ISMAIL BIJALBHAI v. STATE — 1966 DIGILAW 105 (GUJ)

B. J. DIVAN, A. D. DESAI, J. ( 1 ) BEFORE going to discuss the evidence of the different eye-witnesses we must point out that in this particular case as in several other cases which we have recently come across we have found that the learned trial Judge has allowed questions to be put in the cross-examination of the different prosecution witnesses allowing omissions from the statement before the police to be brought on the record. The witness in each case stated a particular version before the Court and some parts of that version were not to be found in the police statement and all such omissions from the police statement as compared with the deposition before the Court were allowed to be brought on the record in the cross-examination of the witness and were also allowed to be proved through the testimony of the Police Officer who recorded the police statement of the witness concerned. ( 2 ) IN Tahsildar Singh v. State of U. P. A. I. R. 1959 S. C. 1012 the Supreme Court considered the scope of sec. 162 Cr. P. C. and also considered under what circumstances omissions from the statement before the police can be allowed to be brought on the record of the case. After examining the entire legal position Subba Rao J. (as he then was) who delivered the judgment on behalf of himself B. P. Sinha Kapur and Sarkar JJ. summarized the legal position in para 26 at page 1026 of the report and observed as follows:-FROM the foregoing discussion the following propositions emerge: (1) A statement in writing made by a witness before a police officer in the course of investigation can be used only to contradict his statement in the witness box and for no other purpose; (2) statements not reduced to writing by the police officer cannot be used for contradiction; (3) though a particular statement is not expressly recorded a statement that can be deemed to be part of that expressly recorded can be used for contradiction not because it is an omission strictly so-called but because it is deemed to form part of the recorded statement; (4) such a fiction is permissible by construction only in the following three cases: (i) when a recital is necessarily implied from the recital or recitals found in the statement;. . . . . . . . . . . . . . . . . . . (ii) a negative aspect of a positive recital in a statement;. . . . . . . . . . . (iii) when the statement before the police and that before the Court cannot stand together;after each of the cases in which the fiction is permissible according to Subba Rao J. illustrations are set out and in para 27 of the judgment Subba Rao J. has observed that the aforesaid examples are not intended to be exhaustive but only illustrative. Some instances may fall under one or more heads and he proceeded to observe as follows:-IT is for the trial Judge to decide in each case after comparing the part or parts of the statement recorded by the police with that made in the witness box to give a ruling having regard to the aforesaid principles whether the recital intended to be used for contradiction satisfies the requirements of law. It is only if the omission from the police statement falls under one of the three categories viz. (i) where there is a recital necessarily implied from the recital or recitals found in the statement (ii) where a negative aspect of a positive recital in the statement occurs or (iii) when the statement before the police and that before the Court cannot stand together that the deeming fiction referred to by Subba Rao J. in the fourth head in para 26 can be raised and in order to raise the deeming fiction the case must fall under one or the other of the three clauses. We have found that in the instant case and in many other cases as well the learned trial Judges do not decide at the stage of permitting such questions to be asked dafter comparing the part or the parts of the statements recorded by the police with that made by the witness in the witness-box; nor do they give a ruling in the light of the principles laid down in Tahsildar Singhs case (supra) whether the omission satisfied the requirement of law and amounted to contradiction. In order to see that the record is not burdened unnecessarily and inadmissible evidence is not allowed to go on the record it is for the trial Judge to decide in each case and to give his ruling as to whether the particular omission from the police statement which is sought to be brought on the record falls in any one or more of the three classes mentioned by Subba Rao J. in para 26 of his judgment. If without deciding this point and giving his ruling on the matter the learned trial Judge allows questions to be put regarding omissions from the statements before the police and materials are allowed to come on the record then it would amount to allowing inadmissible evidence on record regarding those questions which do not fall within one or more of the classes of cases referred to under heading (4) by Subba Rao J. in the passage cited above. It is the duty of the trial Judge to see that only such evidence as is admissible according to law comes on the record and by permitting all questions relating to omission from the statement before the police and by allowing all such omissions to be brought on the records the trial Judge sometimes permits inadmissible evidence to come on the record of the case and to that extent fails in his duty. We hope that in future the observations made in the course of this judgment and those made by Subba Rao J. in para 27 of the report will be borne in mind by the trial Judges ( 3 ) MR. Mehta appearing on behalf of the appellants relied on two subsequent decisions of the Supreme Court and sought to argue that the decision in Tahsildar Singhs case (supra) was subsequently modified by the Supreme Court. Those decisions are Nagindra Bala v. Sunil Chandra A. I. R. 1560 S. C. 706 and Sunder Singh v. State of Punjab A. I. R. 1962 S. C. 1211. In Nagindra Balas case what happened was that one Col. Mitra the father of Nirmal the particular witness in that case died as a result of the injuries that he had received in the course of an incident. In his police statement this particular witness Nirmal had stated that Sunil the accused in the case had given blows to Col. Mitra. Mitra the father of Nirmal the particular witness in that case died as a result of the injuries that he had received in the course of an incident. In his police statement this particular witness Nirmal had stated that Sunil the accused in the case had given blows to Col. Mitra. He had not stated that one of blows fell on the left t temporal region of Col. Mitra. The post mortem examination showed that the death occurred because of the fracture of the left temporal bone of the victim Col. Mitra. It was in that context that S. K. Das and A. K. Sarkar JJ. considered the decision in Tahsildar Singhs case (supra) and in para 27 at page 715 of the report S. K. Das J. has observed as follows:that decision dealt exhaustively with sec. 162 Criminal Procedure Code and laid down certain propositions to explain the scope of that section; it was however observed that the examples given therein were not exhaustive and the Judge must decide in each case whether the recitals intended to be used for contradiction satisfied the requirements of the law. Now in Nagindra Balas case in the course of the cross-examination it was suggested to witness Nirmal that Col. Mitra did not fall on the ground but had fallen on a letter-box and thus from the version which was put forward in the cross-examination of this witness it appears to have been argued before the trial Court that Nirmal had improved upon his story from mere blows to a blow landing on the left temporal region so as to account for the fatal injury to Col. Mitra. In para 28 of the report S. K. Das J. has observed as follows:now on the principles laid down in Tahsildar Singhs decision (A. I. R. 1959 S. C. 1012 Nirmals failure to mention before the police that his father was lying on his back was not a contradiction; but his failure to mention that a first blow on the left temple was given to his father was a contradiction. It seems to us that on the facts of that particular case the omission to mention on what particular part of the body of the victim the blow fell when giving the statement before the police had amounted to a contradiction because the failure to describe the particular part amounted to stating that none of the blows had fallen on the left temporal region and in the light of the facts of the particular case that would amount to a contradiction; but Nagindra Balas case (supra) does not lay down any principles different from the principles laid down in Tahsildar Singhs case (supra ). On the contrary as S. K. Das J. delivering the judgment on behalf of himself and A. K. Sarkar J. makes it clear they were merely applying the principles of Tahsildar Singhs case to the facts of the case before them and thus it cannot be said that Nagindra Balas case is a departure or in any manner modification of the principles laid down in Tahsildar Singhs case. It can be said to be an application of the principles laid down in Tahsildar Singhs case (supra ). ( 4 ) IN Sunder Singh v. State of Punjab A. I. R. 1962 S. C. 1217 in para 19 of the report Gajendragadkar J. (as he then was) was dealing with an omission from a statement before the police. Malook Singh was one of the persons who were injured in the course of the assault by Sunder Singh and his companion Lal Singh. It was mentioned by one of the prosecution witnesses that apart from attacking Malook Singh Sunder Singh and his companion Gurmukh Singh had attacked one Anup Singh on his knee and caused injury to Amar Kaur; and it was observed:-IT is however significant that none of the prosecution witnesses has referred to Gurmukh Singh attacking Anup Singh until they gave evidence in the Sessions Court An omission to refer to this part of Gurmukh Singhs conduct therefore assumes considerable significance. The detailed manner in which the incident has been described suggests that the omission to refer to Gurmukh Singhs assault on Anup Singh is in the nature of a contradiction and so it cannot be lightly brushed aside. The detailed manner in which the incident has been described suggests that the omission to refer to Gurmukh Singhs assault on Anup Singh is in the nature of a contradiction and so it cannot be lightly brushed aside. Thus this significant fact or the significant factor which struck Gajendragadkar J. and other learned Judges of the Supreme Court was that while mentioning in detail the manner in which the whole incident occurred they had omitted to mention in their respective statements before the police that Gurmukh Singh had attacked Anup Singh. Thus if a witness purports to make a statement setting out the details omission to mention a particular detail means that according to his version while giving the statement before the police that particular detail had not occurred at all and therefore by necessary implication when he starts giving that particular detail in his deposition before the Court there is a contradiction between his statement before the police and his deposition in Court and to that extent the decision in Sunder Singhs case is again an illustration where the principles laid down in Tahsildar Singhs case were applied by the Supreme Court. ( 5 ) WE may also point out that in a subsequent case viz. Dahyabhai v. State (S. C.) V. G. L. R. 911 the Supreme Court again applied the tests which were laid down in Tahsildar Singhs case; and at page 919 of the report Subba Rao J. (as he then was) delivering the judgment of the Supreme Court observed:-THIS Court in Tahsildar Singh v. The State of U. P. (1959) Supp. (2) S. C. R. 903 laid down the following test for ascertaining under what circumstances an alleged omission can be relied upon to contradict the positive evidence in court: xxx XXX XXX XXX broadly stated the position in the present case is that the witnesses in their statements before the police attributed a clear intention to the accused to commit murder but before the court they stated that the accused was insane and therefore he committed murder. In the circumstances it was necessarily implied in the previous statements of the witnesses before the police that the accused was not insane at the time he committed the murder. In this view the previous statements of the witnesses before the police can be used to contradict their version in the court. In the circumstances it was necessarily implied in the previous statements of the witnesses before the police that the accused was not insane at the time he committed the murder. In this view the previous statements of the witnesses before the police can be used to contradict their version in the court. Looking to the three decisions in Nagindra Balas case Sunder Singhs case and Dahyabhais case it is clear that the Supreme Court has merely applied that principles laid down in Tahsildar Singhs case to the facts of each of these three cases and they provide illustrations of the manner in which the principles laid down in Tahsildar Singhs case can be applied in actual practice. We must therefore proceed on the footing that the principles laid down in Tahsildar Singhs case have not been modified or qualified in any manner and those principles have to be applied in the form and the manner in which they were stated by the Supreme Court in that case. ( 6 ) WE may also point out that in some cases when omissions from the statement of a witness before the police are sought to be brought on the record of the case by way of contradictions a wrong impression may be created on the record of the case unless what the witness actually stated in that connection is also brought on the record. Sec. 162 Criminal Procedure Code permits the counsel for the prosecution to use the statement recorded by the police in re-examination for the purpose of explaining any matter referred to in the cross-examination of that witness. A serious defect and some injustice to the witness concerned are likely to be caused if merely an omission from the statement before the police is allowed to go on the record and what the witness actually stated before the Court is not brought on the record of the case. As pointed out by the Patna High Court in Yusuf Mia v. Emperor A. I. R. 1938 Patna 579 when an omission from a statement before the police is brought on the record in the cross-examination of a particular witness it becomes obligatory on the public prosecutor and if the public prosecutor fails to carry out that duty it becomes obligatory to the Court to put questions to the witness and to bring on record under the powers under sec. 162 Cr. 162 Cr. P. C. as to what the witness actually stated to the police. At page 585 of the report it has been observed:-IT is therefore the duty of the Public Prosecutor to see that the negative answer from an investigating officer in respect of the statement of a witness does not create a wrong impression of what the witness state therefore the police. Ho mast in these cases bring about other statements to explain the matter referred to in cross-examination. If the Public Prosecutor fails to do so it is the duty of the Court in fairness to the case and to the witness to bring out facts which will clear up the negative answer. This will be legitimate use of the police diary and one of the modes of taking aid from it in the trial. The negative answer from the police investigating officer which is referred to by the Patna High Court clearly refers to an omission from a particular witness which is sought to be proved by the cross-examination of the police officer; and when such negative answers have been obtained from the police officers it becomes the duty as has been pointed out by the Patna High Court of the Public Prosecutor and also of the Court to see that what the witness actually stated is brought on the record so that a clear picture of what the witness stated and what the witness did not state remain on the record so as to enable the trial Court and the appellate Court if any to decide how far the credibility of that particular witness is shaken because of omission amounting to contradiction from the previous statement made before the police. In the instant case it would have been desirable if for instance in Manoharsings case either the public prosecutor or the Presiding Judge at the stage of the trial had put questions to Manoharsing after the cross-examination was over to elicit what Manoharsing had actually stated before the police so far as the number of persons in the crowd was concerned. This would be required by a sense of fair-play so far as the witness in question was concerned. [ The rest of the judgment is not material for the reports. ] appeal of Accused No. 1 partially allowed; appeal of Accused No. 2 dismissed. .