1. The petitioners are the accused in. C. C. No. 2038 of 1957 on the file or the First Class Magistrate, Bangalore. They are accused of an offence under Section 302, I. P, C. The case is at the stage of preliminary enquiry. In the course of the cross-examination of p. w. 2, his statement under Section 162, Criminal P. C., was marked as Exhibit D-3. Exhibit D-3 was read out to the witness.
He was asked as to whether certain facts deposed to by Win in court are found in that statement. By this process the learned Advocate for the accused wanted to establish certain omission. During the re-examination, the Prosecutor wanted to explain the omissions in question with reference to a further statement made by the witness to the police during the investigation.
This was objected to by the learned Counsel for the petitioners. The basis of his objection was that he had contradicted the witness with reference to a statement made by him to the Police on 15-9-1957 at 7-30 a. m. whereas re-examination referred to the statement made by the same witness to the police at about 3-30 p. m. According to his contention the Police could not make use of this statement as it was a different statement from the one which he had used for the purpose of contradiction.
The learned Magistrate rejected this contention holding that the two statements can be construed as part of the same statement. The petitioners have come up in revision as against this order
2. At the very outset I would like to say that the course adopted by the learned counsel for the petitioners and permitted by the Court is wholly unwarranted by law. The accused could not have been permitted to mark the entire statement.
3. The two questions that arise for my consideration are: (1) Does an omission in a statement made and recorded under Section 162, Criminal P. C.. amount to a contradiction and could the same be used as such under the said section and (2) what is meant by 'statement' in Section 162, Criminal P. C., does it mean the entirety of facts stated by the witness to the investigating officer during the investigation or does each record constitute a separate statement?
4. It would be convenient to set out Sections 161 and 162, Criminal P. C. Section 161, Criminal P. C., is as follows :
'(1) Any police-officer making an investigation under this Chapter or any police-officer not below such rank as the State Government may. by general or special order, prescribe in this behalf acting on the requisition of such officer 'may examine orally' any person supposed to be acquainted with the facts and circumstances of the case.
(2) Such person shall be 'bound to answer all question 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.
(3) The notice-officer 'may reduce into witing 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.'
5. Section 162, Criminal P. C., is 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, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872) and when any part of 'such statement' is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.'
At this stage I may also conveniently quote Section 145 of, the Indian. Evidence Act. It is as follows:
'A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; 'but, if it is intended to contradict him by the writing', his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.'
(Underlining (here in ' ') in all these sections are mine).
6. From the foregoing it is clear that the Police Officer is expected to examine the witness Bind the witness is bound to answer all questions which do not incriminate him. No doubt the witness can narrate the facts known to him. The police officer may reduce the answers given or facts stated or parts thereof into writing.
'Statement' in Section 162, Criminal P. C.. refers to what the witness had stated and not to what he had omitted to state. Before one could contradict a witness with a previous statement, there must be a statement which had been reduced into writing. In the words of Justice Burn in Ponnusami Chetty v. Emperor, reported in : AIR1933Mad372
'Whether it is considered as a question of logic or of language, 'omission' and 'contradiction' can never be identical. If a proposition is stated, any contradictory proposition must be a statement of some kind, whether positive or negative. To 'contradict' means to 'speak against' or in one word to 'gainsay'. It is absurd to say that you can contradict by keeping silence.
Silence may be full of significance, but it is not 'diction' and therefore it cannot be 'contradiction'. It is clear therefore that a statement under Section 162, Criminal P. C., cannot be used during an enquiry or trial in order to show that a witness is making statements in the witness-box which he did not make to the police.'
According to the same learned Judge,
'The same conclusion follows from a consideration of Section 145, Evidence Act. If it is intended to contradict the witness by the writing, his attention must be called to those parts of the writing which are to be used to contradict him. It would be, in my opinion, sheer misuse of words to sav that you are contradicting a witness by the writing, when what you really want to do is to contradict him by pointing out omissions from the writing'.
He quotes with approval the observations of the learned Sessions Judge in that case 'a witness cannot be confronted with the unwritten record of an unmade statement.'
7. It is true that there Is conflict of judicial opinion on this question. Decided cases can be broadly classified under three heads. A few cases have taken the view that omissions are contradictions, Vide Iltaf Khan v. Emperor, AIR. 1926 Pat 362 (B). Yet other cases have taken the view that usually an omission is not a contradiction but the omission to state an important fact is a contradiction or at any rate it is a contradiction in substance, see Yusuf Mia v. Emperor, AIR 1938 Pet 579 (C) and Emperor v. Ajit Kumar Ghosh : AIR1945Cal159 .
Another line of cases have taken the view that an omission can never he a contradiction, : AIR1933Mad372 and Aseruddin v. Emperor : AIR1927Cal257 . In my opinion the true view of the law is as enunciated by the Division Bench of the Allahabad High Court in the case of Ram Ball v. State, reported in : AIR1952All289 (F). An omission is not a contradiction unless what is actually said contradicts what is omitted to be said.
The test to find out whether an omission is a contradiction or not is to see whether one can point to any sentence or assertion which is irreconcilable with the deposition in Court. It would be quite meaningless to say that the entire statement under Section 182, Criminal P. C., contradicts the deposition. Therefore one cannot point to the entire statement as being irreconcilable with the deposition.
8. From the foregoing it is clear that the omission in the instant case cannot be a contradiction as contemplated in Section 162, Criminal P. C.
9. Arguments have been pressed before Courts that to hold that omissions are not contradictions under Section 102, Criminal P. C., is to open the gates of fraud. It would encourage the designing investigating officers to so record the statements as to deprive the accused of the benefits of the said section and it would Embolden the untruthful witnesses to develop their story with impunity. I see no room for this criticism. What Section 162, Criminal P. C., prohibits is the use of any statement made under it and not the omission thereof.
A statement under Section 162, Criminal P. C., is a previous statement. There is nothing in that section or for that matter in any other law which prohibits the proof of an omission in a previous statement made by the witness in question with a view to improbabilise his version. This can be done either by the admissions secured from the witness concerned or of the investigating officer or by adducing evidence aliunde.
In the present case it would be elicited from P. W. 2 as to whether the particular fact deposed to by him in Court, had been stated to the police during the investigation. If he admits that he did not, the defence can relive on the admission. The same result can be achieved by eliciting the required information from the investigating officer, or by adducing evidence to establish that fact.
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. 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 re' cording the facts stated have only relative importance. They must be judged in the circumstances of the case.
In my judgment 'statement' in Section 163 Cr. P. C., is the entirety of the fads stated by the witness to a police officer during the investigation. All these facts whenever and wherever stated go to constitute his 'statement'. Prom this it follows that facts stated by P. W. 2 in the morning as well the facts stated by him in the evening to the investigating officer are both parts of the same statement.
The prosecution is within its limits in making use of the later part in explaining the omission in the earlier part. But the fact that the same has been omitted in the earlier part of the statement will not be lost sight of by the Judge.
11. In the result this revision petition fails and the same is dismissed.
12. Petition dismissed.