor were any additional queries of this nature directed to any other witness. After closing the evidence, the learned Judge delivered a detailed order explaining the reasons for disallowing the two proposed questions. The order clarified that where a witness’s in-court testimony does not conflict with a statement made in a diary under section 161 of the Code of Criminal Procedure, the latter statement cannot be used to impeach the former. Conversely, if the witness’s testimony contradicts a prior statement made under section 161, that earlier statement may be employed to challenge the court evidence. However, if the witness had not made any statement under section 161 concerning the particular fact, there is no conflict, and the earlier statement cannot be used to contradict the witness’s testimony.

In the judgment, the Court observed that an omission in a statement recorded under section 161 of the Code of Criminal Procedure may, in certain circumstances, amount to a contradiction of the deposition made in Court. Such a situation arises when the matter that is actually stated in the statement is irreconcilable with what is omitted, and the omission therefore implicitly negates the existence of the fact. The Court noted that the learned Sessions Judge did not declare that any omission in a section-161 statement could be put to a witness. Rather, the Judge clarified that only an omission which is irreconcilable with the evidence given in Court may be raised. The two specific omissions identified in the present case were not put to any other witnesses, except that one of the omissions was addressed to a single witness. No other omissions were raised during cross-examination of PW-30 or any other witness. After reviewing the extensive evidence, the Sessions Judge concluded that the prosecution had proved the guilt of the two accused and convicted them accordingly. The convicted persons, Tahsildar Singh and Shyama Mallah, each filed a separate appeal before the High Court challenging their convictions and sentences. These appeals were heard together with a reference made by the Sessions Judge under section 374 of the Code of Criminal Procedure, seeking confirmation of the death sentence imposed on the appellants. The High Court Judges, after re-examining the whole evidentiary record, accepted the findings of the Sessions Judge and affirmed both the convictions and the death sentences.

Before the High Court, the appellants filed a petition on 1 May 1957 alleging that the Sessions Judge had refused to allow the defence counsel to put omissions that amounted to material contradictions before the eye-witnesses, and they requested that the eye-witnesses be summoned so that those questions could be posed. After the arguments in the appeals were closed, the petition was dismissed on 30 July 1957. It appears that no effort was made to press this application either before the appeals were taken up for argument or during the hearing of the appeals; nevertheless, the High Court addressed the issue raised in the petition in its judgment. The judgment records that the counsel for the appellants argued before the High Court that the Sessions Judge had wrongly disallowed the two questions. The High Court, while conceding that those two questions should have been permitted, held that the accused were not prejudiced by the omission. The Court explained that it chose to disregard those two circumstances and to base its findings on matters of greater certainty, specifically the fact that the miscreants fired while advancing, passed in front of Ram Swarup’s platform, and seized Bankey’s gun from the cot—actions that brought them close to the eye-witnesses and gave the witnesses a clear opportunity to see the faces of the accused under the lantern light and the full moon, rendering the summoned testimony unnecessary.

The High Court observed that the circumstances of the incident placed the eyewitnesses at a location where they could see the accused clearly because the light of lanterns and the full moon illuminated the scene. The Court held that this illumination gave the witnesses an unmistakable opportunity to view the faces of the accused, and that such visibility rendered any reliance on a gas lantern or any careful examination of the dead bodies unnecessary. Consequently, the Court concluded that the matter of recognition by the witnesses was independent of those additional aids, and therefore the presence of the eyewitnesses before the trial court was not required. On the basis of this reasoning, the High Court dismissed the appeals that had been before it.

The present case is an appeal by special leave against the judgment of the High Court. Counsel for the appellants submitted several substantive points for consideration. First, they argued that Section 162 of the Code of Criminal Procedure, by its very operation, invokes the provisions of Section 145 of the Evidence Act, thereby opening the entire scope of cross-examination to the accused on the basis of any written statement previously made by a witness to the police. To illustrate this contention, they explained that a witness may be asked whether he made a particular statement to the police; if the witness answers affirmatively, the accused may contradict that answer by producing an earlier written statement that does not contain the asserted material. Second, the counsel submitted that the term “contradiction” possesses a wide connotation that embraces all material omissions, and that a Court should determine whether any omission amounts to a contradiction only after the relevant question has been asked, answered, and the pertinent portion of the statement has been identified; consequently, no fixed rule should be imposed, and the judge must decide the issue on the facts of each case. Third, the appellants contended that the High Court erred in holding that only two questions were intended to be put to the prosecution witnesses, because the advocate for the accused had intended to raise many additional omissions in order to demonstrate a development in the prosecution’s case over time, but refrained from doing so in obedience to the considered order of the learned Sessions Judge. Fourth, they maintained that even if only two questions had been improperly excluded, the inability to predict the effect of cross-examination on the witnesses’ reliability meant that the accused were deprived of an effective opportunity to cross-examine, thereby denying them a fair trial. Fifth, the counsel alleged that the learned judges committed an illegality by testing the credibility of witnesses other than the one who gave the first information report, using the contents of that report as a benchmark. The arguments of the counsel for the respondent on each of these contentions will be examined in their proper context. The Court will now consider the submissions of the appellants in the order in which they were raised, beginning with the first point.

Diverse and conflicting opinions have been expressed by various courts regarding the interpretation of section 162 of the Code of Criminal Procedure. To understand the meaning of that provision, it is helpful to examine its historical development. The first Code of Criminal Procedure was enacted in 1872, and the most recent amendment to that Code was made in 1955. In the early period, the criminal procedure law applicable to courts in the Presidency towns differed from the law that applied to courts situated in the rest of the country, often referred to as the mofussil. The Criminal Procedure Code of 1882 (identified as Act 10 of 1882) was enacted to amalgamate the earlier statutes and to provide a uniform set of procedural rules for every court throughout India. That Code was later superseded by Act 5 of 1898, and further substantial modifications were introduced by Act 18 of 1923. Since the passage of the 1923 legislation, the Code has undergone periodic amendment by a series of later statutes. The most recent amendments at the time of this judgment were effected by Act 26 of 1955, which obtained the President’s assent on 10 August 1955, and whose operative provisions were brought into force by a Central Government notification effective from 1 January 1956. For the purpose of the present case the Court is not concerned with the changes introduced by the 1955 amendment; instead, the analysis is confined to the version of the Code that existed prior to that amendment.

In the original 1872 Code, the provision that corresponds to today’s section 162 was numbered as section 119. That section read as follows: “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 to 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.” The effect of this provision was to empower a police officer to obtain oral information from any individual who was believed to possess knowledge of the facts of a case, and to put the answers into writing. However, the provision expressly excluded any written statement from being signed by the maker of the statement and prohibited that written statement from being treated as part of the official record or from being used as evidence in a trial.

When the Code was revised in 1882, the earlier section 119 was split into two separate sections, which were numbered as sections 161 and 162. Section 161 reproduced, with minor modifications, the first two paragraphs of the 1872 provision. It states: “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 dealt with the treatment of the written statements that were produced under section 161. It provides: “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 …” (the remainder of the text continues in the next portion of the judgment). This historical exposition shows how the present section 162 evolved from its earlier form and clarifies the scope of the prohibition on using police-recorded statements as evidence, except for a dying declaration.

Section 162 of the Code of Criminal Procedure declares that a written statement obtained from any person by a police officer during an investigation shall not be used as evidence against the accused, and it further provides that nothing in this provision shall affect the operation of section 27 of the Indian Evidence Act, 1872. The first two paragraphs of section 119 of the Act of 1872, after being slightly modified, were incorporated as the corresponding paragraphs of section 161 of the Act of 1882. The third paragraph of the former section 119, with certain alterations, was re-enacted as section 162 of the 1882 Act. Apart from the clarification that the prohibition would not apply to a dying declaration and would not interfere with the provisions of section 27 of the Indian Evidence Act, there was essentially no substantive difference between the third paragraph of the 1872 Act and section 162 of the 1882 Act. The Code of 1898 retained the wording of section 161 unchanged and did not bring about any material change in the substantive content of section 162, except that it removed the exception concerning a dying declaration from that section and placed it in the second clause of the provision. Subsequently, section 162 was amended by Act 5 of 1898, and the amended provision read as follows: “(1) No statement made by any person to a police-officer in the course of an investigation under this Chapter shall, if taken down in writing, be signed by the person making it, nor shall such writing be used as evidence: Provided that, when any witness is called for the prosecution whose statement has been taken down in writing as aforesaid, the Court shall, on the request of the accused, refer to such writing, and may then, if the Court thinks it expedient in the interests of justice, direct that the accused be furnished with a copy thereof; and such statement may be used to impeach the credit of such witness in manner provided by the Indian Evidence Act, 1872. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of section 32, clause (1), of the Indian Evidence Act, 1872.”

The proviso appended to the amended section 162 introduced several new elements. First, it recognised the accused’s entitlement to request that the Court refer to a written statement of a prosecution witness. Second, it imposed a duty on the Court to make such a reference when the request is made. Third, it granted the Court discretionary power, in the interests of justice, to order that a copy of the written statement be provided to the accused. Fourth, it limited the permissible use of that statement to the impeachment of the witness’s credibility, and only in the manner prescribed by the Indian Evidence Act, 1872. From the perspective of the accused, these provisions represented an improvement over the earlier codes, which had imposed an absolute ban on the use of any such written statements as evidence. The amended provision now allowed the accused, subject to the conditions outlined in the proviso, to rely on the written statement for the limited purpose of challenging the witness’s credibility, thereby softening the previously rigid prohibition.

The Court observed that the statutory provision permitted the written statement to be employed only for the purpose of impeaching the credibility of a witness, as prescribed by the Indian Evidence Act. On the basis of the language of section 162 of Act 5 of 1896, two opposing arguments were presented before the Courts. The prosecution contended that, relying on section 157 of the Evidence Act, its right to adduce an oral statement to contradict a witness’s testimony was not withdrawn by section 162 of the Code of Criminal Procedure, which merely stipulated that the written document could not be introduced as evidence. Conversely, counsel for the accused argued that when a witness’s statement had been formally reduced to writing, it would be unreasonable to permit oral testimony of that same statement at trial if the written version could not be proved. The Court cited the judgment of Hosain, J., in Rustam v. King-Emperor (1) together with the decisions in Fanindra Nath Banerjee v. Emperor (2), King-Emperor v. Nilakanta (3) and Muthukumaraswami Pillai v. King-Emperor (4) as representing one side of the debate, while noting that the judgment of Knox, J., in Rustam v. King-Emperor (1) and the observations of Beaman, J., in Emperor v. Narayan (5) reflected the opposite viewpoint. A division Bench of the Bombay High Court, in Emperor v. Hanmaraddi Bin Ramaraddi (6), after reviewing the foregoing authorities, held that a police officer could be permitted to testify regarding what a witness had told him during the investigation, provided that such testimony served to corroborate the witness’s evidence at trial. In that context, Shah, J., remarked on page 66 that “the point is not free from difficulty which is sufficiently reflected in the diversity of judicial opinions bearing on the question.” The Court noted that, given the conflicting authorities, the legislature clarified its intention by amending the section through Act 18 of 1923. The amended section 162 was recorded as follows: “(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.”

Section 162, as amended by Act 18 of 1923, provided that when a witness called by the prosecution had given a statement that was reduced to writing, the accused could, upon request, be supplied with a copy of that written statement so that any part of it, if properly proved, might be used to contradict the witness in accordance with section 145 of the Indian Evidence Act, 1872. The provision further allowed that any portion of the written statement so used could also be employed during the re-examination of the witness, but only for the purpose of explaining a matter that had been raised in the cross-examination. Additionally, the section empowered the court to withhold any part of the statement if it considered that part irrelevant to the subject matter of the inquiry or trial, or if its disclosure to the accused was not essential for the ends of justice and was contrary to the public interest; in such cases the court was required to record its opinion, though it need not give reasons, and to omit the excluded portion from the copy furnished to the accused.

The first sub-section of the amended provision sought to resolve the earlier conflicts and difficulties by introducing several distinct measures. Firstly, it prohibited the use of any statement, whether oral or reduced to writing, for any purpose at any inquiry or trial relating to an offence that was under investigation at the time the statement was made. Secondly, whereas the earlier wording permitted the accused to impeach the credibility of a witness under the general provisions of the Indian Evidence Act, the new wording limited the accused’s use of the written statement to the specific purpose of contradicting the witness as provided by section 145 of that Act. Thirdly, the amendment allowed the written statement to be used only for the narrow purpose of clarifying any point that had arisen during the cross-examination. Fourthly, the amendment changed the court’s role from discretionary to mandatory: if the accused made a request, the court was obliged, subject to the second proviso, to order that a copy of the written statement be given to the accused.

These changes effectively closed the loopholes that had previously allowed statements made to the police to be introduced in trial, limiting the admissibility of such statements to a single, narrowly defined purpose. The amendment clarified that the accused could use the written statement solely to contradict the witness under section 145, while the prosecution could rely on it only to explain matters raised in cross-examination. The scope of this limited use was further distinguished from the earlier provision, which had permitted the accused to impeach a witness’s credit under either section 145 or section 155(3) of the Evidence Act. Section 145 permits a witness to be cross-examined about a prior statement without the statement being shown to him, whereas section 155(3) allows the witness’s credit to be impeached through independent evidence of the prior statement. If written statements could be used to discredit a witness under both sections, the legislative intent would be defeated; consequently, the amendment made it clear that the written statement could be used only to contradict the witness in the manner provided by section 145.

In the earlier provision, a written statement could be shown to a witness without the witness seeing the document, while the later provision allowed a witness to be discredited by proving his previous statement through independent evidence. The Court observed that if a written statement were permitted to be used for discrediting a witness under both provisions, the legislature’s purpose would be frustrated. Consequently, the legislature, recognizing this unintended result, amended the law to specify that such a statement could be employed only to contradict a witness in the manner prescribed by section 145 of the Evidence Act. By Act 2 of 1945, subsection (3) was inserted into section 161, providing that “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 amendment revived the practice that had existed before 1923, aiming to discourage police officers who earlier had taken condensed versions or precise summaries of all witnesses’ statements.

The Court noted that it was unnecessary to detail the alterations effected in section 162 by Act 26 of 1955, except to point out that the amendment authorized the prosecution, with the Court’s permission, to use a statement to contradict a witness. Moreover, because the committal procedure had been shortened, the police were now required to provide copies of the statements taken from prosecution witnesses during the investigation to the accused before the inquiry or trial began. The Court further explained that the latest amendment need not be examined in depth because the present case had to be decided according to the law as it stood before that amendment.

From this analysis, the Court concluded that the legislature’s consistent objective had been to prevent a witness’s statement made to the police during an investigation from being used at trial for any purpose. The successive amendments served only to clarify this objective and to eliminate any ambiguity surrounding it. The 1898 Act had initially created an exception allowing a written statement to be used for impeaching a witness’s credibility under the Evidence Act. However, the wording of that exception permitted a broader use that could defeat the legislative intent. Therefore, the Amendment Act of 1923 redrafted the section, precisely limiting the exception so that a written statement could be used solely to contradict the witness in accordance with section 145 of the Evidence Act. The Court inferred that the legislature’s intention in the 1923 reform was clearly to safeguard the accused by restricting the admissibility of pre-investigation statements.

In this case, the Court observed that the provision was intended to prevent the prosecution from using statements that witnesses had made to police officers during the investigation against the accused at trial, on the assumption that such statements were not made under circumstances that inspired confidence. Both the main section and its proviso were designed principally to protect the accused’s interests. The Court cited the observation of Braund, J., in Emperor v. Aftab Mohd. Khan, where he explained at page 299 that the purpose of section 162 was to shield accused persons from prejudice arising from statements made to police officers, who, because an investigation was already underway, might be in a position to influence the maker of the statement, and also to protect the accused from untruthful witnesses who, knowing that an investigation had begun, might be prepared to tell falsehoods. A division bench of the Nagpur High Court, in Baliram Tikaram Marathe v. Emperor, expressed a similar view at page 5, stating that the object of the section was to protect the accused both against over-zealous police officers and untruthful witnesses. The Judicial Committee, in Pakala Narayana Swami v. The King-Emperor, identified an additional purpose at page 78, suggesting that the legislature had intended either to encourage free disclosure of information or to protect the person making the statement from the alleged unreliability of police testimony, or both. The Court held that, when interpreted in the manner it would later set out, section 162 together with its proviso clearly achieved these objectives. The learned counsel for the petitioner relied primarily on the words “in the manner provided by section 145 of the Indian Evidence Act, 1872” found in section 162 of the Code of Criminal Procedure. He argued that section 145 of the Evidence Act empowered the accused to put all relevant questions to a witness before drawing his attention to the specific parts of the written statement that were intended to contradict him. To support this contention, counsel referred to the judgment of the Court in Bhagwan Singh v. The State of Punjab. In that decision, Bose, J., described the procedure to be followed under section 145 at page 819, explaining that resort to section 145 would be necessary only if the witness denied having made the prior statement. In such a situation, it would be necessary to prove that the witness indeed made the statement, and if the former statement had been reduced to writing, section 145 required that the witness’s attention be drawn to the relevant portions of that writing in order to effect a contradiction.

In the passage quoted, the Court explained that when a witness admits that he made an earlier statement, the only step required is to refer to that earlier statement; no additional proof is needed because the admission itself establishes that the statement was made. The Court observed that it was unnecessary to cite other cases that suggested a similar method for asking questions under section 145 of the Indian Evidence Act, because those decisions did not deal with a situation in which a written statement was intended to be used for contradiction under section 162 of the Code of Criminal Procedure. The Court then described the two-part structure of section 145. The first part authorises the accused to cross-examine a witness about a previous statement that was made in writing or reduced to writing, without the writing being shown to the witness. The second part deals with cross-examination that takes the form of contradiction; thus both parts relate to cross-examination, the first part to cross-examination that is not by way of contradiction and the second part to cross-examination that is solely by way of contradiction (see (1) [1952] S.C.R. 812). The Court stated that the prescribed procedure, when the purpose is to contradict a witness by using a writing, requires that the witness’s attention be drawn before the writing is proved to the specific portions of the writing that will be used for the contradiction. The proviso to section 162 of the Code of Criminal Procedure, the Court held, merely permits the accused to use such a statement to contradict a witness in the manner provided by section 145 of the Evidence Act. To allow that statement to be employed for the purpose of cross-examining a witness under the first part of section 145 would be contrary to the language of the proviso. The Court also rejected the argument that invoking the second part of section 145 could not be done without first posing relevant questions under the first part; it considered that difficulty to be more hypothetical than real. The Court clarified that the second part of section 145 plainly sets out a simple procedure. For illustration, the Court said, if a witness A testifies in the witness-box that B stabbed C, but earlier to the police A stated that D stabbed C, the witness’s attention may be drawn to the earlier part of the statement that contradicts his testimony in the witness-box. If A admits the earlier statement, no further proof is required; if A does not admit it, the usual practice is to admit the statement subject to proof by the police officer. By contrast, the procedure suggested by the learned counsel was illustrated as follows: if the witness is asked, “Did you say before the police-officer that you saw a gas-light?” and he answers “yes,” the statement that does not contain such a recital is then put to him as a contradiction. This illustration, the Court noted, involved two fallacies.

When a witness answers “yes” to a question that asks whether he had previously told a police-officer something, the prosecutor then puts to the witness a statement that does not contain the alleged recital and treats it as a contradiction. The Court observed that this method of cross-examination rests on two serious errors. The first error is that it permits the accused, through cross-examination, to draw out from the witness the content of a statement that the witness allegedly made to a police-officer. If the police-officer failed to record the witness’s statement, the entire statement is not admissible for any purpose. Yet, if the police-officer recorded only a few sentences, the cross-examination technique enables the prosecutor to place the witness’s oral testimony on the record by referring to those few recorded words. By allowing such an approach, the Court held that the procedure directly conflicts with the explicit provision of section 162 of the Code of Criminal Procedure, which bars the use of any statement made to a police-officer for any purpose. The second error, according to the Court, is that the illustration suggested by counsel for the appellants does not actually produce a self-contradiction in the witness’s primary testimony given in the witness-box. The witness has not yet made any assertion on the stand that can serve as a basis for contradiction. Under section 162, a contradiction must be established between what the witness declares in the witness-box and what he previously stated to a police-officer, not between what the witness claims he said to the police-officer and what he actually said in his testimony. Consequently, the proposed question cannot be posed because only genuine contradictions may be raised, and the question in dispute fails to create such a contradiction; it merely leads to an answer that is contradicted by the police statement. The Court therefore concluded that the argument based on section 145 of the Evidence Act, as advanced by the learned counsel, is irrelevant when the explicit provisions of section 162 of the Code of Criminal Procedure are considered.

The discussion then turned to the principal issue of the case, namely the proper construction of section 162 of the Code of Criminal Procedure. The Court reiterated the fundamental rule of statutory interpretation that a provision containing a proviso must be read in its entirety, allowing each part to illuminate the others. Citing the well-known statement from Maxwell’s Interpretation of Statutes (10th edition, p. 162), the Court explained that the correct approach is to apply the broad general rule that a statute must be construed as a whole, with each portion shedding light on the rest. The true principle, the Court said, is that the meaning of the enactment, as derived from the enacting clause, any saving clause, and the proviso taken together, must prevail. Unless the language of the provision is clear, the Court must not interpret the proviso in a way that attributes to the legislature an intention to give with one hand and withdraw with the other. In other words, a sincere effort is required to reconcile the enacting clause with the proviso and to avoid any conflict between them. Since the words of the section express the legislature’s intention, the Court proceeded to give those words their natural and ordinary meaning. The object of the main provision, as shown by the legislative history and affirmed by decided cases, is to impose a general prohibition on the use of any statement made to a police-officer. This overarching purpose guides the Court’s interpretation of the proviso and informs the construction of the entire section.

In this case the Court observed that the enacting clause of the provision is expressed in unequivocal language, stating that no statement made by any person to a police officer, nor any record of such a statement or any part thereof, may be employed for any purpose. The language of the clause is therefore clear and unambiguous. The proviso, however, introduces a narrowly tailored exception to this general prohibition. It provides that a written statement may be used to contradict a witness in the manner prescribed by section 145 of the Evidence Act. The Court noted that the historical purpose of the enacting clause was principally to safeguard the interests of the accused. During the investigative stage, the Court explained, statements of witnesses are often obtained in a haphazard fashion. Police officers conducting investigations frequently find themselves surrounded by a noisy and excited crowd, a setting that differs fundamentally from the orderly environment of a courtroom. In such circumstances the officer is expected to listen to the statements of multiple witnesses and to record each one separately, yet in practice the officer usually prepares only a summary of those portions of the statements that appear relevant. Consequently, the recorded statements are frequently merely a perfunctory summary of what the witnesses actually said. Moreover, the statute expressly forbids police officers from obtaining the signature of the person making the statement, a rule that indicates that the statement is not intended to be binding on the witness nor to constitute an assurance of its correctness. At the same time, because the written record represents the earliest capture of a witness’s account soon after the incident, any inconsistency identified within that record can be of great assistance to an accused person in challenging the credibility of the witness. The Court therefore concluded that the provision was designed to strike a “happy middle way.” While it imposes an absolute bar on the use of statements made before a police officer for any purpose, it simultaneously permits the accused to rely on such a written statement for the limited purpose of contradicting that witness, as authorized by section 145 of the Evidence Act, by drawing the court’s attention to the specific portions of the statement that are intended for contradiction. The Court emphasized that the written statement cannot be used to corroborate the testimony of a prosecution witness, a defence witness, or a court witness, nor can it be employed to contradict a defence or a court witness. In short, there exists a general prohibition on the use of such statements, subject to a narrow exception that serves the interests of the accused and cannot be stretched to defeat the overall bar. The Court further explained that when the provisions are interpreted in this context, many of the difficulties previously raised disappear. The Court identified two phrases in the statutory language that are especially significant for discerning legislative intent: the expressions “statement in writing” and “to contradict.” The term “statement,” as defined in dictionaries, means the act of stating or reciting, and this plain meaning guides the interpretation of the provision.

The Court explained that a statement is the act of stating or reciting something. At first glance a statement does not contain any omission, and it cannot include words that were not actually spoken. However, the Court observed that in order to make a statement logical or internally consistent it is often necessary to read into it words that are not explicitly expressed. The Court held that even when a particular word is not expressly stated, it may be necessarily implied from what is directly said. For example, the Court noted a situation where a person named A had earlier said that he saw B stabbing C to death, but later before the Court he testified that he saw both B and D stabbing C to death. In such a case the Court could imply the word “only” after B in the earlier statement recorded by the police. The Court further explained that a positive statement may carry a negative meaning and a negative statement may carry a positive meaning. As an illustration, if a witness states that a man is dark, the statement implicitly conveys that the man is not fair, because describing the skin colour as dark necessarily excludes other colours. The Court also pointed out that sometimes the same person makes two statements at different times that cannot both be true. When such inherent repugnancy exists, the truth of one statement necessitates the falsity of the other. For instance, if on one occasion a person says that on entering a room he saw A shooting B dead with a gun, and on another occasion the same person says that on entering the same room he saw C stabbing B dead, the two statements cannot coexist; if the first is true, the second must be false, and vice-versa. The Court described the doctrine of recital by necessary implication, the concept of the negative or positive aspect of the same recital, and the principle of inherent repugnancy as doctrines that may appear to rely on omissions, but by construction those omissions are to be treated as part of the written statement. Accordingly, such omissions are not genuine omissions; they are deemed to be included in the statement by implication. Consequently, the Court held that a statement comprises not only the words expressly recorded but also those meanings that are necessarily implied from the express words. The Court then turned to the meaning of “contradict” as defined in the Oxford Dictionary, which means to affirm the contrary. Section 145 of the Evidence Act prescribes the method by which contradiction is effected. The Court explained that the cross-examining counsel must put to the witness the part or parts of the earlier statement that affirm the contrary to what is testified in evidence. This shows that there must be something in writing that can be set against another statement made in evidence. When the statement recorded before the police officer, as previously described, and the statement given before the Court are so inconsistent or irreconcilable that they cannot coexist, the Court said that one statement necessarily contradicts the other. The Court noted that this point was widely contested.

In this case, the Court observed that a statement includes every material omission that a witness would be expected to make in the normal course of testimony. The Court held that this view disregards the legislative intent expressed in section 162 of the Code of Criminal Procedure and ignores the non-evidentiary nature of such omissions except for the limited purpose of contradiction. According to the judgment, an unrecorded statement is entirely excluded from any evidentiary use, whereas a recorded statement may be employed for a specific purpose. The Court noted that even a perfunctory record of a statement is presumed to provide a sufficient guarantee of the correctness of the words actually recorded. However, if words that were not recorded are later introduced by fictitious inference, the object of section 162 would be defeated. By that process, when only a part of a statement is recorded, the omitted portion could be surreptitiously injected under the label of contradiction; conversely, if the whole statement is not recorded, it would be excluded altogether. The Court emphasized that allowing such practice would circumvent the safeguard imposed by the legislature, namely that a statement must be recorded to be used. The judgment further observed that under the Amending Act of 1955, the prosecution is also permitted to use a statement to contradict a witness, provided that the Court grants permission. If the construction of section 162 advocated by the learned counsel for the appellants were accepted, the prosecution could, in cross-examination, elicit facts that a witness had spoken to a police officer but that were never recorded, as well as facts that the witness had omitted before that officer. The Court stated that this consequence is not decisive for the question of construction, but it demonstrates unexpected repercussions of the argument that would prejudice the accused. The Court explained that because section 162 enables the prosecution, during re-examination, to rely on any part of the statement used by the defence to contradict a witness, the construction accepted by the Court could create an anomaly. The alleged anomaly is that the accused would be unable to pose a single non-contradictory question. In contrast, the prosecution, after a single contradiction raised by the defence, could re-examine the witness on any matter referred to in the cross-examination, whether or not it amounts to a contradiction. The Court expressed the view that no such anomaly arises from the existing statutory scheme. The judgment then turned to section 145 of the Evidence Act, which governs cross-examination concerning a previous statement made by a witness. One mode of cross-examination under that provision is to contradict the witness by referring him to portions of a writing that are inconsistent with his present testimony. While section 162 limits the accused’s right to cross-examine the witness in this manner, it simultaneously permits the prosecution to re-examine the witness in order to explain the matters that were referred to during the cross-examination. This power enables the prosecution to address an alleged contradiction by showing that, if the portion of the statement used to contradict is read in the context of any other part, its meaning may differ. As a result, the alleged contradiction could be clarified, its effect neutralized, and the witness’s testimony reconciled with the written record.

The Court observed that if another portion of a written statement were read, it might alter the meaning of the passage that had been used to allege a contradiction, and that such a reading could remove the supposed inconsistency. The Court further held that the expression “cross-examination” in the final line of the first proviso to section 162 of the Code of Criminal Procedure should not be interpreted as referring to the entire range of cross-examination. Instead, it must be limited to the specific type of cross-examination by contradiction that the proviso itself permits. The Court noted that this question has attracted divergent opinions among the various High Courts of the country. One concise view was expressed by Burn J in In re Ponnusami Chetty (1933) I.L.R. 56 Mad. 475 at page 476, where he stated that “omission” and “contradiction” can never be the same, whether regarded as a matter of logic or language. He explained that a contradictory proposition must be an actual statement, either affirmative or negative, and that to “contradict” means to “speak against” or, in a word, to “gainsay”. He further remarked that it is absurd to claim that silence can constitute a contradiction, because silence, however meaningful, is not diction and therefore cannot be contradiction. Referring to section 145 of the Evidence Act, the learned Judge added at page 477 that it would be a misuse of language to say that a witness is being contradicted by a writing when, in reality, the intention is to point out omissions from the writing. He agreed fully with the Sessions Judge of Ferozepore, who had observed that a witness cannot be confronted with the unwritten record of a statement that was never made. The Judge illustrated his point with a case where a witness, under section 162 of the Code, initially declared that he had seen three persons beating a man, but later, while testifying in Court, stated that four persons had been beating the same man. This example showed that an apparent omission could be treated as a contradiction through necessary implication. A Division Bench of the Madras High Court later endorsed this judgment in In re Guruva Vannan (1). In that decision, Mockett J, at page 901, respectfully agreed with Burn J’s reasoning in Ponnusami Chetty v. Emperor, emphasizing that a statement made under section 162 of the Code of Criminal Procedure cannot be filed to demonstrate that a witness is making statements in the witness box that he did not make to the police, and that a bare omission can never amount to a contradiction. He further noted that while a mere omission is not contradictory, a so-called omission in a statement may sometimes constitute a contradiction.

In the judgment, it was observed that an omission in a statement recorded under section 162 of the Code of Criminal Procedure may sometimes constitute a contradiction. For instance, when a police report identified three persons as the perpetrators and later, at trial, four individuals were mentioned, such a discrepancy could be treated as a contradiction. The Allahabad High Court, in Ram Bali v. State, articulated the principle underlying this view. It held that each witness was cross-examined about statements he had made in his deposition that were not found in his statement under section 162. The Court explained that a statement recorded by the police under that provision could be employed for a single purpose only – namely, to contradict the witness. Consequently, if there is no inconsistency between the witness’s testimony in Court and his recorded statement in the police diary, the latter cannot be used at all. However, if a witness testifies that a particular fact existed while he had, in his section 162 statement, either denied that fact or asserted the opposite, an irreconcilable conflict arises between the trial deposition and the police statement, and the latter may be used to contradict the former. Conversely, where the witness made no statement at all under section 162 concerning the fact, no conflict exists and the recorded statement cannot be used for contradiction. The Court further noted that in certain situations an omission in the section 162 statement may amount to a contradiction of the Court deposition; this occurs where what is actually stated is irreconcilable with what is omitted and, by implication, negates its existence. The Court then articulated two tests to determine whether a specific omission amounts to a contradiction: (i) an omission does not constitute a contradiction unless the content actually stated opposes what is omitted, and (ii) the test is whether any sentence or assertion can be identified that is irreconcilable with the witness’s deposition in Court. These observations were consistent with those of the Madras High Court in In re Guruva Vannan (1) and were echoed by the Patna High Court in Badri Chaudhry v. King-Emperor (2). At page 22, Macpherson J., examining section 162 after its 1923 amendment, remarked that the first proviso to section 162(1) creates an exception in favour of the accused, but that exception is narrowly circumscribed by the proviso itself. He explained that any part of a statement that has been reduced to writing may, in limited circumstances, be employed to contradict the witness who made it, but the limitations are strict: (1) only a statement made by a prosecution witness may be used; (2) the statement must have been reduced to writing; (3) only a part of the recorded statement may be used; and (4) …

It was held that a portion of a written statement may be employed for the purpose of contradiction only if several strict requirements are satisfied. First, the selected part must be duly proved. Second, it must directly contradict the evidence that the witness has offered in court. Third, its use must comply with section 145 of the Evidence Act, which mandates that the witness’s attention be drawn to the specific portion before it is used for contradiction. The Court further explained that any statement which fails to contradict the witness’s testimony cannot be proved under any circumstances, and it is impermissible to present an entire recorded statement merely to demonstrate that the witness omitted saying something to the investigating officer. The authorities cited for these principles included I.L.R. (1944) Mad. 897 and A.I.R. 1926 Pat. 20.

In the decision of Sakhawat v. Crown, the Court reiterated that section 162 allows statements to be used solely for contradiction. Contradiction was described as the setting up of one statement against another, not the setting up of a statement against nothing at all. An illustration was provided: if a witness testifies in court that “I saw A running away,” the witness may be contradicted by his earlier police statement that “I did not see A running away.” However, attempting to prove an omission by contradicting the witness’s testimony actually contradicts the witness’s alleged statement to the police, namely “I stated to the police that I saw A running away.” Because section 162 does not permit a witness to depose to the effect that he made such a statement to the police, there is no basis for eliciting the omission. The Court noted that the statutory language permits “any part of such statement … may be used to contradict,” and it does not authorize the use of the whole statement. Nonetheless, to establish an omission, the whole statement must be employed, as occurred in the case at hand.

The Court also addressed a contrary proposition which suggested that an omission could amount to contradiction when the omitted matter was something the witness was expected to mention and the Sub-Inspector was expected to record in the ordinary course of investigation. The Court warned that such a broadly phrased proposition could enable a trial judge to attribute to a witness statements he never made and did not intend to make, based purely on hypothetical considerations. A similar view was expressed by Bhargava and Sahai, JJ., in Rudder v. The State, where it was observed that certain omissions do amount to contradictions and have been treated as such by this Court and other courts in the country, specifically those omissions relating to facts that are expected to be included in a narrative given to the police, such as facts that relate to important features of the incident about which the deposition is made.

In the judgment the Court referred to the authority reported in 1957 All. 239, observing that a narrative presented to the police is required to contain every detail that relates to the important features of the incident about which the deposition is made. The Court noted that a similar view had been expressed in the earlier decisions of Mohinder Singh v. Emperor (1), Yusuf Mia v. Emperor (2) and State of M. P. v. Banshilal Behari (3). The learned counsel for the appellants relied upon a statement of law found in the treatise “Wigmore on Evidence”, volume III, third edition, page 725. In that work, under the heading “what amounts to a Self-contradiction”, the author tersely described a self-contradiction as follows: “… 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 same author further explained on page 733 that “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.” While the Court recognised that this passage was instructive, it held that it could not be pressed into service to interpret section 162 of the Code of Criminal Procedure because the United States, the jurisdiction of the text-book, has no provision comparable to section 162. Consequently, the Court ruled that it is neither permissible nor possible to interpret a statutory provision by reference to stray observations in a textbook that were made in a different legal context. The Court also observed that it was unnecessary to multiply case law to resolve the issue.

The Court then laid out the two conflicting views that had arisen in the jurisprudence. The first view, it said, was that omissions which are not necessarily implied as part of the statement cannot be used to contradict the testimony given in the witness-box. The second view required that any omission must relate to an important feature of the incident that the witness was expected to include in the police statement. The Court found that the first proposition faithfully carried out the legislature’s intention and conformed to the plain meaning of the words used in section 162. By contrast, the second proposition, the Court observed, stretched the meaning of the word “statement” to a breaking point and introduced an uncertain element, namely the need to determine what a particular witness would have said under the circumstances of the case and what the police officer should have recorded. When the statute says that a statement may be used to contradict a subsequent version given in the witness-box, the Court held that this language does not permit a construction that imports into the meaning of “statement” what the witness might have said to the police. Such a construction, the Court declared, is impermissible. From this discussion the Court derived the following principles: first, a written statement made by a witness before a police officer during the investigation may be used solely to contradict that witness’s testimony in the witness-box and for no other purpose.

The Court explained that a written statement obtained from a witness by a police officer may be employed solely to contradict that witness’s testimony when he appears in the court; it may not be used for any other purpose. The Court further held that a verbal statement which has not been reduced to writing by the police officer cannot be used for contradiction. The Court added that, even when a specific statement is not separately recorded, a statement that can be considered part of the recorded material may be used for contradiction, not because it is a literal omission, but because it is treated as forming an integral portion of the written record. The Court described this doctrinal device as permissible only in three limited situations. First, where a particular recital is necessarily implied from the recitals already contained in the statement; for example, when the recorded statement before the police indicates that the witness saw A stabbing B at a certain time, but in the courtroom the witness claims that A and C stabbed B at the same time, the court may imply the word “only” to mean that the witness originally saw only A stabbing B. Second, where a negative aspect can be derived from a positive recital; for instance, if the police statement records that a dark-skinned man stabbed B, while the witness in court says a fair-skinned man did so, the earlier statement is deemed to contain both the positive description of a dark-skinned perpetrator and the negative implication that the assailant was not fair-skinned. Third, where the statement given to the police and the statement made before the court are mutually exclusive; for example, if the police record says that after stabbing B, A fled by a northern lane, whereas in court the witness asserts that immediately after the stabbing A fled towards a southern lane, the two descriptions cannot both be true at the same moment, so if one is correct the other must be false. The Court clarified that these illustrations are merely representative and not exhaustive; a particular fact pattern may fall within more than one of these categories, and the trial judge must examine each case individually, compare the portions of the police-recorded statement with the courtroom testimony, and determine, in light of the principles set out, whether the recital proposed for contradiction satisfies the legal requirements.

The Court then turned to the question of what omissions from the police-recorded statement were barred by the learned Sessions Judge from being raised by the accused to contradict the witnesses’ current testimony. Counsel for the appellants argued that the accused intended to put certain omitted matters to the witnesses, but that the Sessions Judge had refused to allow two questions to be asked of PW 30 and had given a detailed reasoning for that refusal. The counsel further submitted that, because of the judge’s order, the accused chose not to pose the same questions again or to raise any additional questions concerning those omissions. The Court noted that it is the responsibility of the trial judge, after a careful comparison of the recorded police statement with the statements made in the witness box, to decide whether the specific recitals sought to be used for contradiction meet the statutory criteria. The judge must consider the principles explained earlier and render a ruling on each proposed use of an omitted portion, ensuring that the admissibility of such contradictions conforms to the law.

In this case, the counsel for the respondent argued that the learned Sessions Judge had prohibited certain questions about omissions from being asked to PW-30 and to other witnesses. The counsel listed five alleged omissions: first, a warning given by the gang members to the audience at the music party not to move from their places; second, the presence of a gas lantern; third, the pursuit of Bharat Singh by the assailants; fourth, the gang’s examination of the dead bodies; and fifth, the gang’s return in front of Bankey’s house. The counsel for the respondent contested this description and maintained that only two of those omissions – the presence of a gas lantern and the examination of the dead bodies – had actually been put to PW-30 during cross-examination, and that no other omissions had been addressed to him or to any other witness. Furthermore, the respondent’s counsel asserted that the Sessions Judge’s order did not prevent the defence from presenting all the omissions to the witnesses, leaving the question of admissibility to the judge’s determination.

The respondent’s counsel further contended that, before the learned High Court judges, the appellant’s advocate had merely complained that the two omissions had not been allowed, without claiming an intention to rely on any additional omissions. The advocate had refrained from raising the other omissions because he believed the Sessions Judge would reject them based on his earlier order. An application was later filed in the High Court seeking to summon eight eye-witnesses on the ground that the Sessions Judge had not permitted the defence counsel to present the material contradictions to them. The application, filed on 1 May 1957, did not specify how many of the alleged omissions the accused intended to put to the eye-witnesses if they were called. No effort was made to obtain a decision on this application before the main arguments were heard, apparently because both the Court and the parties thought the matter could be dealt with after hearing the arguments.

After the appellants had been fully heard, the High Court dismissed the application on 30 July 1957, providing detailed reasons for the dismissal in a judgment delivered on 11 September 1957. The High Court’s judgment made clear that the argument before it concerned only the two omissions that had been sought to be put to PW-30 and were disallowed, leading the accused not to present those omissions to other witnesses. It was not alleged that the accused had intended to use any other omissions for contradiction, as the defence counsel had presumed the Sessions Judge would automatically reject them. The High Court held that the two omissions constituted material contradiction and concluded that the Sessions Judge had erred in disallowing them.

The Court observed that the learned Sessions Judge had excluded the two specific omissions, yet had ignored those particular circumstances and had based the substantive findings on matters that were regarded as more certain. The Court further reasoned that, had the High Court Judges truly erred in their appreciation of the arguments presented by counsel for the appellants concerning the omissions, the accused would have been expected to highlight that error prominently in their application for special leave. Even if the accused failed to emphasize that point in the special leave application, they could still have submitted an affidavit, sworn by the advocate who had appeared for them before the High Court, stating that, despite having specifically argued the relevance of the other omissions, the High Court Judges had, by mistake or oversight, failed to notice that argument. The Court noted that counsel who had argued before the Supreme Court had not made those arguments before the High Court; consequently, that counsel was not in a position to claim that the High Court Judges had omitted consideration of an argument that had not been advanced before them. Nonetheless, the counsel made vigorous efforts before this Court to persuade the judges that a mistake must have occurred. The counsel asserted that he had, in fact, relied on all of the alleged omissions in supporting his contention that the prosecution’s case had developed over time, and therefore he must also have relied on those omissions in the context of statements made under section 162 of the Code of Criminal Procedure. On the contrary, the Court observed that the High Court Judges had examined all of the alleged omissions in relation to the contention of case development, yet they had considered only two omissions when addressing the contention based on section 162. This indicated that the counsel, for reasons known only to him, had chosen not to rely on every alleged omission. The deposition of P.W. 30 demonstrated that only two omissions from the police statement—namely, the existence of a gas-lantern and the examination of the dead bodies by the gang—were put to him during cross-examination, and the learned Sessions Judge disallowed those questions on the ground that the counsel could not point to any law authorising them. Although the witness was examined at length, no other alleged omissions from the police statement were sought to be put to him. The short orders issued by the Sessions Judge at the time each of the two questions was raised showed that the judge had not issued a blanket ruling that no omissions from a police statement could be put to a witness; rather, the rulings were made with respect to the particular nature of the omissions relied upon. After the entire evidence of P.W. 30 was concluded, the Sessions Judge issued a considered order. Even in that final order, the judge did not exclude all omissions as inadmissible, but expressly indicated the limited scope of the earlier disallowance.

In this case the Court expressed the view that when the testimony given in the witness box conflicted with matters that had been omitted from the statements made to the police, such a conflict could be treated as a material contradiction. The Court also noted that even after its earlier order, the appellants remained free to point out all such omissions, but they chose not to do so. These facts supported the impression of the High Court judges that the arguments presented before them concerned only the two specific omissions that had been put to P. W. 30 during cross-examination. Accordingly, the Court held that the only two omissions that had been raised were those relating to the existence of a gas-lantern and to the scrutiny of the faces of the deceased by the appellants; these matters had been intended to be put to the other witnesses as well, but the ruling of the trial court had prevented that. The Court then examined whether those two omissions satisfied the test it had laid down. The witness had testified in Court that a gas-lamp had been present and that some of the miscreants had examined the faces of the dead bodies. In the statements made to the police, those two facts were not mentioned, although some witnesses had stated that lanterns were present. Regarding the gas-lamp, the Court observed that the scene of the occurrence was not a small room but an area extending from the well to Bankey’s house, and therefore the omission of reference to a gas-lamp in the police statements did not necessarily mean that no gas-lamp existed anywhere in the locality where the incident took place. Moreover, the term “lantern” was deemed broad enough to include a gas-lantern, so it could not be inferred that the witnesses who spoke of lanterns were asserting the absence of a gas-lamp. The Court further said that the statements made to the police and those made in Court could coexist without any inconsistency, because there was no repugnancy between them; even if one assumed that “lantern” excluded “gas-lantern,” both could still be present at the scene. The same reasoning applied to the matter of the scrutiny of the faces of the dead bodies. The police statements described the appellants’ movements, indicating that they had shot at people and fled with Bharat Singh’s gun. The present evidence that, during their pursuit, they looked at the faces of two dead bodies did not contradict the earlier version, as such an incident fitted within the facts already recorded. The Court concluded that the appellants could have shot at the audience, pursued them, taken the gun, and subsequently examined the dead bodies, and that the alleged omission did not satisfy any of the principles laid down by the Court. Consequently, the Court found it unnecessary to express an opinion on whether those two omissions amounted to a contradiction within the meaning of section 162 of the Code of Criminal Procedure.

The appellants argued that, in accordance with the meaning of section 162 of the Code of Criminal Procedure, they had suffered prejudice during their trial. Their final contention, presented by counsel for the appellants, was that the judges of the High Court had acted improperly by examining the truthfulness of the witnesses with reference to the contents of the first information report. A review of the High Court’s judgment shows that the counsel for the appellants submitted, among other points, that the witnesses should not be believed because their present testimony differed from the statements recorded in the first information report. The High Court judges accepted that such a procedure was permissible, and even on that basis they rejected the plea that the prosecution case had improved. In effect, the judges addressed the argument raised by the counsel for the appellants. It was therefore unwarranted to claim that the judges erred in law by relying on the first information report to challenge the witnesses, simply because they had admitted the evidence despite certain omissions in that report. Consequently, the present Court affirmed the judgment of the High Court and dismissed the appeal.

Justice Hidayatullah delivered the judgment, noting that it had been prepared in conjunction with his learned brother Justice Imam. Both judges agreed that the appeal should be dismissed, but they chose to set out in their own words the reasons for that decision. The principal ground advanced by the appellants was that they had not received a fair trial because they were denied the right to cross-examine the prosecution witnesses concerning the statements those witnesses had made to the police during the investigation. The trial judge had prohibited two such questions, and the counsel for the appellants maintained that this decision prevented him from raising additional inquiries about other aspects of the witnesses’ police statements. While the order of the trial judge was said to have to be respected, the appellants contended that it was illegal, arguing that a correct reading of section 162 of the Code of Criminal Procedure entitled them not only to pose the two excluded questions but also to ask further questions arising from the police statements of the witnesses. The purpose of cross-examination, they asserted, is to test the reliability of the witnesses both regarding the facts of the occurrence and their identification of the participants. Several issues could have been explored through permissible questioning, which might have led to an effective cross-examination and potentially convinced the trial judge that the witnesses were wholly unreliable. In a case of this nature, the appellants identified two principal questions of vital importance.

In this case the Court identified two matters of particular importance for the cross-examination of the witnesses. The first matter concerned the extent to which the witnesses had altered or improved the story they gave in their testimony before the Court as compared with the statements they had made to the police about the occurrence. The second matter dealt with whether there had been sufficient opportunity and adequate illumination at the scene to allow the witnesses to make a reliable identification of the persons involved. The Court observed that, although this issue had been the subject of some controversy, it could be assumed that the defence counsel had interpreted the trial Judge’s order disallowing the two questions as indicating that every similar question relating to omissions in the police statements, when raised in Court, would also be disallowed. Consequently, the defence counsel did not make any further attempt to put additional questions to the witnesses on that basis. The Court further noted that, in the present case, the defence counsel had failed to lay any proper foundation on which the two questions that were struck down could have been properly framed. Because of this lack of foundation, the Court held that the trial Judge’s decision to disallow those two questions was not improper. Accordingly, the Court concluded that the trial Judge had not acted in a manner that could be described as infringing the provisions of section 162 of the Code of Criminal Procedure, nor had he violated any rule of the Indian Evidence Act or the principles of natural justice.

Johari Chowkidar had given a brief report of the occurrence to the police station. In his statement he definitely mentioned several points: the names of the persons he recognised as being present at the incident, the number of individuals who were killed and injured, the removal of a gun that had been in the possession of Bharat Singh, the fact that Bankey Kumhar had fired his gun at the culprits in such a way that some of the assailants must have been wounded, and the existence of illumination from both the moon and a lantern. The principal comment in his report was that it did not state that the culprits had moved from the well toward the open area where villagers had gathered to listen to music. In contrast, the first information report indicated that the firing had taken place from the parapet of the well. The Court observed, however, that Johari’s statement made it clear that the culprits had taken away the gun belonging to Bharat Singh, an act that could only have been possible if the culprits had moved from the well toward the place where the villagers were assembled. The Court also noted that the first information report said the culprits had come from the southern lane, while the evidence presented in Court indicated that they had approached the well from the eastern lane. This discrepancy was characterized as minor, and it was suggested that Johari had been primarily concerned with reporting the first firing from the well and might have mistakenly recorded the direction from which the culprits had approached. Moreover, Johari’s statement omitted any reference to the culprits issuing a warning that no one should run away as they advanced from the well, whereas the witnesses in Court testified that such a warning had indeed been given. The Court regarded this omission as a detail that Johari might not have deemed important enough to include in his brief report.

In the present matter the Court observed that the witness identified as Johari gave only a brief statement because he was eager to prompt the police to reach the scene of the incident without delay. Consequently, his account omitted any reference to the alleged act of the accused examining the dead bodies, looking at the faces of the victims and proclaiming that a man named Asa Ram, who was a target of the assailants, had been killed. The Court noted that such particulars were likely considered by Johari to be non-essential for his immediate purpose. The first information report, according to the Court, made no mention of illumination by gas light; it did, however, state that there was light from a lantern and that moonlight was also present. The presence of lantern light together with a full moon, the Court held, was sufficient to enable persons present to recognise individuals who were already known to them. It was further established that the accused had been known for several years to the witnesses who later identified them as participants in the occurrence. The Court added that the fact that the report mentioned lantern light did not conclusively exclude the possibility that gas light might also have been present. Johari’s narration, the Court pointed out, clearly indicated that the perpetrators did not remain continuously at the well, because they had to move in order to seize a gun that was in the possession of Bharat Singh. Moreover, the accused must have lingered at the scene for a period, allowing Bankey Kumhar to fire his weapon at them and leading Johari to become certain that some of the assailants had sustained injuries. The Court clarified that only selected details had been referred to, not every discrepancy, for the purpose of assessing whether the alleged improvement in the witnesses’ testimony at trial, compared with their statements to the police, concerned matters essential to the prosecution’s case. From the foregoing, the Court concluded that even if the defence had been permitted to raise questions about the alleged omissions in the witnesses’ police statements, such enquiry would not have rendered the witnesses’ trial evidence unreliable with respect to any material aspect of the incident or the identification of the accused. Accordingly, the Court found that the appeal lacked merit. Nevertheless, because substantial argument had been advanced concerning the scope of the right to cross-examine and the proper interpretation of section 162 of the Code of Criminal Procedure, the Court deemed it necessary to address the submissions made by counsel for the appellants. The Court noted that references were made to the provisions of the Code of Criminal Procedure of 1861 and 1872, and specifically to section 162 of the 1872 Code, which stipulates that, except for a dying declaration and matters falling within section 27 of the Indian Evidence Act of 1872, no statement made to a police officer during investigation and reduced to writing may be used as evidence.

Section 162 of the Code of 1898 declared that a statement reduced into writing by a police officer could not be admitted as evidence against the accused. The section, however, did not impose any limitation on the breadth of the accused’s right to cross-examine a prosecution witness about the content of that statement. While the main clause of Section 162 excluded the written statement from evidentiary use, the proviso to that section expressly provided that, notwithstanding the prohibition, the accused was permitted to employ the same written statement for the purpose of impeaching the credibility of the witness, exactly as prescribed by the Indian Evidence Act of 1872. Accordingly, up to the year 1898 there was no statutory restriction on the extent to which an accused could cross-examine a police witness concerning his statement to the police. The 1898 provision therefore entirely barred the evidential use of a written statement, but the proviso preserved the accused’s ability to attack the witness’s credit in the manner laid down in the Indian Evidence Act, 1872. This framework meant that, although the written statement could not be presented as proof of the facts, the accused retained the full right to question the witness about that statement and to use it as a tool for challenging the witness’s reliability.

Under the Indian Evidence Act, a witness’s credit may be challenged under Sections 145 and 155, which together provide a wide field for impeaching credibility. When the objective is to contradict a witness about a prior statement that has been reduced into writing, Section 145 obliges the party seeking contradiction to produce to the witness the specific parts of the writing that are to be used for that purpose. There can be no doubt that the provisions of the Code from 1861 to 1898 never curtailed the accused’s right of cross-examination. Those provisions were intended solely to protect the accused by preventing a written police statement from being treated as substantive evidence, while leaving unchanged the right to cross-examine the witness to the fullest extent permissible under the Indian Evidence Act, thereby showing the witness to be unreliable. The remaining question for the Court was whether the amendment of Section 162 in 1923 introduced a radical change that suggested the Legislature had taken a retrogressive step and intended to deprive the accused of the right to cross-examine prosecution witnesses about their police statements, except for the narrow purpose of using the written statement to contradict the witness under Section 145. The amendment of 1923 was made in the hope of resolving the various doubts that had arisen from divergent judicial opinions concerning the meaning of the earlier provisions, but it did not fundamentally alter the scope of the accused’s cross-examination rights.

The Court observed that the provisions of the 1898 Code had been interpreted in many different ways and that the amendment made in 1923 had not clarified the situation; the revised section continued to be difficult to interpret, and the Court therefore set out to give it meaning. Section 161 of the Code authorises a police officer to question orally any person who is believed to have knowledge of the facts and circumstances of a case. It also permits the officer to put any answer given during such an oral examination into writing, and when the officer does so, he must create a separate written record for each individual whose statement is taken. Although the legislature allowed the making of written statements, it simultaneously imposed restrictions on how those statements could be used at the inquiry or at trial of the offence. The first restriction, as the Court noted, is that a statement made to a police officer and reduced to writing must not be signed by the person who gave it. The purpose of this restriction, the Court explained, is readily understood: the legislature was likely concerned that witnesses might feel bound by a signature and therefore be reluctant to give candid testimony, fearing that they would be compelled to stand by the written statement regardless of its truth. The legislation further provides that any such statement, however recorded, or any part of it, shall not be employed for any purpose except as permitted by the relevant sections at the inquiry or trial in relation to the offence that is under investigation at the time the statement is wade. The Court admitted that the object of this provision is not easily discerned, but it may be intended to deter overly aggressive police officers from pressuring witnesses to refine their statements. The Privy Council, as quoted by the Court, suggested that the legislature’s intention could be summarised as a desire to encourage free disclosure of information and to protect the person making the statement from potential unreliability of police testimony concerning alleged statements, or perhaps both. It is also possible, the Court added, that the legislature foresaw that statements obtained under the influence of the investigating agency, if not limited to use for the benefit of the accused, could cause considerable prejudice to the accused. Nevertheless, whatever the purpose behind the restrictions, the Court held that the statements, regardless of the manner in which they are recorded, may be used only to the extent expressly allowed by the statutory provision. The prohibition expressed in the words “any purpose” is therefore essentially absolute. The statute then contains two provisos. The first proviso grants the accused the right to use such statements to contradict a prosecution witness in the manner provided by section 145 of the Indian Evidence Act. It also gives the prosecution the right to rely on the statement for the purpose of re-examining the same witness, but only to explain any point that was raised during cross-examination. When the Court analysed the first proviso, it identified the following components: a prosecution witness whose statement has previously been reduced to writing; a request made by the accused; the provision of a copy of the earlier statement to the accused; and the use of any part of that statement, if properly proved, to contradict the witness in accordance with section 145 of the Indian Evidence Act.

In this case, the Court explained the conditions under which a person who had been called as a prosecution witness could have his earlier written statement used against him. The conditions required that the witness had previously given a statement that had been reduced to writing, that the accused made a request for such a statement, and that the accused was supplied with a copy of that prior statement. The purpose of supplying the copy was to enable any part of the statement, if it could be proved, to be used to contradict the witness in the manner prescribed by section 145 of the Indian Evidence Act. The Court further held that when the accused exercised the right to use the prior statement for contradiction, the prosecution was entitled to rely on the same statement during the re-examination of the witness, but only to the extent of explaining matters that the witness raised in his cross-examination. The Court then set out the operation of section 145, which allowed a witness to be cross-examined about his previous written statements that were relevant to the matters in question, without the necessity of first showing the writing to the witness or proving it. However, if the intention was to contradict the witness by the writing, the Court required that the witness’s attention be drawn to the specific parts of the writing that would be used for contradiction before the writing could be proved. From this analysis, the Court derived three principal results: first, that witnesses could be cross-examined about prior written statements; second, that such writings need not be shown to the witness or proved beforehand; and third, that when the purpose was to contradict, the witness must be made aware of the relevant portions before any proof of the writing. The Court noted that Judge Subba Rao J. had confined the accused’s use of the prior statement solely to the mechanism of contradiction as described in the third result, and had held that the accused had no right to cross-examine under the first two results. Subba Rao J. based this restriction on the wording of section 162 of the Code of Criminal Procedure, which speaks of using any part of the statement “if duly proved” to contradict the witness in the manner of section 145. The Court observed that the allowance for the accused to use the prior statement for contradiction intended that the statement could not be employed to corroborate the witness, and that a basis for contradiction could arise from a contrary statement, an irreconcilable statement, or material omissions. It further clarified that the accused could establish a contradiction only by cross-examining the witness to the extent necessary to reveal the contradiction and nothing more. Rejecting Subba Rao J.’s narrow view, the Court expressed respectful disagreement and held that reference to section 145 brought in the full mechanism of that provision, not merely the limited part concerning contradiction. Consequently, while the accused could not exceed the limits set by section 162, the Court affirmed that the accused was entitled to cross-examine the witness in order to establish a contradiction, in accordance with the complete provisions of section 145.

The Court held that, notwithstanding the prohibition contained in the relevant provision, a party may lawfully cross-examine a witness in order to draw out a contradiction between one statement and another. The significance of this principle diminishes where the contradictions are obvious and can be placed before the witness without any need for cross-examination, such as when a witness first says, “I saw A hit B,” and later declares, “I did not see A hit B.” However, the Court observed that there are many circumstances in which the contradiction is not apparent on its face and becomes crucial to the resolution of the case. The Court illustrated this point by describing two hypothetical testimonies. In the first, a witness states, “When I arrived at the scene I saw that X was running away, chased by A and B who caught him.” In the second, the same witness says, “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.” The first account omits two material facts – the extraction of the dagger and the stabbing of D – which are present in the second account. These omissions create a contradiction concerning the stage of the incident at which the witness began his observation. The Court explained that section 145 of the Indian Evidence Act permits a witness to be contradicted by a written statement, and that the same written statement may be used under section 162 of the Code of Criminal Procedure for the purpose of contradiction.

The Court further noted that the mere existence of omissions does not automatically generate a contradiction on a relevant issue, but that the witness’s statements often contain numerous details, and when a witness is asked to repeat his version, he may omit or add facts. It is for the accused to decide how to use such omissions or additions, and the Court recognized that some of them may be essential to uncovering the truth. Consequently, the Court rejected the view that the language of section 162 was intended to forbid cross-examination aimed at determining which of the two versions accurately reflects the witness’s observations. The inclusion of the words “re-examination” and “cross-examination” in the same proviso, the Court held, indicates that cross-examination is contemplated and that the process of contradiction under section 145 comprises both an earlier stage of eliciting contradictions and a final stage of confronting the witness with the written statement. Re-examination, according to the Court, is permissible only after a proper cross-examination. The Court emphasized that the cross-examination must be strictly directed at exposing a contradiction between the statements and must not serve any other purpose; any cross-examination that goes beyond this scope would be barred by section 162, which allows the earlier statement to be used solely for contradicting the witness.

In considering the purpose of cross-examination, the Court illustrated that the process may be used to point out contradictions between a witness’s testimony in court and his earlier statement to the police. For example, the Court imagined questioning a witness as follows: “I put it to you that when you arrived at the scene X was already running away and that you did not actually see him stab D, as you have deposed today?” The witness would answer, “No. I saw both events.” The next question would be, “If that is so, why is your statement to the police silent on the stabbing?” to which the witness might respond, “I stated both facts to the police.” By confronting the witness with his prior statement, the Court explained that the testimony given in court constitutes direct evidence, whereas the earlier statement to the police is only circumstantial evidence of possible complicity and does not rise to the level of direct proof. The Court further noted that if the questions were framed instead as, “What did you state to the police?” or “Did you state to the police that D stabbed X?” such inquiries would contravene section 162 of the Code of Criminal Procedure because they would seek a fresh version of events rather than creating a contradiction of the existing statements.

The Court observed that the precise form of cross-examination must vary according to the facts of each case, the counsel presenting the questions, and the particular statements being examined, and therefore no single rigid rule can govern all situations. The propriety of any question must be assessed in light of sections 145 of the Evidence Act and 162 of the Code, based on the specific evidence before the Court. Nonetheless, the Court expressed the view that material omissions in a prior statement amount to vital contradictions that can be established by cross-examination and by confronting the witness with his earlier narrative. Referring to the Oxford English Dictionary, the Court explained that “to contradict” means to be contrary to, to oppose, or to declare false, while “contradiction” denotes a state of opposition, variance, or inconsistency. The Shorter Oxford English Dictionary offers similar definitions. The Court held that these meanings necessarily encompass an omission in a previous statement when, by implication, the omission creates a contradiction. Consequently, such omissions fall within the first proviso of section 162, and questions addressing them in cross-examination are permissible.

In this case the Court observed that it was not possible to lay down a rigid rule prohibiting the use of any other kind of omission to contradict a witness, provided that the proper foundation for asking such a question had been established. The Court noted that the expression “to contradict him” appearing in section 145 of the Evidence Act must be given the same meaning as the phrase “to contradict such witness” found in section 162 of the Code of Criminal Procedure. The Court then considered whether, in a civil suit where the provisions of section 162 of the Code of Criminal Procedure did not apply, it would be correct to say that only the type of omission suggested by the learned brother could be put to a witness and no other omission could be relied upon. The Court rejected that narrow view, stating that a question of cross-examination concerning an omission in a previous statement, which if made would have been recorded, could indeed be put to the witness. The Court emphasized that the facts and circumstances of each case would determine whether an omission different from the one described by the learned brother could be used to contradict a witness, and that it was for the trial judge to decide in each case whether the question was appropriate. The Court explained that the purpose of cross-examination was to test the truthfulness of the witness’s evidence in the examination-in-chief and also to impeach the witness’s credit. It affirmed that not only was the accused entitled to challenge the credibility of a witness, but the trial court also had a duty to ensure that the witnesses were reliable. Accordingly, the Court warned against adopting a hard and fast rule. Turning to another perspective, the Court assumed that the interpretation advocated by the State of section 162(1) was correct and compared the rights of the accused and the prosecution. Under that interpretation, the accused would have no right to cross-examine the witness on the basis of contradiction; only the specific portion of the prior statement that conflicted with the witness’s testimony could be highlighted, and the witness could be asked to explain that conflict. In contrast, the prosecution could use any part of the prior statement during re-examination, not only to clarify the contradiction but also to address any other matter raised in the cross-examination. Thus, if “contradiction” did not include the right to cross-examine, the prosecution’s right would necessarily extend to re-examination on any issue requiring explanation, allowing the prosecution to ask leading questions with the Court’s permission. Consequently, the accused, by relying on a single narrow contradiction, would place the entire prior statement in the hands of the prosecution for explanation, a result the Court considered undesirable and contrary to the intended scope of section 162 of the Code of Criminal Procedure.

In the case, it was observed that when the accused raises only a single question that is of the nature of cross-examination, the effect is that he creates a narrow “contradiction”. Because of this narrow contradiction, the prosecution is allowed to examine the entire previous statement and to give the witness an opportunity to explain any part of that statement during re-examination. The right to re-examine includes, with the Court’s permission, the ability to ask leading questions. Consequently, the accused, by making only one narrow contradiction, places the whole of his earlier statement at the disposal of the prosecution, which may then seek to explain the entire statement with its assistance. The Court questioned whether the legislature had intended to impose such a heavy burden on the accused for a relatively small right. It concluded that the legislature did not intend this result, and that it was unnecessary to read the word “cross-examination” in the proviso of section 162 of the Code of Criminal Procedure in any sense other than its ordinary meaning. Both the accused and the prosecution were held to have a right limited to contradictions. This limited right involves the accused conducting cross-examination of the witness concerning the specific contradiction, as provided by section 145 of the Indian Evidence Act, and the prosecution being permitted to re-examine the witness on matters referred to in that cross-examination. The prosecution, however, may not roam freely to explain every discrepancy; it may address only those discrepancies that the accused has brought to light under his limited right.

The Court further explained that reading section 162 in the manner it advocated gives effect to every part of the provision and avoids the startling and, as the Court put it, “absurd” outcomes previously described. The Court acknowledged that it is not easy to illustrate how a cross-examination of a previous statement should be conducted without entering into lengthy exposition. For those interested in the technique, the Court referred to the trial of Mrs. Maybrick in the Notable English Trials (1912), pages 77-79, and to the trial of William Palmer, pages 35-36 and 50-51, noting that examples of the method appear in many leading trials. The Court asked whether the legislature intended to give this right and concluded affirmatively, emphasizing that the provision also allows the prosecution a chance to re-examine the witness to explain any matter raised in the cross-examination. Respectfully, the Court disagreed with the construction proposed by a learned brother, although it agreed with the ultimate result. The Court warned that a too-narrow construction would diminish the protection afforded to the accused and could impede effective cross-examination on the accused’s behalf. Finally, the Court turned to the specific questions that had been asked and disallowed during the cross-examination of Bankey, P. W. 30, and listed the first of those questions concerning the statements made to the investigating officer.

The trial judge asked the witness whether he had rolled the dead bodies of Nathi, Saktu and Bharat Singh. He also asked whether the witness examined those bodies and told the investigating officer that the face of Asa Ram resembled that of the deceased Bharat Singh. A second question sought to know whether the witness had informed the investigating officer about the presence of the gas lantern. The Court found both questions to be defective from the outset because they attempted to elicit from the witness a version of his earlier police statement only to contradict it. What is required, the Court explained, is to take the police statement as it stands and demonstrate any inconsistency between that statement and the evidence presented in the trial court. To proceed otherwise would exceed the limits imposed by section 162, which absolutely forbids any cross-examination beyond pointing out contradictions. Section 162 therefore restricts cross-examination to contradictions alone and does not permit even an indirect purpose, such as eliciting explanations for omissions. In the illustration given by the Court, the witness was not asked what he had said to the police; instead, he was reminded of his earlier statement and asked to explain any omission. The Court noted that the police statement is duly proved either before or after the trial to establish what the witness had actually asserted at that time. Accordingly, the Court held that the two questions were defective for the reasons explained and that the trial judge was correct in excluding them. The Court added that some of the reasons given by the trial judge might not withstand close scrutiny. The matter was not pursued with proper follow-up questions, and it appeared that similar lines of inquiry were not presented to the witness out of deference to the earlier ruling. The Court observed that the accused could blame themselves if they had not taken the opportunity to raise those points.

The learned Judges of the High Court, after examining all the material placed before them, held that the two circumstances pointed out by the defence did not create any necessity for the witnesses to identify the accused, and that the evidence otherwise demonstrated that the witnesses had ample opportunity to recognise the accused. Consequently, the High Court concluded that the record contained sufficient proof to support the finding that the witnesses had indeed recognised the accused, and it treated this conclusion as a matter of fact that was not open to further judicial scrutiny. The Supreme Court observed that no additional point of law or fact had been raised on behalf of the appellant, and therefore there was no basis on which to disturb the High Court’s determination. In the absence of any viable ground of appeal, the Supreme Court ordered that the appeal be dismissed in its entirety, thereby leaving the High Court’s judgment undisturbed. The dismissal of the appeal thus brought the proceedings to a final conclusion, with the decision of the High Court remaining the final determination of the matters raised before the Court. Accordingly, the appellate court emphasized that its role was limited to reviewing legal errors and not to re-evaluate factual findings that had been properly established by the trial courts.