JUDGMENT : P.K. Misra, J. - The accused person has filed this revision against the order of the trial Court rejecting the application for recalling P.W. 4 for further cross-examination. 2. The petitioner is facing trial on the allegations that he has committed offences under Sees. 354, 376/511, Indian Penal Code. After examination and cross-examination of P.W. 4 were over, at a subsequent stage while other prosecution witnesses were being examined, the petitioner filed an application before the trial Court for recalling P.W: 4 for further cross- examination for the avowed purpose of confronting the witness in connection with certain omissions in the statement made before the Investigating Officer. The said application was rejected by the trial Court on 8.12.1998. The petitioner filed Criminal Revision No. 590 of 1998 in this Court which was disposed of on 29.1.1999. It was observed that it would be open to the petitioner to file a fresh application before the trial Court giving the details of the alleged omissions or contradictions sought to be confronted to P.W. 4. Thereafter, the petitioner filed fresh application on 16.2.1999. The said application having been rejected on 23.2.1999, the present Criminal Revision has been filed. 3. Before the case was investigated into by the C.B.I., case had been registered in Cantonment Police Station and some investigation had been made. In the petition for recall, it was indicated by the petitioner that the witness had omitted to make certain statements before the Investigating Officer while the case was under investigation by Cantonment P.S. Such application has been rejected by the trial Court on the ground that two statements of the witness recorded by Investigating Officer of Cantonment P.S. as well as by the Investigating Officer of C.B.I, on different dates constituted part of the same previous statement and the accused cannot be permitted to confront these statements on the ground that the facts stated to C.B.I, were not stated to the State police. For the aforesaid purpose, the trial Court relied upon the decision reported in AIR 1958 Mysore 130 Numinaires and Ors. v. State of Mysore) as well as the decision reported in Judhistir Das Vs. Jhari Das and Another, . 4. In the decision reported in Judhistir Das Vs.
For the aforesaid purpose, the trial Court relied upon the decision reported in AIR 1958 Mysore 130 Numinaires and Ors. v. State of Mysore) as well as the decision reported in Judhistir Das Vs. Jhari Das and Another, . 4. In the decision reported in Judhistir Das Vs. Jhari Das and Another the dispute related to the question as to whether a witness could be cross-examined with reference to his previous statement made during enquiry u/s 202, Cr.P.C. and it was answered in the affirmative. The question now raised was not at all considered in the said decision. 5. In the decision reported in AIR 1958 KARN 138, the witness had been cross-examined by the accused with reference to omission in the statement made by the witness before the police while such witness was examined at 7.30 A.M. on 15.9.1957. The prosecution re-examined the witness and elicited the answer that such witness has stated so during his subsequent examination by the police on the very same day at about 3.30 P.M. Such a course was objected by the counsel for the accused- petitioner on the basis that the witness had been contradicted with reference to a statement made on earlier occasion and the prosecution could not make use of the subsequent statement of the witness which was different statement from the one which had been used for the purpose of contradiction. While repudiating such contention, it was observed : "9...... If on the other hand all that the defence can establish is that he did not state it in his statement recorded in the morning then the defence must be satisfied with establishing that fact. It is open to the prosecution to prove that a further statement had been recorded in the afternoon. If the defence does not establish that the fact in question had not been mentioned in that statement also it is open to the Court to draw appropriate inferences. It must be noted that all the while we are in the region of proof and not the evidentiary value of the facts proved. An omission has its own significance. Equally an omission to state an important fact at the earliest possible opportunity will be given its due weight under the circumstances of the case. 10.
It must be noted that all the while we are in the region of proof and not the evidentiary value of the facts proved. An omission has its own significance. Equally an omission to state an important fact at the earliest possible opportunity will be given its due weight under the circumstances of the case. 10. This takes me to the next question as to what is the meaning of the word 'statement' in Section 162, Cr.P.C. Statement means what is stated. Section 162, Cr.P.C. speaks of 'statement made by any person to a police officer in the course of an investigation'under this chapter'. In other words it means all that is stated to a police officer in the course of the investigation. It is possible and in my experience it is common for the investigating officers to interrogate the witnesses more than once. As things unfold themselves further elucidation becomes necessary. It is not a set examination of a witness on facts collected and marshalled earlier. The investigating officer is still at the stage of sifting materials and following clues. It may be that the entire statement is obtained at one stretch. It is equally possible that the relevancy of a particular fact may become clear after the witness had been questioned earlier on other points. Again it must be noted that the investigating officer is not required to make a verbatim record of the statement made. He merely records what he considers as important. What he considers as unimportant at one stage of the investigation may assume importance at a later stage. Consequently it may become necessary for him to question again the witness. The point of time as to when the statement is made or the method or manner of recording the facts tasted have only relative importance. They must be judged in the circumstances of the case. In my judgment 'statement' in Section 162, Cr.P.C, in the entirety of the facts stated by the witness to a police officer during the investigation. All these facts whenever and wherever stated go to constitute his 'statement'.
They must be judged in the circumstances of the case. In my judgment 'statement' in Section 162, Cr.P.C, in the entirety of the facts stated by the witness to a police officer during the investigation. All these facts whenever and wherever stated go to constitute his 'statement'. From this it follows that the facts stated by P.W. 2 in the morning as well as the facts stated by him in the evening to the investigating officer are both parts of the same statement." The trial Court has relied upon the underlined portion of the observation from the aforesaid extract to come to a conclusion that the statement made by the witness before the various investigating officers at different times, being one previous statement, the witness, c&ald not be cross- examined with reference to any alleged omission in the statement of the witness while he had been examined by the police, as such witness had so stated on subsequent occasion. The aforesaid observation relied upon by the counsel for the C.B.I, torn from its context has been utilised by the trial Court. However, a reading of the judgment of Justice K.S.Hegde (as his Lordship then was) does not go to the extent of laying down the proposition that the accused cannot be permitted to prove an omission amounting to contradiction in the statement of the witness before police on the ground that the witness had made such a statement at a later stage of investigation. Even though the statement of the witness is made at different times before the investigating officer or before different investigating officers, the matter has to be decided in the light of the importance of the alleged omission. It cannot be laid down in a general way that if a statement has been made by a witness before some investigating officer or a different investigating officer at a different stage, the witness cannot be cross-examined by the defence with a view to elicit the alleged commission or contradiction in the earlier statement. 6. The learned counsel for the C.B.I, has also relied upon the Division Bench decision of the Kerala High Court reported in Asan Tharayil Baby Vs. State of Kerala, in support of his contention. The said decision was also in the context of re-examination of a prosecution witness. The witness while being examined earlier by one investigating officer had stated about the dying declaration.
State of Kerala, in support of his contention. The said decision was also in the context of re-examination of a prosecution witness. The witness while being examined earlier by one investigating officer had stated about the dying declaration. Subsequently when such witness was further examined by another investigating officer, he had not stated about the dying declaration and the defence had elicited about such omission to state before the latter investigating officer. Thereafter, during re-examination by the prosecution, the witness had stated that he had disclosed about the dying declaration before the earlier investigating officer. Legality of such a course was questioned by the accused-appellant before the High Court and the plea was negatived by the High Court. In course of discussion, it was observed : "13.......It is common knowledge that quite often, particularly, in serious and complicated cases, more than one police officer investigate into the same crime at differet stages and each of these officers examines the witness already examined by others. Depending upon the facts and circumstances of the case and according to the necessity, a witness may be examined during the course of investigation more than once at different times, stages and different dates by the same Investigating Officer or different Investigating Officers. This is because, a police officer at the commencement of the investigation may not know how the case would develop and how even trivial things would develop into important clues in the case. After the examination of a witness, a material fact might have come to light during investigation and this will necessitate the examination of the witness over gain. So also at the time when a witness was examined first, the Investigating Officer might have left out some particulars as unimportant, bui in the course of investigation as the case develops, those might assume importance which would compel the Investigating Officer to further examine or re-examine the same witness. The investigating officer might have recorded the entire statement of a witness at a stretch, but in spite of all that, the necessity of examining the witness over again might arise as the relevancy of a particular1 fact might have become clear to the Investigating Officer only after the first examination of the witness.
The investigating officer might have recorded the entire statement of a witness at a stretch, but in spite of all that, the necessity of examining the witness over again might arise as the relevancy of a particular1 fact might have become clear to the Investigating Officer only after the first examination of the witness. The weapon used for the commission of the offence might not have been recovered at the time when the witness was examined and therefore not available to be shown to the witness during his examination. The recovery of the weapon subsequent to the examination of the witness would necessitate the questioning of the witness a second time with reference to the weapon recovered. On such occasion, it is only for the limited purpose of showing the weapon to the witness and questioning him with reference to the weapon that he is examined and therefore it is not necessary that the Investigating Officer at that time should record over again all what he stated to him about the incident on the former occasion. The word 'statement' u/s 161, Cr.P.C, includes both oral and written statement and it will also include signs and gestures. On going through the various provisions in Chapter XII and construing the word 'statement' appearing in Sections 161 and 162, Cr.P.C, in the context in which the word appears it is clear that the word 'statement' in Sub-section (3) of Section 161 and Section 162, Cr.P.C, means all that is stated by a witness be a police officer or officers during the course of investigation. Thus, a statement of a witness recorded u/s 161(3), Cr.P.C, whatever be their number and whatever be the date or dates on which the statement was recorded, constitutes the statement of that particular witness u/s 162, Cr.P.C. and such statement can be used under the proviso to Section 162 subject to the limitations prescribed thereunder. In other words, the word 'statement' appearing in Section 161(3) and Section 162, Cr.P.C. constitutes the entirety of facts stated by a witness when he was examined on different dates by the same Investigating Officer or different Investigating Officers.
In other words, the word 'statement' appearing in Section 161(3) and Section 162, Cr.P.C. constitutes the entirety of facts stated by a witness when he was examined on different dates by the same Investigating Officer or different Investigating Officers. Therefore the expression 'statement or any part of such statement......' appearing in Section 162, Cr.P.C is not confined to a single statement given by a witness to a particular officer but takes in all the statements given by a witness at different stages or on different dates to different Investigating Officers or the same Investigating Officer." From the aforesaid decision, however, it cannot be laid down that the defence did not have the right to cross-examine a prosecution witness with reference to his omission to state a particular aspect before a particular investigating officer. On the other hand, the aforesaid decision emphasizes that even if the defence elicits answer relating to such alleged omission, it is open to the prosecution to re-examine the witness and to establish that, in fact, such witness had made such a statement before the investigating officer on an earlier occasion or on a subsequent occasion. 7. There is no dispute that P.W. 4 was initially examined by the Officer-in-charge of Cantonment Police Station and thereafter the investigation of the case was handed over to the C.B.I, pursuant to direction of the High Court and the witness was again examined by the Investigating Officer of the C.B.I. Whenever a witness is examined by the same investigating authority on different dates or by different investigating authorities on different, dates, the statement made by such witness before such investigating agency constitutes a previous statement. The view of the trial Court that such statements constitute one previous statement cannot be accepted as such in the broad manner in which it has been so indicated by the trial Court. An illustration would make this clear. Supposing, in a murder case 'X' is initially examined by the Investigating Officer and he does not state anything about the alleged occurrence, but subsequently at a later stage of the investigation, the said witness makes statement implicating the accused person, in such a case, can it be said that the omission to implicate the accused when the witness was first examined cannot be considered to be a material omission merely because subsequently the very same witness has implicated the accused person ?
Such contingency may arise when there are different investigating agencies or before the same investigating agency. The reasons for such omission may be multifarious. It may be that the particular Investigating Officer might not have put a particular question to the witness. It may be that the witness might not have thought the particular evidence to be of any importance and might not have voluntarily stated so before the police. It may be that the particular statement might not have appeared as important to the Investigating Officer and as such the Investigating Officer himself might have omitted to record such statement even though stated by the witness. Moreover, it cannot be said that merely because the witness has stated so before the police on subsequent occasion, his own omission to state so earlier cannot be confronted. Thus, it is evident that the.trial Court has rejected the application on a wrong footing. 8. The learned counsel for the C.B.I, further submitted that the alleged omissions pointed out by the petitioner in his petition before the trial Court are not such material omissions so as to come within the meaning of the expression "contradiction" and as such, need not be confronted to the witless. He has placed reli'nce upon the decision of the Supreme Court, reported in AIR 1959 Supreme Court 1012 (Tahasildar Singh and Anr. v. State of U.P.) to emphasize the meaning of the expression "contradiction" in the context of an omission. It is well known that the ratio of this decision has received legislative approval in the 1974 Act, as evident from the Explanation to. Section 162, Cr.P.C. which has been added in the 1974 Act. In this context, he has emphatically pointed out that P.W. 4 is merely a post-occurrence witness and the alleged omissions indicated in the petition filed before the trial Court relate to some subsequent events not directly concerning the accused, but certain other persons. He has, therefore, submitted that even assuming that the petitioner had the right to cross-examine the witness with reference to the alleged omissions in the statement made before the investigating officer on earlier occasion, such alleged omissions being irrelevant and insignificant, there is no real necessity to recall the witness for further cross-examination, as such further examination is likely to delay the trial.
It is evident that after examination of P.W.4, the trial Court has also examined other prosecution witnesses and as such, the trial Court would be in a better position to appreciate such contention relating to relevance and significance of such alleged omissions. Since the trial Court has not adverted its mind on this aspect, and has rejected the petition on a ground which is now found to be untenable, it would be more appropriate to require the trial Court to consider the matter afresh. Accordingly, it is directed that the question of further examination of P.W. 4 may be re- considered by the trial Court. It is made clear that the trial Court is free to consider the matter afresh in accordance with law without being influenced by any observations made in the present order. It is further made clear that the trial Court need not delay the examination of other prosecution witnesses merely because the application for re-examination of P.W. 4 is to be re-considered. 9. The Criminal Revision is accordingly disposed of. Copy of this order be handed over to learned counsel for the prosecution for immediate production before the trial Court.