P.S. Safeer, J.
1. This appeal has beer preferred against the judgment made by Shri O. P. Singla. Special Judge, Delhi on the 31st of May, 1972, in terms where the appellant was convicted under Section 409 of the Indian Penal Code and was held guilty of criminal misconduct within the meaning of Section 5 (1) (c) and (d) read with Section 5 (2) of the Prevention of Corruption Act. hereinafter called 'the Act.' In respect of his conviction under Section 409 of the Indian Penal Code the appellant was sentenced to one year's rigorous imprisonment and a fine of Rupee 500/- in default of payment whereof he was to undergo three months' rigorous imprisonment. Identical sentence and fine were imposed in respect of his conviction under Section 5 (2) of the Act. The sentences were to run concurrently.
2. The prosecution alleged that at the time of the commission of the offences the appellant was working as second-in-command (2/IC) in the 39th Battalion of the Central Reserve Police at Silchar as between the 6th of November, 1968 and the 5th of August, 1969. While holding that post he was alleged to have told Shri G.B. Lama, P.W. 19 that six parachutes of best quality be requisitioned from the companies and their dispatch should not be shown in any vouchers PW 19 was alleged to have sent messages to companies B and C requiring the dispatch of six parachutes. Company (B) was alleged to have sent six parachutes through Murari Lal constable who was examined as P.W. 6 at the trial. He landed at Aijle in a helicopter with the six parachutes on 13-1-1969 wherefrom he went to Dhaleshwari where he met Shri G.D. Lama, who directed him to take the six parachutes brought from company 'B' to the headquarters at Silchar.
The parachutes were then delivered at Silchar on 25-1-1969 by Murari Lal to Jamadar Rattan Singh who was told by him that the concerned parachutes had been brought for the appellant. It was further alleged that the appellant saw the parachutes and it was under his directions that Tirlok Singh Jamadar got the six parachutes packed in three bundles and the packing was done by Nand Lal and Chote Lal. After the parachutes had been packed they were alleged to have been delivered by Ram Pratap P W 10 to Mahander Singh. P, W. 18 who had come to collect them at about 7.00 P. M., on the 31st of January, 1969 and who while going on long leave took them in the three bundles which were latex on delivered to the wife of the appellant at Delhi.
3. After appreciating the evidence of the various witnesses examined at the trial the Special Judge convicted the appellant as noticed above.
Appearing for the appellant Mr. D.R. Sethi, has raised the following contentions:
(a) There is no evidence that the six parachutes reached the Battalion Headquarters at Silchar;
(b) there is no evidence that the vehicle No. MPF-1306 took Mahander Singh, P.W. 13, along-with the three bundles containing the parachutes to the railway station Silchar;
(c) the prosecution has not produced stock register to show that the six parachutes were part of Government property;
(d) the prosecution has failed to prove that the concerned six parachute were delivered to the wife of the appellant in Delhi: and
(e) that the depositions of P. Ws, 5, 7, 8 and 12 obtained by cross examining them within the proviso in Section 162 of the Criminal Procedure Code are not legal evidence and cannot be relied upon.
The contentions noticed above have been controverter by Shri R. L. Mehta on behalf of the State.
The first four contentions have to be dealt with at one stretch for the reason that they are referable to the evidence adduced at the trial and the counsel appearing before me have supported themselves by pointing out particular statements of various witnesses. The 5th contention calls for a consideration of the scope of the proviso contained in Section 162 of the Criminal Procedure Code hereafter called 'the Code' and it has to be determined as to which part of the statements of P. Ws. 5, 7, 8 and 12 fall within the proviso and to what extent the portions covered by the proviso are to be relied upon.
4. An examination of the relevant evidence will provide the basis for determining whether six parachutes were sent by Company 'B' which after delivery at the Battalion Headquarters at Silchar were packed in gunny bags and then sent through P.W. Mahander Singh to the wife of the appellant. The events in their sequence started with the requisitioning of the six parachutes from companies 'B' and 'C' A reference to P.W. 2/A shows that the message sent by P.W. 19, was:
dispatch six parachutes of best quality. It should not be shown in voucher. Send positively by Monday. Copter without fail.
Shri M.D. Singh the then Company Commander attached with Company 'B' who received the message when examined as P.W. 2, stated:
I received QST message Ex. P.W. 2/A from Shri Lama asking for the dispatch of six parachutes. This message was received by me. Ex. P.W. 2/A bears my endorsement and initials at points A and B. Again I received a regular message from Shri Lama which is Ex. P.W. 2/B and it was received by me on 10-1-1969. It bears my endorsement, and initial at points B-l, B-2 and B-3. The endorsement in red on Ex. P.W. 2/B at point B-4 is in the handwriting of M. C. Harnam Singh. I recognised his handwriting as I have seen him signing and writing very often. I sent the parachutes under letter copy P.W. 2/C and handed over the parachutes to constable Murari Lai whose signatures I obtained at point A thereon. This letter also bears my endorsement and signatures at point B and D (recorded subject to objection).
No objection, to the admissibility of the statement quoted above, has been raised before me. I have perused these documents and find that the endorsements described in the deposition noticed above are there. Mr. M.D. Singh was the person who received the messages and hi' statement that he sent the parachutes through constable Murari Lai remains unshaken. It is corroborated by the statement made by P.W. 19 Shri G.B. Lama. It were the messages sent by him which obtained compliance from P W. 2. P.W. 19, with reference to the relevant events, stated:
The accused had asked me that 1 should call for six parachutes from each post from Mamit and Darlong somehow. C Company and B Company were posted there respectively. In accordance ' with the orders of the accused, I sent Q.S.T. messages Exts. P.W. I/A and P. W. 2/A. As far as I recall the reply received was that all these parachutes had been accounted for Ex. P.W. 1/B was the letter received by me. I sent the second message Ex. P.W. 1/C and Ex. P.W. 2/B to the respective companies for sending the parachutes. I received another message from C company which is Ex. P.W. l/D. One of the two companies had sent the parachutes while the other refused. Constable Murari Lai brought six parachutes.' P.W. 19. as is clear from his deposition, admitted that he had sent the messages and affirmed that it was Murari Lai who brought the six parachutes.
Proceeding further P.W. 19, stated,
I instructed constable Murari Lai that the parachutes brought by him to Dhaleshwari were not meant for me but were required by second-in-command Major Rampal who was officiating as Commandant of the C.R.P. at Silchar for Battalion Headquarters.
When cross-examined the witness confirmed that the constable who had brought parachutes was Murari Lai who did not belong to his company. The evidence of P.W. 19 finds support from the deposition of P.W. 3 who stated:
He admitted that he was posted in company B in January, 1969 and then stated I have seen entry B-4 on Ex. P.W. 2/B which is in my hand. Six parachutes had been sent at Aijal through constable Murari Lai to Mr. Lama under letter carbon copy Ex. P.W. 2/C.
I have perused Ex. P.W. 2/B and 'the writing in red ink therein encircled by a red line, may be reproduced1:
6 Parachutes sent with constable Murari Lal to B Company Commander,
There are initials of P.W. 3 in red ink on the writing reproduced above. The statements made in Court by P. Ws. 2. 3 and 19 along with the documents referred to therein, establish that six parachutes were sent through Murari Lal constable by Shri M.D. Singh the then company commander of company B to P.W. 19 Shri Lama.
5. Murari Lal constable appeared as P.W. 6 at the trial and his statement deserves to be reproduced in detail:
I was handed over 6 parachutes by Shri M.D. Singh to be given to Shri Lama. A Company Commander on 13-1-1969 when I was proceeding on long leave. I landed Aijle in a helicopter at about 4.00 p. m. with the six parachutes. I reported to Hawaldar Major Met Ram and inquired him about Mr. Lama. He told me that Mr. Lama is at Dhaleshwari. On the following day I went to Dhaleshwari I contacted Shri Lama and told him that the six parachutes were brought by me from B Company to be given to him. Mr. Lama asked me about the parachutes and I told him that they have been left by me at A Company at Aiile. He directed me to deliver the said parachutes to the Adjutant Jamadar at Battalion Head quarter Silchar in case I did not know the Deputy Commandant of the Battalion. Shri T. C. Rampal. I returned from Dhaleshwari to Aijle, and proceeded to Silchar on or about 23rd of January, 1969. I reached Silchar at about 2.00 p. m. on 23-1-1969. I went to the office of the Bn. M. Qr. and reported to Adjutant Jamadar Rattan Singh and told him that I had brought six parachutes for the accused. I left the parachutes in the office and left. Signatures marked Z on Ex. P.W. 2/C are mine. I had signed it in token of receipt of six parachutes to be handed over to Shri Lama. I had carried the original letter for Mr. Lama along with the parachutes and I delivered the said letter at Dhaleshwari. Ex. P.W. 2/C is the carbon copy of that letter which I delivered. On return from leave after 3-4 months I joined A company and met Mr. Lama at Dhaleshwari. He questioned me as to whom I had delivered the parachutes. I told him that I did not know the name of the person to whom I delivered saying, there were 2/3 persons sitting in the room and that most probably I delivered to Amar Singh. Again said I delivered it to Adjutant Jamadar then posted there who most probably was Rattan Singh. I gave writing Ex. P. W, 6/A to Mr. Lama under his directions wherein I wrongly mentioned the name of Amar Singh as the person to whom 1 had delivered the parachutes. In fact I did not then know the name of the person to whom I had delivered the parachutes and since Amar Singh was the Adjutant Jamadar I mentioned his name in this letter but in fact I ascertained later and found that Amar Singh had proceeded on leave and that instead Rattan Singh was working in his place and I confirmed that I had handed over the parachutes to Rattan Singh.
The witness was subjected to cross-examination and an effort was made to establish that since he was proceeding on leave the things which he was to carry were to be mentioned in the movement order. The witness, stated:
I did not get the movement order when I proceeded on leave but another person who accompanied me was given the movement order.
No effort was made to obtain from Murari Lal the name of his companion who according to him was given the movement order. When questioned further the witness replied:
I had reported to Met Ram Company Hawaldar Major at Aijle that I have brought six parachutes with me for Mr, Lama. But I did not tell the Commander of the convoy that I was carrying six parachutes.
He denied the suggestion that he was stating that he had brought the parachutes for the accused because Shri Lama and Shri Ghafoor had persuaded him to make the statement.
6. The evidence comprised in the statement of Murari Lal has to be appreciated in the light of the depositions of P. Ws. 2. 3, 6 and 19. While urging his contentions Mr. D.R. Sethi emphasised that there was no evidence that the parachutes were Government property and that they ever reached the Battalion Headquarters. He also drew my attention to an application moved in this Court in consequence whereof Shri A. L. Yadav, Commandant of the 39th Battalion. Central Reserve Police, Silchar Assam was examined on August 22, 1973. Mr. Sethi urged that the prosecution had kept back the relevant records. In that respect it has to be noticed that the dispatch of the fix parachutes is mentioned in the register Ex. P.W. 2/D. On page 12 of that register there are two entries. In column 8 the writing, is:
Parachutes 6/6 pack para.
In columns 3 and 4 as across the date 13-1-1969 the writing is:
Sent to E Coy Comdr. Shri Lama C/Aijel through Const. Murari Lal No. 46174 by Copter date 13-1-1969.
Apart from noticing the entries I have noticed that as across the date 2-1-1969 the number of parachutes mentioned is 123/124. After showing the dispatch of six parachutes on 13-1-1969 the balance entry under that date mentions '119/118'. The register was exhibited during the examination of P.W. 2 and these entries appear on page 12. The English record pertaining to the deposition of P.W. 2 contains:
Ex. P.W. 1/D is the packing material register. At page 12 of this register there is endorsement marked X and Y in the handwriting of my Quarter Master Harnam Singh whose handwriting I identify. I have been seeing him writing and can identify his writing. At point Z are signatures of Harnam Singh against said entry.
A reference to the Urdu statement of P.W. 2 shows that the concerned register was exhibited as P.W. 2/D. Harnam Singh appearing as P.W. 3 supported P.W. 2 and on page 12 of Ex. P.W. 2/D in column 22 the initials of Harnam Singh to which he made reference in the course of his deposition are there. With that evidence on the record I am unable to accept that the prosecution kept back documentary evidence pertaining to the dispatch of six parachutes through Murari Lal.
The messages sent by P.W. 19 contained the direction that the best quality parachutes be sent but without voucher. It is contended on behalf of the appellant that there is no documentary proof of the receipt of the concerned six parachutes at the Battalion Headquarters at Silchar, It is submitted that according to the Rules contained in the Central Reserve Police Manual the receipt of the parachutes at Silchar should have been recorded. The Counsel appearing for the State has referred to Section 12 in that Manual and has placed reliance on paragraph 187 which provides that the issuing and receiving of all kinds of stores will take place against vouchers which will be numbered and entries regarding which will be made in the stock register. He submits that as the parachutes had been sent without vouchers no entries in respect thereof could have been made in the stock register at, Silchar. The argument remains unrepelled. Even otherwise it is doubtful that the Rules contained in the Central Reserve Police Force Manual had any applicability to the circumstances where six parachutes had been requisitioned to be sent not for the purpose of Central Reserve Police Force. The stock registers were to contain entries pertaining to the stock received for the Central Reserve Police Force. The provisions in the aforementioned Manual could not apply to a situation where six parachutes had been requisitioned with the direction that no voucher should be prepared in respect thereof. It was never indicated in any of the messages requisitioning the parachutes that they were meant for the Central Reserve Police Force.
7. The evidence of P.W. 10 is of great significance. P.W. 9 had stated that Constable Asadu Prasad who was the Orderly attached with the appellant had brought six parachutes to the Quarter Master Stores in the battalion vehicle at about noon on a certain day in January 1969. Affirming the testimony of P.W. 9. P.W. 10 stated that Asadu Prasad Constable had brought six parachutes from the Bn. H. Qr. to the Q. M. Store in the Battalion Vehicle, He stated:
I saw the parachutes brought by the vehicle and were of white colour.
Proceeding further he stated:
The parachutes were packed in my presence and were resent to Bn. H. Qr. in the battalion vehicle. They were packed in three bundles by constable Nand Lal and Chhotey Lal.
The same witness towards the end of his examination-in-chief, deposed:
On 31-1-69 at about 7.00 p.m. Mahander Singh came to the Q. M. Store in the Battalion vehicle which brought us food and demanded the bundles. He took the bundles and left in the Battalion vehicle.
When cross-examined the witness, stated:
Each of the parachutes was packed in a para-pack of green colour when received for the first time in the stores. They were six in number.
It has been noticed that six parachutes were sent by P. W, 2 the Commander of Company 'B' and entries to that effect were made in Ex. P.W. 2/D. Murari Lal who carried the parachutes to Silchar proved that the parachutes had been brought by him. The evidence given by P.W. 10 established that originally each one of the parachutes which were six in number was packed in a para-pack of green colour and that the same were repacked in his presence and on the 31st of January, 1969. at about 7.00 p. m. Mahander Singh took away the bundles containing the parachutes when he left in a battalion vehicle, P.W. 7 Nand Lal stated that he had packed three bundles along with constable Chhotey Lal at the Quarter Master Store, Chhotey Lal examined as P.W. 8 affirmed that he had seen Jai Singh on an evening in the last week of January, 1969, who had brought in his vehicle another person who was proceeding on leave. Statements made by P. Ws. 7 and 3 when cross-examined by the Public Prosecutor will be discussed later. It is, however, clear that they were the persons mentioned by P.W. 10 as those who had packed the parachutes. Jai Singh Pawar was examined as P.W. 17. He stated that on the 31st of January, 1969 in the evening he was ordered by Jamadar Bhaskar to take Mahander Singh to the railway station and that accordingly he took Mahander Singh who unloaded three bundles, bedding and other goods at the railway station from his vehicle. The statement of the witness has been criticised by the learned Counsel appearing for the appellant who has stated that the register concerned with plying of the vehicle does not contain the entry showing that P.W. 17 went to the railway station on the 31st of January. 1969 which place did not fall on his way. As against that Mr. Mehta appearing for the State submits that in the act of misappropriating the parachutes the accused was to observe caution that no entry be made showing the movement of the vehicle from the Quarter Master Stores to the railway station.
8. It is clear that P.W. 17 was not asked to carry Mahander Singh for any official purpose. Entries could have been made regarding the plying of the vehicle only when it moved for the performance of duties. Another aspect is that the assertion that Mahander Singh was in fact taken to the railway station in the concerned vehicle was made as a witness in Court on oath by a person who drove the vehicle. In cross-examination P.W. 17, stated:
It is incorrect to suggest that Mahander Singh did not go with me in the truck to the railway station.
9. P.W. 19 Shri G.B. Lama had been maintaining his store diary, which he proved as Ex. P.W. 19/D. The entry made therein on the 4th of January, 1969 is to the effect that P.W. 19 received Deputy Commandant Shri Rampal at the Helipad on that day. The entry made under the date 5-1-1969 is to the effect that accompanied by the Deputy Commandant, P.W. 19 went to receive the Governor at the Helipad. If the entries in the diary Ex. P.W. 19/B are kept in view then it stands clarified that the appellant was at Aijle on the dates when messages were sent by P.W. 19 for obtaining the six parachutes. In his answer to question No. 2 while making the statement under Section 342 of the Code the accused-appellant did not deny that he was in Aijle in January 1969 in connection with the visit of Governor of Assam. The message Ex. P.W. 2/A to the effect that six parachutes be sent by Monday was sent from Aijel by P.W. 19 on the 6th of January, 1969.
The prosecution evidence proves that P.W. 19 under the direction of the appellant sent the messages for obtaining the six parachutes which were sent by P.W. 2 through P.W. 6 Murari Lal who brought them to Silchar. P.W. 5 Rattan Singh's deposition may also be noticed:
On 25-1-69 constable Murari (Lal) from B Company reported at Bn. Hd. Qr. He was then proceeding on leave. He told me that Shri Lama Dy. S.P. had sent six parachutes for the accused through him. He did not have any voucher for it. I reported the matter to the accused why the parachutes were lying in the verandah. The accused after seeing the said parachutes in the verandah sent for the Quarter Master Jamadar Tirlok Singh who might have taken these away. I am not sware.
The statement proved that parachutes brought by Murari Lal were shown to the appellant who then sent for Jamadar Tirlok Singh. P.W. 9 Tirlok Singh's evidence has been noticed earlier. Mahander Singh P.W. 13 who was driven to the railway station with the three bundles containing the parachutes by P.W. 17 Jai Singh Pawar, had taken the bundles in the presence of P.W. 10 Ram Pratap from the Quarter Master Stores. His statement was that on meeting Ram Pratap (P. W. 10) he had inquired as to where the goods of Shri Rampal were. According to him. Ram Pratap, loaded the goods in the vehicle. He did not know what the bundles contained but he affirmed that the vehicle took him to the railway station from where along with the three bundles he came to Delhi. Regarding the delivery of the bundles to the wife of the appellant, he deposed:
I came to New Delhi and went to the house of the accused and delivered the three bundles to his wife. I also conveyed the message given by Shri Rampal and recorded by me at point 3 of my diary to the wife of the accused. I reached Delhi on 4-2-1969 and delivered the bundles to the wife of the accused on the same day. I also brought Rs. 200/- from the accused to be given to his wife which I also gave. These three bundles were of gunny bags.' The evidence as to what the bundles contained has already been noticed above. The delivery of these very bundles stands unquestionably proved by the deposition of P.W. Mahander Singh.
10. The accused after being examined under Section 342 of the Code on the 21st of July, 1971, filed a written statement dated the 3rd of August, 1971. He, however, did not produce any witness in defense. He could have examined his wife to repel the evidence given by Mahander Singh that the three gunny bags containing six parachutes and the amount of Rs. 200/- brought to her from the appellant were delivered to her.
11. I may now turn to the contention that the testimony of P. Ws. 5, 7, 8 and 12 obtained by cross-examining them within the proviso in Section 162 of the Code cannot be relied upon. Mr. D.R. Sethi has with considerable ability given me his interpretation of the proviso and has submitted that it can be utilized only to contradict a witness or the witnesses and the evidence received by invoking the proviso has to be used only for testing credibility and cannot be used for any other purpose. In order to sub-stantiats his interpretation of the proviso he has cited Baladin v. State of Uttar Pradesh : 1956CriLJ345 ; Tehsildar Singh v. State of U.P. : 1959CriLJ1231 ; Dahyabhai Chhaganbhai Thakkar v. State of Gujarat : 1964CriLJ472 and Rameshwar Singh v. State of Jammu and Kashmir : 1972CriLJ15 and has referred to the Supreme Court judgment reported in 1973 Crim App. R. 109 : : 1973CriLJ664 . He has also drawn my attention to the observations made by me in the course of the judgment by which Cri. Appeal No. 151 of 1970 Sat Pal v. State was disposed of on the 9th of March. 1971 (Delhi). It was in : 1959CriLJ1231 that a detailed interpretation of the provision was recorded after tracing its history. The subsequent decisions do not disclose any departure.
In order to make a final approach to the meaning and scope of the proviso in Section 162 of the Code, I consider it necessary that Sections 160. 161 and 162 of the Code may be reproduced:
Section 160. Police officer's power to require attendance of witnesses.-- Any police-officer making an investigation under this Chapter may. by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the circumstances of the case and such person shall attend as so required:
Provided that no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides.
S.161. Examination of witnesses by police.--(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 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.
(3) 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.
S. 162. Statements to police not to be signed; use of such statements in evidence.--(1) No statements 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 anv 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, 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.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of Section 32. el. (1) of the Indian Evidence Act. 1872, or to affect the provisions of Section 27 of that Act.
It may be noticed that Sub-Section (3) in Section 161 was added by Section 2 of Act No. 2 of 1945. The addition was purposeful. In the process of investigation evidence is collected for the purpose of considering whether the accused is to be put on trial or not. Any person having anything about the occurrence may be interrogated by the police officer. Interpreting the provision in the judgment by which Criminal Appeal No. 151 of 1970 was disposed of I, observed:
The statement of such a person may not as of necessity be reduced into writing. There is discretion given in terms of Sub-Section (3) of Section 161 reproduced above. When does the Investigating officer exercise that discretion Surely, when he finds that the version given is worth being recorded and considered firstly by the prosecution agency to make up their mind whether to put in the challan or not.
Section 160 of the Code gives the power to the police officer making an investigation to require by order in writing the attendance of any person who may be within the limits of his police station or the adjoining police station and who according to the information with the police officer mav appear to be acquainted with the circumstances of the case and when so required such person is imperatively to come before the police officer who may then in the course of investigation exercise his discretion given by Section 161 (3) to reduce into writing any statement which may be made and which may appear to be relevant to the circumstances constituting the crime under investigation. At the stage when the powers given by Sections 160 and 161 are exercised the person interrogated and whose statement may be recorded would be a person possessed of knowledge at least regarding some of the incidents constituting the crime. Why is the police officer exercising the powers given by these provisions? He is discharging the high responsibility of discovering as to how the crime was committed and who will be the persons whose testimony will establish that the crime had been committed in a particular manner and who may ultimately be examined at the trial for bringing the guilt home to the accused. The persons whose statements may be reduced into writing may be the witnesses in embryo.
It is urged that Section 162 (1) as it precedes the proviso contains an imperative prohibition that the statement reduced into writing or any part thereof shall not be used for any purpose at any inquiry or trial save as thereafter provided. The argument is used for emphasising that the scope of the proviso is 'to contradict such witnesses'. It is submitted that the contradicting of the witness is limited to the impeaching of his credit.
In : 1959CriLJ1231 it was noticed that in the Act of 1872 Section 162 in the present Code was Section 119 and read as under:
An officer in charge of a police station or other police officer making an investigation may examine orally any person supposed to be acquainted with the facts and circumstances of the case and may reduce into writing any statement made by the person so examined. Such person shall be bound to answer all questions relating to such case, put him by such officer other than questions criminating himself.
No statement so reduced into writing shall be signed by the person making it nor shall it be treated as part of the record or used as evidence.
It was by an Act of 1882 that the provision was split into two sections. Section 162 in the Code then became:
S. 162. No statement other than dying declaration made by any person to a police-officer in the course of an investigation under this Chapter shall if reduced to writing be signed by the person making it or be used as evidence against the accused.
Nothing in this section shall be deemed to affect the provisions of Section 27 of the Indian Evidence Act, 1972.
Section 162 was again amended by Act 5 of 1898 and then it became:
(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 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 provision of Section 32 clause (1) of the Indian Evidence Act. 1872.
The provision as it emerged after the amendment, contained a vital change. The Court was given the discretion, on the request of the accused to refer to such statements of witnesses which may have been reduced to writing and then if it considered it expedient in the interest of justice it could direct that the accused be furnished with a copy or copies of the statement or statements so that the same may be used to impeach the credit of the witness in the manner provided by the Indian Evidence Act, 1872. Section 155 of the Indian Evidence Act being directly concerned with the impeaching of the credit of a witness clause 3 therein apart from other provisions in that Act became available to the accused. In terms of the said clause the credit of a witness could be impeached by proving his former statements inconsistent with any part of his evidence given in Court. The scope of the proviso permitted the use of all relevant provisions in the Evidence Act.
There arose conflict of opinion in the High Courts and by Act 18 of 1923 Section 162 again incurred amendment. It became:
S. 162. 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 a person making it nor shall any such statement or any record thereof whether in a police diary or otherwise or any part of such statement or record be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid the Court shall on the request of the accused refer' to such writing and direct that the accused be furnished with a copy thereof in order that any part of such statement if duly moved maybe used to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872. Where 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:
Provided, further that, if the Court is of opinion that any part of any such statement is not relevant to the subject-matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is expedient in the public interests it shall record such opinion (but not the reasons therefore) and shall exclude such part from the copy of the statement furnished vto the accused.
The change eliminated the discretion of the Court and conferred a right on the accused to gain at his request a reference to a statement reduced into writing and on getting a copy of it he could use the statement or any part thereof to contradict the witness in the manner provided by Section 145 of the Indian Evidence Act. Such part of the statement which may have been used for cross-examination could also be used for re-examination. 'The second proviso gave discretion to the Court on recording its opinion to keep back such parts of the statements reduced into writing which may be irrelevant or the disclosure whereof may not be in public interest. There was dissatisfaction with the provision and at present it is:
S. 162. Statements to the Police not to be signed; use of ... statements in evidence.--(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, 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.
(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, or to affect the provisions of Section 27 of that Act.
It will be appreciated that the second proviso is no longer there.
In its true scope Section 162 subject to the proviso raises a prohibition that no statement made by any person to a police officer in the course of an investigation if reduced into writing will be required to be signed by the person making the statement and whether contained in a police diary or otherwise neither the statement nor any part thereof shall be used for any purpose at any inquiry or trial in respect of any offence which may have been under investigation at the time when the statement may have been made and reduced into writing. The proviso is no longer concerned with the mere impeaching of the credit of a witness. Any statement reduced into writing or part thereof, if duly proved, can be used by the accused and with the permission of the Court by the prosecution to contradict the witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 and any part of such statement can be used for re-examining the witness for the purpose of explaining any matter which may have come on the record in the course of the cross-examination. An analysis of the proviso clarifies:
(a) The person must have been called as a witness by the prosecution in the course of an inquiry or trial under the Code;
(b) The statement of such a person must have been reduced into writing in the course of investigation which, if duly proved, may be used by the accused and if so permitted by the Court, by, the prosecution to contradict the witness in the manner provided by Section 145 of the Indian Evidence Act, 1872;
(c) The contradiction will be obtained in the manner provided by Section 145 of the Indian Evidence Act of 1872 and will enjoy the status of evidence within its scope.
The cross-examination of the witness either by the accused or the prosecution with the permission of the Court will be for the purpose of obtaining evidence of the witness by contradicting him by his former statement in respect of a contrary version which he may have given in the course of the inquiry or the trial. The statement of the witness containing his version of the occurrence or any part thereof is recorded on oath by the Court whereupon if the accused or the prosecution finds that it deserves to be contradicted the proviso is invoked. When the proviso is utilized the witness makes the answers on oath and if any contradictions are established they pertain to the version already given by him and become a part of his evidence. When weighing his evidence the Court will be concerned with the entire statement made by the witness which would certainly include that part of it which may have been obtained by invoking the proviso.
A consideration of Section 154 of the Indian Evidence Act would reveal various aspects related to the proviso in Section 162 of the Code. Section 154 in the Indian Evidence Act. is:
S. 154. Questions by Party to his own witness: The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.
Whereas the proviso, gives the liberty to the prosecution to seek the permission of the Court to utilize the former statement of the witness reduced into writing to contradict him in the manner provided by Section 145 of the Indian Evidence Act. Section 154 of that Act allows the Court to permit the prosecution to cross-examine the witnesses which it may have called. Where a witness called by the prosecution gives a version which may not be in accordance with his former statement then the prosecution without invoking the proviso in Section 162 of the Code may make a request to the Court and obtain the permission within Section 154 of the Indian Evidence Act to cross-examine him and the evidence which it may so obtain may establish the earliest version which a person may have given regarding the occurrence. Such a statement will be his positive evidence and not a deposition accruing by way of contradiction on account of his having been confronted by his earlier statement. Where the witness asserts that his version already given in Court is correct and he did not give any different version earlier then the need may arise for the prosecution to seek the permission of the Court within the proviso contained in Section 162 to cross-examine the witness in the manner provided by Section 145 of the Indian Evidence Act in order to contradict him. The Courts have to be very careful in this behalf. If the request by the prosecution falls within Section 154 of the Evidence Act then the evidence obtained would be covered by that provision. If the proviso in Section 162 is invoked then the evidence obtained will find its protection within the scope of the proviso which incorporates in itself the limitation that the contradiction will be sought to be established in the manner provided by Section 145 of the Indian Evidence Act,
It must be remembered that whether he is cross-examined by obtaining permission under Section 154 of the Indian Evidence Act or after invoking the proviso the witness is in the witness-box and is on oath making the statement in the course of a trial being held in accordance with the Code. The entire evidence so obtained would be substantive evidence and it cannot be accepted that the proviso In Section 162 of the Code allows merely the contradicting of the witness so as to impeach his credit. If that meaning is given to the proviso then it would remain confined to what it was before the amendment in 1923. The interpretation urged is repugnant to the proviso in Section 162 as in vogue.
As the proviso stands at present it is open to a Court to take into consideration the evidence adduced within the proviso to find out where the truth lies and to what extent a witness is reliable. The statement of the witness in its entirety is evidence which may find its corroboration from untarnished testimony otherwise available on the record of the case and as such it may be used in sustaining the convictior.
The Supreme Court while disposing of Criminal Appeal No. 200 of 1961 : reported in : 1973CriLJ664 , Jaswant Singh v. State of Punjab in paragraph 8 of its judgment dealing with the evidence blamed by utilizing the proviso in Section 162 of the Code, observed:
No doubt P, W. 3 has turned hostile, but in his statement to the police under Sector 161 he has given a version supporting the prosecution case. But in the Court he had stated that though P.W. 1 paid the amount to the accused as bribe the appellant threw the amount thereby implying that P.W. 1 was so to say, thrusting a bribe on an unwilling taker. It is not as if P.W. 3's evidence can be discarded altogether.' The Supreme Court took the view that part of the testimony falling within the proviso in Section 162 of the Code was to be taken into consideration along with the rest of evidence and that in spite of the contradictions P.W. 3's evidence could not be discarded altogether.
In every case the Court has to deal with the oral and documentary evidence as a whole. Although the statement of each witness is evidence in itself and has to be appreciated in entirety it has to be placed in the context of all other evidence and then appreciated for determining whether the prosecution has been able to establish the case. The proviso in Section 162 does not in any way reduce the status of the evidence obtained by invoking it as compared to the testimony otherwise furnished on oath. My attention has been drawn to the observation made in paragraph 8 of the Supreme Court judgment by which Civil Appeal No. 1787 of 1967 was disposed of on the 30th of October, 1973 : reported in : 2SCR124 . There the Court was not at all concerned with Section 162 of the Criminal Procedure Code. The attention of the Court was drawn to Section 145 of the Indian Evidence Act in a context where while dealing with Section 21 thereof the Court was considering as to when would admissions be substantive evidence.
As described earlier Section 162 has undergone many amendments. While at one time credibility of a witness could have been impeached by utilising it, the proviso as it stands permits that the version given in Court by a witness may be contradicted by cross-examining him on the basis of the statement made by him during the investigation which may have been reduced into writing. There will be no occasion for invoking the proviso if no statement comes on the record which may call for being contradicted. A statement is to be obtained within the proviso to contradict the statement which the witness may have already made. The earlier statement and the subsequent statement are both made by the witness in the course of his deposition which he may be making on oath before the Court. His examination-in-chief and his cross-examination whether under Section 154 of the Indian Evidence Act or enuring from the use of the proviso will be the evidence given in Court. The Court will apply the same yardstick to it.
Turning to the evidence of P. Ws. 5, 7, 8 and 12. some of their depositions fall within Section 154 of the Indian Evidence Act.
P. W, 5 stated in his examination-in-chief:
On 25-1-1969 Constable Murari Lal from 'B' Company reported at Battalion Head Quarters. He was then proceeding on leave. He told me that Sh. Lama Deputy Superintendent Police had sent six parachutes for the accused through him. He did not have any voucher for it. I reported the matter to the accused why the parachutes were lying in the verandah. The accused after seeing the said parachutes in the verandah sent for the Quarter Master, Jamadar Tarlok Singh who might have taken these away. I am not aware. I am not aware, if any, directions for removal of the parachutes were given by the accused to Jamadar Tarlok Singh. I am not aware who took away the parachutes.
At that stage the Public Prosecutor submitted that the witness was not adhering to his statement made under Section 161 of the Criminal Procedure Code. The Court permitted him to put to the witness questions by way of cross-examination.
These questions were to remain within the ambit of Section 154 of the Indian Evidence Act and were to incur the obligations of the proviso in Section 162 only where the statement reduced to writing under Section 161 of the Code was to be utilized for contradicting the witness.
The answers which P.W. 5 gave when cross-examined by the Public Prosecutor, were:
My statement was recorded by C. B. I. I did tell Inspector, C. B. L in my statement recorded by him that I had kept the parachutes in the verandah brought by Murari Lal and had informed about it to the accused. I produce the duty certificate Ex. P.W. 2/F before... Inspector of the C. B. I. vide memo Ex. P.W. 5/A which bears my signatures at point A/L
The answers were obtained by exercising the permission given by the Court within the scope of Section 154 of the Indian Evidence Act and no statement of the witness recorded during the investigation under Section 161 of the Code was put to him. Although occurring in his cross-examination by the Public Prosecutor the answers remained evidence within the ambit of Section 154 of the Evidence Act. That evidence was to be read along with the examination-in-chief.
Regarding P.W. 7 a similar situation arose. That witness stated in his examination-in-chief:
In January 1969 on the asking of Shri Tarlok Singh Jamadar I packed three bundles along with constable Chhotey Lal at the Quarter Master Store. I did not know what these bundles contained. They were of white colour. I cannot give the number of articles inside the bundles as I did not count them.
The note by the trial Court appearing in the brickets after the cross-examination, is:
(At the request of the Public Prosecutor that the witness is suppressing the truth, he is allowed to put such questions to the witness in the nature of cross-examination).
After that the Public Prosecutor received the following answers:
I was examined by the police. It is correct that I stated before the police that about a year back I packed six parachutes of white colour at the instance of Jamadar Tarlok Singh along with Chhotey Lal in three packages.
It stands clarified that the request by the Public Prosecutor was allowed within the scope of Section 154 of the Indian Evidence Act and the answers which he obtained by cross-examining the witness were surely the evidence at par with the examination-in-chief. The statements of P. Ws. 5 and 7 were to be appreciated as a whole for finding out the truth.
P. W. 8, when cross-examined after a similar request by the Public Prosecutor, stated:
My statement was recorded by the police at Silchar. It is correct that I stated before the police that I saw three bundles of parachutes being brought from the stores and being put in the vehicle and that these parachutes were in three bundles which were packed by Chhotey Lal and Nand Lal sometime ago in gunny bags which I saw while being packed.' No part of his statement recorded under Section 161 of the Code was utilized to contradict any version given by the witness at the trial and the answers, reproduced above, were evidence within Section 154 of the Indian Evidence Act.
P. W. 12 stated in his examination-inch ref:. In January 1969 under the direction of the accused I took some bundles in the Battalion Vehicle to Qr. Master Stores and handed over the bundles to Shri Trilok Singh Jamadar. Then I returned.
The Public Prosecutor obtained the permission to cross-examine the witness who answered:
I was examined by the I. O. I did not state before him that I noticed some parachutes in bundles in the vehicle or that these parachutes were unloaded at the Qr. Master Stores and handed over to Jamadar Trilok Singh. (Confronted with portion A to A of Police statement Ex. P.W. 12/A where it is so recorded).
The distinction between the evidence obtained by invoking Section 154 and/or the proviso in Section 162 of the Code became apparent inasmuch as the afore-quoted statement was obtained by invoking the proviso in Section 162 inasmuch as the witness had to be confronted with portion A to A in his Police statement Ex. P.W. 12/A which had been recorded under Section 161 of the Code. Whether obtained by invoking Section 154 in the Evidence Act or the proviso in Section 162 of the Code, the Court is duty bound to consider the entire statement of a witness for concluding as to what extent it establishes the case against the accused.
Be that as it may, where a party feels the necessity of putting to its own witness questions by way of cross-examination and obtains evidence by invoking Section 154 of the Evidence Act or the proviso in Section 162 of the Code, the Court has to apply judicial caution and has to be more careful in examining the testimony.
Bearing in mind every possible consideration which has to be applied to the appreciation of evidence I come to the conclusion that P.W. 19 Shri G.B. Lama did act under the instructions of the appellant when he sent the requests to the two companies for sending six parachutes. The testimony of Murari Lal (P. W. 6) re-mains un assailed that he brought the concerned parachutes from Shri M.D. Singh, P.W. 2. These parachutes were with him when he contacted Shri Lama P.W. 19 who told him that the same be delivered to the Adjutant Jamadar at Battalion Headquarters at Silchar. The statement of P.W. 6 describes the movements of the six parachutes. He met Jamadar Rattan Singh and told him that the six parachutes had been brought for the accused-appellant. He identified that the signatures marked 'Z' on Ex. P.W. 2/C were his which had been made in token of the receipt of six parachutes which were to be handed over to Shri Lama.
The evidence of P.W. 9 Trilok Singh established that sometimes at about noon on a day in January, 1969, six parachutes were brought to the Qr. Master Stores in the Bn. Vehicle and that he got them packed by constables Nand Lal and Chhotey Lal. Although the witness had to be cross-examined at the request of the Public Prosecutor towards the end of his cross-examination, he asserted:
It is incorrect to suggest that Asadu Prasad did not bring any parachute to me saying that the accused had sent these for packing or that I am telling a lie.
The evidence of Ram Pratap P.W. 10 linked up the events. He stated that Asadu Prasad brought the six parachutes from the Bn. Headquarter to the Quarter Master Stores in the Bn. Vehicle in which food used to be brought and that he saw the parachutes which were of white colour. The parachutes were then packed in his presence. In respect of the dispatch of the bundles containing the parachutes he stated:
On the 31st of January, 1969. at about 7.00 p. m. Mahinder Singh came to the Qr. Master Store in the Bn. Vehicle which brought us food and demanded the bundles. He took the bundles and left in the Bn. Vehicle.
The parachutes had been packed in those bundles in the presence of P.W. 10 Ram Pratap and in his presence the same were taken away in the Bn. Vehicle by Mahinder Singh. Mahinder Singh examined as P. W, 13 affirmed that he had met Ram Pratap Naik at the Quarter Master Store and the goods were loaded in the vehicle there. He did not know what those bundles contained, but the bundles were three in number. Those very three bundles were delivered by him to the wife of the accused-appellant. P. Ws. Ram Pratap and Mahinder Singh read together establish that the six parachutes were packed in the three bundles which were given to Mahinder Singh who on arriving at Delhi delivered them to the wife of the appellant. The facts established on the record prove that the accused-appellant did acquire dominion over six parachutes belonging to Company 'B' of the Central Reserve Police which were sent by P.W. 2 M.D. Singh its Commander and under his directions the accused got them packed and sent through Mahinder Singh to his wife. He has been rightly convicted under Section 409 of the Indian Penal Code and in terms of Section 5 (1) (c) and (d) under Section 5 (2) of the Prevention of Corruption Act. The prosecution brought home the guilt to the accused by producing overwhelming unassailable evidence. In this case no interference with the sentence is called for. The appeal is dismissed.