Contradiction” Under Section 145 Of The Evidence Act (Section 148 Of BSA) And Under The Proviso To Section 162 (1) Cr.P.C. (Section 181 (1) Of BNSS)

C O N T E N T S

I N T R O D U C T I O N

Any article on “contradiction” in the context of a “criminal trial” will not be complete without reference to the celebrated verdict by a 6 Judges Constitution Bench in Tahsildar Singh and Another v. State of U.P – AIR 1959 SC 1012 – 6 Judges – V. P. Sinha, S. J. Imam, J. L. Kapur, A. K. Sarkar, K. Subba Rao, M. Hidayatullah – JJ. The said verdict has become a locus classicus on the question of “contradiction” in the relm of criminal trial.

SECTION 145 OF THE EVIDENCE ACT

2. The later testimony of a witness can be “contradicted” during cross-examination with reference to his or her previous statements in writing or reduced into writing by recourse to Section 145 of the Evidence Act. The said Section reads as follows:-

“145: Cross-examination as to previous statements in writing.-- 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.”

IMPEACHING THE CREDIT OF A WITNESS

3. Section 145 of the Evidence Act along with Sections 138, 140, 146, 148, 154 and 155 constitute the main provisions for “impeaching the credit” of a witness by cross-examination. The word “impeach” when used with reference to a witness, signifies “to discredit” or “to show or prove that he is unreliable or unworthy of trust”. Where the witness has been successfully impeached and his evidence has not been, either wholly or in part, corroborated by other credible testimony in the case, it is within the province of the Court trying the issue to entirely or partly disregard his testimony. The “credit” or credibility of a witness depends upon –

1. his knowledge of the facts he testifies.
2. his disinterestedness .
3. his integrity.
4. his veracity.
5. his obligation to speak the truth under oath or affirmation.

denial,

disagreement,

conflict,

mismatch, or

a conduct which is discrepant, divergent or at variance with an earlier conduct.

“Contradiction” as envisaged by the proviso to Section 162 (1) Cr.P.C. and the latter limb of Section 145 of the Evidence Act

6. Neither the Indian Evidence Act, 1872 nor the 1898 Code nor the 1973 Code nor any of the corresponding new criminal statutes, defines the expression “contradiction”. But, the word “contradiction” has been judicially defined in the celebrated Tahsildar Sing's case as follows:-

“If the previous statement of the witness before the police officer during the stage of investigation and the later statement of the witness in his evidence before Court are so inconsistent or irreconcilable with each other that both of them cannot co-exist, then it may be said that one statement contradicts the other.” (Vide end of para 19 of Tahsildar Singh (Supra – AIR 1959 SC 1012)

If one is true, the other must be false.

If a witness says - “I saw “A” shooting “B” dead with a gun”. He says later – “I saw “C” stabbing “B” dead”. Both statements cannot stand together. If the first statement is true the second will be false and vice versa. (Vide para 18 of Tahsildar Singh (Supra – AIR 1959 SC 1012)

“OMISSION” EXPLAINED IN TAHSILDAR SINGH'S CASE

7. In Tahsildar Singh's case, the Constitution Bench was dealing with Section 162 of the 1898 Code which did not contain an Explanation which is there in Section 162 (1) of the 1973 Code. The provision corresponding to Section 162 of 1973 Code is Section 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS” for short) which also does not define the expression “contradiction”. The Constitution Bench explained the so-called “omission” in Section 162 of the 1898 Code. The observations made by the Bench are scattered in certain paragraphs of the verdict. The following are the propositions laid down by the Bench –

• The principle under Section 162 of the 1898 Code is that “a witness cannot be confronted with the unwritten record of an unmade statement”. (Vide para 23 of Tahsildar Singh (Supra – AIR 1959 SC 1012)
• Prima facie, a statement cannot take in an “omission”. A statement cannot include that which is not stated. (Vide para 18 of Tahsildar Singh (Supra – AIR 1959 SC 1012)
• Statements not reduced to writing by the Police Officer cannot be used for contradiction. (Vide para 26 of Tahsildar Singh)
• Although a particular statement is not expressly recorded, a statement that can be deemed to be part of that which is 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. (Vide para 26 of Tahsildar Singh (Supra – AIR 1959 SC 1012)
• While a bare “omission” can never be a “contradiction”, a so-called “omission” may sometimes amount to a contradiction. (Vide para 29 of Tahsildar Singh (Supra – AIR 1959 SC 1012)
• The principle of inherent repugnancy, may in one sense rest on “omissions”, but, by construction, the said “omission” must be deemed to be part of the statement in writing. Such omissions are not really omissions strictly so-called and the statement must be deemed to contain thereon by implication. A statement, therefore, in our view, not only includes what is expressly stated therein, but also what is necessarily implied therefrom. (Vide para 18 of Tahsildar Singh (Supra – AIR 1959 SC 1012)

8. The Constitution Bench observed as follows :-

“Contradiction under Section 145 of the Evidence Act is between what the witness asserted in the witness-box and what he stated before the Police Officer and NOT between what he said he told the Police Officer and what he actually told the Police Officer. In the latter case the question cannot be put at all. (Vide the latter portion of para 13 of Tahsildar Singh (Supra – AIR 1959 SC 1012).”

Again it was observed –

“Contradiction means the setting up of one statement against another and not the setting up of a statement against nothing at all.” (Vide para 23 of Tahsildar Singh (Supra – AIR 1959 SC 1012; Para 11 of Shashidhar Purandhar Hegde v. State of Karnataka AIR 2004 SC 5075 = (2004) 12 SCC 492 - Arijit Pasayat, C K Thakker – JJ ).

9. According to the Bench the prosecution witness could not be asked by the cross-examining counsel something which was not there in his statement to the Police but an “omission” could be inferred in the previous statement of the witness by way of necessary implication. The Bench gave the following Illustrations to elucidate the point.

Illustration 1

In his testimony before Court a prosecution witness says “I saw the accused running away”. But in his statement to the Police under Section 161 (3) Cr.P.C. what he told was “I did not see the accused running away”. What the defence counsel asks the witness is “Did you tell the Police that you saw the accused running away ?” The witness answers “Yes. I stated to the Police that I saw the accused running away”.

(The above question about something which is not there in the statement to the Police could not have been asked and the above answer cannot be put forward as an “omission amounting to a contradiction” because the statement of the witness to the “Police” was “I did not see the accused running away” and not “I stated to the Police that I saw the accused running away”.)

(Vide para 23 of Tahsildar Singh (Supra – AIR 1959 SC 1012); Para 151 of R K Dalmia v. Delhi Admn. – 3 Judges – S K Das, K, Subbarao, Raghubar Dayal – JJ; Para 11 of Shashidhar Purandhar Hegde v. State of Karnataka AIR 2004 SC 5075 = (2004) 12 SCC 492 – Arijit Pasayat, C K Thakker – JJ.)

Illustration 2

What the witness told the Police was –

“D” stabbed “C”.

But, what the witness deposed before Court during trial was as follows:-

“B” stabbed “C”.

This is a clear case of “contradiction” and not an “omission amounting to contradiction”. (Vide para 13 of Tahsildar Singh (Supra – AIR 1959 SC 1012)

Illustration 3

“Witness “A” made a previous statement to the Police as follows –

“I saw “B” stabbing “C” to death”

But in his deposition before Court during trial “A” stated as follows—

“I saw “B” and “D” stabbing “C” to death”.

Here the previous statement by the witness to the Police does not contain a statement as he deposed before Court. To that extent the previous statement of the witness contains an “omission”. It was held that the “omission” which could be “inferred” from the previous statement of “A” to the Police was that he saw “B” “only” stabbing “C” and not that he saw “D” also stabbing “C”. (Vide paras 18 and 26 of Tahsildar Singh (Supra – AIR 1959 SC 1012)

Illustration 4

Witness stated to the Police that he saw 3 persons beating a man. Later the witness stated in Court that 4 persons were beating the same man. Thus the number 3 before the Police became 4 before the Court. The fourth person was omitted to be mentioned in the statement to the Police. It was held that here the “so-called omission” amounted to a contradiction. (Vide para 23 of Tahsildar Singh (Supra – AIR 1959 SC 1012)

Thus, the Bench concluded that an “omission” under Section 162 of the 1898 Code must be deemed to be, by necessary implication a part of the previous statement of the witness made in writing to the Police. An omission in that statement is to be necessarily inferred from what is directly and expressly stated by the witness to the Police. (Vide paras 18 and 26 of Tahsildar Singh (Supra – AIR 1959 SC 1012).

THE DIRECT CONSEQUENCE OF EXPLAINING AN “OMISSION” IN TAHSILDAR SINGH'S CASE

10. The above view taken in Tahsildar Singh's case interpreting Section 162 of the 1898 Code means that the defence counsel cannot ask the prosecution witness either by a “leading question” or otherwise, something which is not there in the Section 161 statement given by the witness to the Police Officer. By asking such a forbidden question and fishing out an affirmative answer from the witness, the defence counsel cannot put forward the said answer as an “omission amounting to contradiction”. This is because the defence counsel by suggesting to the witness a statement which is not there in his police statement, is really “creating a statement by the witness” to the Police.

But, the law as laid down as above in paragraphs 18, 23 and 26 of Tahsildar Singh (Supra – AIR 1959 SC 1012) interpreting Section 162 of the 1898 Code, does not hold good now in view of the Explanation to Section 162 of the 1973 Code. This will be dealt with while discussing “omission amounting to contradiction” under the 1973 Code.

DISPUTE BETWEEN THE JUDGES WHO DECIDED TAHSILDAR SINGH'S CASE AS TO WHICH PART OF SECTION 145 OF THE EVIDENCE ACT COULD BE USED FOR CONTRADICTING A PROSECUTION WITNESS

11. In the celebrated Tahsildar Singh's Case (Supra – AIR 1959 SC 1012) the minority comprising of 2 Judges (Justice M. Hidayatullah and Justice Syed Jafar Imam) held that the defence counsel can cross-examine the prosecution witness not only to elicit a “contradiction” under the second limb of Section 145 of the Evidence Act, but can also “cross-examine” the witness by resort to the first limb of Section 145 of the Evidence Act. (Vide paras 40 to 58 of Tahsildar Singh (Supra – AIR 1959 SC 1012) But the majority comprising of 4 Judges led by Justice K Subba Rao, held that in view of the proviso to Section 162 (1) Cr.P.C., (which allows a “contradiction” alone to be proved), the cross-examination of the prosecution witness with regard to his previous 161 statement should be confined only to the second limb of Section 145 of the Evidence Act. (Vide para 13 of Tahsildar Singh (Supra – AIR 1959 SC 1012).

HOW DOES A “CONTRADICTION” ARISE AND WHAT IS THE “PROCEDURE” FOR CONTRADICTING A WITNESS.

12. Now a “contradiction” as envisaged by the proviso to Section 162 (1) of 1973 Code arises in the following manner—

“As any other witness the prosecution witness also deposes or gives evidence before a Court upon oath. A case instituted on a “Police Report” comes up for trial before the Court after an investigation by the Police Officer concerned. During such investigation the Police Officer may under Section 161 (1) of 1973 Code orally examine “any person” supposed to be acquainted with the facts and circumstances of the case. The words “any person” supposed to be acquainted with the facts and circumstances of the case” occurring in Section 161 (1) Cr.P.C. have been held to include not only a witness but also “an accused person” as well. (Vide –

• Syamo Maha Patro v. Emperor AIR 1932 Mad. 391 (FB), which was approved by the Privy Council in Pakala Narayana Swami v. Emperor AIR 1939 PC 47 – Lord Atkin - J;
• Para 3 of Velu Viswanathan v. State - 1971 KLT 80 (DB) – T. C. Raghavan, E K Moidu - JJ;
• Para 4 of Mathew Zacharia v. State of Kerala - 1974 KLT 42 (DB) – V. P. Gopalan Nambiyar, George Vadakkel – JJ;
• Para 39 of Mahabir Mandal and Others v. State of Bihar – (1972) 1 SCC 748 = AIR 1972 SC 1331 - 3 Judges – J. M. Shelat, H. R. Khanna, G. K. Mitter - JJ;
• Paras 32 and 33 of Nandini Satpathy v. P.L. Dani and Another - (1978) 2 SCC 424 = AIR 1978 SC 1025 – 3 Judges – V. R. Krishna Iyer, Jaswant Singh, V. D. Tulzapurkar – JJ ).
• Dipakbhai Jagadishchandra Patel v. State of Gujarat AIR 2019 SC 3363 = 2019 Cri.L.J. 3763 = 2019 KHC 6484 – Ashok Bhushan, K. M. Joseph – JJ).

After orally examining the person, the Police officer also “may reduce into writing” under Section 161 (3) of the 1973 Code the “statement” given by such person. During the subsequent trial before the competent court the said person may be examined as a prosecution witness to support the allegations made by the prosecution. While giving his testimony before Court if the witness deposes a fact diametrically opposite to what he previously stated before the Police Officer during investigation and if the testimony of the witness in Court and his irreconcilable statement given to the Police Officer cannot stand together, the cross-examining counsel will have to first ask the witness whether he made such a contradictory statement to the Police. If the witness admits having made such a statement, it amounts to proof of the “contradiction”. But, if the witness denies it or is unable to remember having made such a statement to the Police, the practice generally followed is to provisionally mark the contradiction subject to proof by the Police. The cross-examining counsel will then draw the attention of the prosecution witness to the contradictory portion of his or her statement given to the Police and elicit from the witness his explanation for such a contradiction. (This is due compliance with the second limb of Section 145 of the Evidence Act.). In a case where the witness denies having made such a contradictory statement to the Police, the contradictory part occurring in the statement of the witness will have to be duly proved by the Police Officer who had earlier questioned him and recorded his 161 statement.” (Vide para 13 of Tahsildar Singh (Supra – AIR 1959 SC 1012) ; Paras 18 and 19 of V. K. Mishra v. State of Uttarakhand AIR 2015 SC 3043 = (2015) 9 SCC 5888 – 3 Judges - T S Thakur, R K Agrawal, R Banumathi – JJ.)

THE PROCESS OF RE-EXAMINER “EXPLAINING” THE CONTRADICTION

13. The latter portion of the proviso to Section 162 (1) Cr.P.C also says that “when any part of the statement of a prosecution witness to the police is used for contradicting the witness, any part of such statement may also be used in the re-examination of such witness but only for the purpose of explaining any matter referred to in his cross-examination”.

What does it mean ? Re-examination even under Section 138 of the Evidence Act should only be for explaining any matter referred to in cross-examination. The purpose of incorporating the above words in the latter part of the proviso to Section 162 (1) Cr.P.C is to again make admissible a portion of the 161 statement of the witness, presumably to save him from being discredited, if possible. I will give an illustration –

“A prosecution witness “A” in a murder case deposed before Court in chief examination –

“I had seen the accused running away from the house of the deceased and at that time the accused was having a chopper in his right hand”.

But what he told the police in his 161 statement was –

“I saw the accused running away from the house of the deceased with a knife in his right hand”.

The defense lawyer, during cross-examination, promptly brought out the above contradiction. Supposing the 161 statement of the witness further states –

“I am not very sure whether the weapon which the accused was carrying was a knife or something else”.

The Public Prosecutor or re-examiner can definitely elicit the above statement to the police to explain the contradiction with a view to avoid the witness from being discredited. Strictly speaking, by this process what is elicited is really a corroboration, but only to explain the contradiction”.

THE EXTENT TO WHICH THE “TOTAL BAN” UNDER SECTION 162 (1) OF THE 1973 CODE (Corresponding to S.181 (1) of BNSS), OPERATES

14. There is a “total ban” under Section 162 (1) Cr.P.C. against the use, (during any inquiry or trial) of any “statement” made by any person to a Police Officer in the course of an investigation under Chapter XII Cr.P.C. But the proviso to Section 162 (1) Cr.P.C. partially lifts the above ban in the case of a “prosecution witness” and that too only for proving a “contradiction” in the manner provided under the second limb of Section 145 of the Evidence Act.

15. So, what is the special feature of a “contradiction” in the context of the proviso to Section 162 (1) of the 1973 Code read with the latter limb of Section 145 of the Evidence Act ?

The ban under Section 162 (1) Cr.P.C. against the user of the statement recorded under Section 161 (3) Cr.P.C. is a total ban. It is only in the case of a “prosecution witness” and that again in a case instituted on a “Police report” that the “total ban” under the proviso to Section 162 (1) Cr.P.C. is partially lifted and that too to prove a “contradiction” alone. This “contradiction” can be proved only in the manner provided under the latter limb of Section 145 of the Evidence Act. If a prosecution charge witness whose statement was recorded under Section 161 (3) Cr.P.C., was given up during trial by the prosecution, but was examined as a defence witness, his case-diary statement cannot be used at all for any purpose both by the prosecution as well as by the defence in view of the total ban under Section 162 (1) Cr.P.C. The same rule will apply if such a charge witness is examined as a court witness. (Vide para 17 of Tahsildar Singh (Supra - AIR 1959 SC 1012) In the case of all other witnesses who were not interrogated by the Police during investigation, the cross-examining counsel can elicit not only a “contradiction” under Section 145 of the Evidence Act but also a “corroboration” under Section 157 of the Evidence Act. If in a given case, a “prosecution witness” turns hostile to the prosecution, then the Public Prosecutor will have to seek permission of the Court under Section 154 of the Evidence Act to put to his own witness, questions which might be put in cross-examination by the adverse party. The Public Prosecutor will have to seek yet another permission from the Court under the proviso to Section 162 (1) Cr.P.C. to confront the witness with his 161 statement recorded previously by the investigating police officer.

THE EXTENT TO WHICH A “PROSECUTION WITNESS” CAN BE DISCREDITED

16. Depending on the importance of the contradiction, the prosecution witness may be discredited wholly or in part. If it is a “material contradiction” going to the root of the prosecution case, the Court may, in a given case, totally discredit the witness. But, if it is not a significant contradiction, the Court may ignore the same and still accept his or her testimony since the maxim “falsus in uno falsus in omnibus” (false in one particular aspect, false in all aspects) is not applicable in India. Notwithstanding the hostility exhibited by a witness on a particular aspect, the witness can still be believed with regard to his testimony on other aspects.

“OMISSION AMOUNTING TO CONTRADICTION” UNDER THE 1973 CODE

17. The restricted interpretation of an “omission amounting to contradiction” as indicated in paras 18, 23 and 26 of Tahsildar Singh (Supra – AIR 1959 SC 1012) is no more relevant in view of the Explanation to Section 162 of the 1973 Code. Such an Explanation was not there when Tahsildar Singh interpreting Section 162 of the 1898 Code, was decided. The said Explanation to Section 162 of the 1973 Code reads as follows—

Explanation – An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.

Thus, an “omission” under Section 162 of the 1973 Code is a material improvement or embellishment to what has been stated before the Police. Section 162 of the 1898 Code did not have an “Explanation” as obtained in Section 162 of the 1973 Code. This makes all the difference. The principle of interpretation of Section 162 of the 1898 Code that a witness cannot be confronted with the unwritten record of an unmade statement to the Police, is not applicable while interpreting Section 162 of the 1973 Code in the light of the Explanation engrafted to the latter. But, an omission to state a “fact” or a “circumstance” in the police statement can amount to a contradiction only if the same appears to be on a vital aspect of the matter or is a significant or material omission and is otherwise relevant to the context. (Vide Explanation to Section 162 Cr.P.C. See also para 11 of Francis Joy v. State of Kerala – 1989 (1) KLJ 585 – S. Padmanabhan – J). Since the Explanation to Section 162 Cr.P.C uses the expression “may”, what is pertinent to note is that it is not every omission or discrepancy that may amount to a material contradiction so as to give the accused any advantage. The word “may” introduces an element of discretion to the Court. (Vide Shyamal Ghosh v. State of W.B – (2012) 7 SCC 646 = AIR 2012 SC 3539 – A. K. Patnaik, Swatanter Kumar – JJ ).

A FEW INSTANCES OF “OMISSION AMOUNTING TO CONTRADICTION”

18. The following are a few instances where an “express omission” has been held to amount to a “contradiction” –

1. Where the witness deposed before Court that the deceased had made a dying declaration to him, but in his statement recorded under Section 161 Cr.P.C., he did not state about any such dying declaration. (Vide State of Punjab Vs. Parveen Kumar (2005) 9 SCC 769 = AIR 2005 SC 1277 – B. P. Singh, Arun Kumar - JJ; Khalil Khan Vs. State of M.P. (2003) 11 SCC 19 = AIR 2003 SC 4670 – N. Santhosh Hegde, B. P. Singh – JJ ).

2. Witness stating in Court that he had gone to the spot on hearing the sound of gunshot and tried to snatch away the gun from the accused. But in his police statement he did not state anything regarding the snatching of the gun. This is omission amounting to contradiction causing serious doubt about the truthfulness of the witness. (Vide State of Rajasthan Vs. Rajendra Singh (2009) 11 SCC 106 = AIR 1998 SC 2554 – G. T. Nanavati, S P Kurdukar – JJ ).

3. Version of the prosecution witnesses (also shown to be inimical to the accused) in Court was that the accused used lathis. But, such a version did not find a place in their police statements. Prosecution case not upheld (Vide State of U.P. Vs. Bannu (2009) 4 SCC 271 = 2009 Cri.L.J. 2234 – Dalveer Bhandari, Harjit Singh Bedi – JJ ).

4. Father of deceased alleging in Court for the first time about torture of his daughter by the accused mother-in-law. There was no mention of such torture in the statement of the father recorded by the police one year after the occurrence. In the light of the above omission father was disbelieved. (Vide Meera Vs. State of Rajasthan (2004) 11 SCC 231 = AIR 2004 SC 1879 – N. Santhosh Hegde, B. P. Singh – JJ ).

5. Witnesses in their statements under Section 161 Cr.P.C. attributing a clear intention to the accused to commit murder of his wife, but stating before the Sessions Court that the accused was insane (behaving like a mad man). It was held to be an omission amounting to contradiction. (Vide Dahyabhai Chhaganbhai Thakkar Vs. State of Gujarat = AIR 1964 SC 1563 = 1964 (2) Cri.L.J. 472 – 3 Judges - K. Subba Rao, K C Das Gupta, Raghubar Dayal – JJ )

6. It was held that the omission on the part of PWs 3, 4 and 8 in not stating before Court that there had been exhortation on the part of the accused persons as stated by them before the Police, would amount to contradiction. (Vide para 19 of Shri Gopal & another v. Subhash and others (2004) 13 SCC 174 = AIR 2004 SC 4900 – Doraiswamy Raju, S. B. Sinha - JJ).

NOTES BY THE AUTHOR: This is actually not an omission amounting to contradiction. As per the Explanation to Section 162 (2) Cr.P.C. the omission should be in the statement given to the Police and not in the testimony before Court. The exhortation mentioned by PWs 3, 4 and 8 in their statements before the police could have been put to them during cross-examination and if denied, could have been marked as a contradiction. Their omission to mention about the exhortation when examined before Court is only an omission in their testimony before Court and not in their statements to the Police and such an omission before Court cannot be treated as an “omission amounting to contradiction” falling under the Explanation to Section 162 (2) Cr.P.C.

Supposing the witness told the Police that A2 was holding a chopper, but in Court said that A2 was not holding a chopper. This is not an omission amounting to contradiction since the omission is not in the statement to the Police recorded under Sec 161 Cr.P.C. Such omissions in the testimony before Court are really material contradictions.

(In all the above cases it was the “Explanation” to Section 162 of the 1973 Code which has been applied to find out the “omission” in the statements given by the prosecution witnesses to the investigating Police Officers.)

An omission in order to become a contradiction under the Explanation to Section 162 (2) Cr.P.C. should be in the statement given by a prosecution witness to the Police as against an improvement or embellishment made in Court thereby creating a serious doubt about the credibility of the witness. (Vide Ashok Vishnu Davare v. State of Maharashtra (2004) 9 SCC 431 – N. Santhosh Hegde, B P Singh – JJ; Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra (2010) 13 SCC 657 = 2011 Cri.L.J. 705 – P. Sathasivam, Dr. B. S. Chauhan – JJ; Baldev Singh v. State of Punjab (2014) 12 SCC 473 – A. K. Patnaik, Gyan Sudha Misra – JJ; Harbeer Singh v. Sheeshpal (2016) 16 SCC 418 = AIR 2016 SC 4958 – Pinaki Chandraghose, Amitava Roy – JJ).

C O N C L U S I O N

19. From the discussion as aforesaid, the following conclusions can be reached –

a) The ban under Section 162 (1) Cr.P.C. (corresponding to Section 181 (1) of BNSS) against the user of the statement or any part thereof made by a person to a Police Officer during the stage of investigation, is a total ban at any “inquiry” or “trial” in respect of the offence which was under investigation.

b) The “total ban” as above is partially lifted only in the case of a “prosecution witness” and that too for the limited purpose of eliciting a “contradiction only” and not a “corroboration”.

c) What is a contradiction ? - If the previous statement of a person (including a witness and an accused) made before the Police Officer during the stage of investigation and the later statement of such person in his or her evidence before Court are “so inconsistent or irreconcilable with each other that both of them cannot co-exist, then it may be said that the earlier statement contradicts the later statement within the meaning of Section 145 of the Evidence Act (corresponding to Section 148 of the BSA, 2023) and the proviso to Section 162 (1) Cr.P.C. (corresponding to the proviso to Section 181 (1) of BNSS, 2023).

d) Under Section 162 of the 1898 Code which was the provision interpreted by Tahsildar Singh's Case (Supra – AIR 1959 SC 1012) a previous statement to the Police was inevitable and “omission amounting to contradiction” could arise only if such an omission could be deemed as a necessary inference to be part of such “previous statement” to the Police. But under Section 162 of the 1973 Code, in view of the Explanation to the said Section, even the absence of a “previous statement” to the Police on a matter testified before Court by the prosecution witness, can constitute an “omission”. Consequently, the view taken in Tahsildar Singh's Case and other verdicts interpreting Section 162 of the 1898 Code to the effect that it is not open to the cross-examining counsel to ask the prosecution witness whether he had made any previous statement to the Police on a matter in respect of which the witness deposed before Court for the first time, is no more applicable in a prosecution under the 1973 Code. To put it differently, if a prosecution witness made before Court a statement for the first time, it will be open to the cross-examining counsel to ask the witness whether he or she had made such a statement when interrogated by the Police during investigation.

e) The “total ban” under Section 162 (1) of Cr.P.C. (corresponding to Section 181 (1) of BNSS) will apply to any “defence witness” or “Court witness” whose statements were recorded by the Police during the investigation of the same case.

f) The interdict against user of the statement or any part thereof of a person made during investigation by the Police, will not apply to a “civil case” or to a proceedings for “preventive detention” or to a “writ petition” before the High Court since these proceedings are not proceedings for “inquiry or trial” of the offence which was under investigation.

Author is Former Judge, High Court of Kerala. Views Are Personal.