P L D 1964 Dacca 256 (PLP)

"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," and then, "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." The first part relates to cross‑examination of a witness with regard to his previous statements. The second, which is joined with the first by the conjunction "but" relates to the use of the writing containing the statements for the purpose of contradic tion. The learned Deputy Legal Remembrancer argues that the use of the word "contradict" and the expression "for the pur pose of contradicting him", clearly indicates that the procedure of drawing the attention of that witness is necessary only when the object is to tender the writing for the purpose of contradiction as mentioned in subsection (3) of section 155 of the Evidence Act. Section 155 of the Evidence Act provides for impeaching the credit of a witness and the manner therefore. Subsection (3) of the said section says that one of the manners is by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.

9. In the case of Mohammad Sarwar v. Emperor (A I R 1942 Lah. 215) on which reliance has very strenuously been placed by the learned Deputy Legal Remembrancer in support of his contention, it was observed by a Division Bench of the Lahore High Court that "the whole of the ground covered by section 145 is included in section 155, Evidence Act. "With due respect to the learned Judges, we find it difficult to agree with this view. It is true that for the purpose of impeaching the credibility of a witness, that is to say, in order to show that the witness is unworthy of belief, a previous statement, which is contradictory to his present state ment, may be proved but the purpose of having such a statement cannot be limited to section 155 (3) of the Evidence Act. When a previous statement recorded under Chapter XVIII of the Code of Criminal Procedure is brought in, the purpose may be one or the other of the three purposes already mentioned, namely, to corroborate the present statement under section 157 of the Evidence Act or shake the credibility of the witness under section 155 (3) or to treat it as substantive evidence under section 288 of the Code of Criminal Procedure. In the latter two cases the statement is brought in only because the present statement is in conflict with. it but while in the first of these two it is done to show that the witness is un worthy of belief, in the second it is done so that the former statement can be acted upon in preference to the present. The contradiction contemplated by the second part of section 145 of the Evidence Act is, thus, present in the second case also and therefore it is wrong to say that the whole of the ground covered by section 145, Evidence Act, is included in section 155 of the said Act. On the other hand, the converse is true but section 145 of the Evidence Act does not contain section 155 (3) of the said Act only.

10. The Lahore decision mentioned above has taken the view that compliance with the provisions of section 145 of the Evidence Act is not necessary for transferring the evidence of the committing Court to the Sessions file under section 288, Criminal Procedure Code. This case appears also to be the basis of the decision in the case of The State v. Ain Khan, as it has been said to contain "more cogent, convincing and sound" reasonings than the decisions reported in A I R 1951 S C 441=2 P C 150 wherein a contrary view was taken. We have already indicated why we are unable to accept the observations of the learned Judges in this case in regard to sections 145 and 155 of the Evidence Act. Apart from the observations, already discussed above and except relying upon certain decisions or indicating a mere preference for one to the other, the learned Judges have not given any reasonings of their own in support of the conclusion reached by them. Ramlal, J., who delivered judgment in the case, refused to follow the two decisions, which were relied upon in support of the contention that compliance with the provisions of section 145 of the Evidence Act is necessary even when evidence is brought on the Sessions record under section 288 of the Code of Criminal Procedure. The learned Judge has, however, indi cated the grounds on which he has rejected the authorities cited before him. It is therefore necessary to examine in details these grounds along with the reasons given in the decision dissented from. One of the said two authorities in the case of Nunhu Manton v. Emperor (A I R 1930 Pat. 338) wherein Scroops, J., observed : "The whole point here is whether such a statement can be admitted without put to the witness. There is no doubt, having regard to the state of the authorities that once they are admitted they are on the same footing with any other evi dence in the case for the language of section 288, Criminal P. C. is quite clear now. (Since the amendment of 1923) but section 145, Evidence Act must govern the position in so far as these statements are used for contradicting the witnesses. The learned Government Advocate, however, argues that he does not wish to contradict the depositions of these witnesses given in the Sessions Court by means of the depositions in the first Court, he wants the latter to be taken simply as substantive evidence in the case along with the other evidence but this in my opinion is begging the question. I do not see how the prosecution can place on the record to contradictory statements from the same witness and rely on one as substan tive evidence without contradicting the other and I do not see that the purpose for which the original statement in the committing Court is brought on the record makes any difference if that is the incidental result. In other words, my opinion is that section 145, Evidence Act, operates even if contradiction is not the main purpose of bringing the first deposition on the record but is only incidental thereto. This observation and other observations to the similar effect in this case have been found in Lahore case "to be in direct con flict with the decision" of the Privy Council in Fakira and others v. King‑Emperor. We have already shown that there is no basis for this conclusion as the Privy Council did not at all consider the question. The decision of the Allahabad High Court in the case of Queen‑Empress v. Dan Dahai (ILR7All.862) has not been accepted as it was not followed by the same Court in the case of Emperor v. Dwarka Kurmi (ILR28All.683). In Dan Dahai's case. Straight J., while dealing with section 288 of the Code of Criminal Procedure observed. "That section was never intended to be used so as to enable a Court trying a case to take a witness's deposition bodily from the Magistrate's record, as the Judge has done here, and to treat it as evidence before itself; and I entirely concur in remarks made on this head by Phear, J., in Queen v. Aman ullah 12 Beng. L R App. 15 corsp. to 21 W R Cr. 49, corres ponding. At any rate the Judge was bound to put to the wit nesses he proposed to contradict by their former statements the whole or such portions of their depositions as he intended to rely upon in his decision so as to afford them an opportunity of explaining their meaning, or denying that they had made any such statements, and so forth. The course adopted by the Judge was contrary to practice, and inconsistent with all the rules regulating the admissibility of evidence . . . ."

12. The observations quoted above fall into two heads. The first is, whether the entire deposited of a witness in the committing Court can be admitted, while the second part relates to the necessity of drawing the attention of the witnesses before such depositions are admitted under section 288, Criminal Pro cedure Code. It is only the first part of the above observations of Straight, J., that was quoted in 28 All. 683 by Aikman, J., with the following observation. "I am glad to have had an opportunity of expressing my dissent from the dictum in Queen‑Empress v. Dan Sahai, referred to as to the correctness of which I have for many years entertained the strongest doubt." This observation, therefore, cannot be said to disprove the second part of Straight, J's enunciation bearing upon the proce dure for such admission. On the contrary if two judgments that is those by Bannerjee and Aikman, JJ., are read as a whole, it will be found that there are indications of approval so far as the procedural aspect is concerned.

13. In our view, the decision of the Lahore High Court in Muhammad Sarwar v. Emperor, cannot be said to have given any weighty reasons for holding that for admission of the deposi tion of a witness in the committing Court under section 288, Code of Criminal Procedure, it is not necessary to draw the attention of the witness of the portion which is said to be in con flict with his evidence in the Sessions Court. In the case reported in 13 D L R 911, Hasan and Asir, JJ., have held that the discretion conferred on the Sessions Judge under section 288, Criminal Procedure Code, is a wide one, which cannot be circums cribed by the limit or consideration of section 145 of the Evidence Act. With due deference it is difficult for us to see how the application of section 145 of the Evidence Act foe the purpose of admission of a deposition under section 288, of the Code of Criminal Procedure really circumscribes the discretion. In our view, such application rather facilitates the exercise of the discretion wisely and judiciously. If the learned Judges wanted to say that this discretion enabled the Sessions Judge to bring on the Sessions Court record the deposition of a witness before the Committing Court at any stage, i.e., whenever he liked and even the back of the parties, that, we are afraid, will lead to dangerous consequences, and in many cases, instead of ensuring justice, will entail grave injustice. The apparent conflict in the two depositions may not be a real one and may be capable of explanation. How can such an explanation be had unless the witness gets an oppor tunity to give it. In our view, this can only be possible if the attention of the witness concerned is drawn to the conflict as c provided in the second part of section 145 of the Evidence Act. This provision contains a salutary principle which applies to every case, civil or criminal, where a party wants to relay on a previous statement for the purpose of showing that the evidence given in the case cannot be relied upon because of a conflicting earlier statement. In a civil case no doubt the pur pose for bringing on record the previous conflicting statement cannot be anything other than what is said in section 155 (3) of the Evidence Act. In a criminal case however, apart from the above purpose it can be brought in to be treated as sub stantive evidence. Whatever be the ultimate purpose the object is to show the conflict. We are, therefore, of the view that sec tion 145 of the Evidence Act embodied a sound principle, which received recognition of the Privy Council in these cases of Bal Gangndhar Tilak and others and Shriniwas Pandit and another (L R 421 A 135 ) weather in it was said: "On general principles it would appear to be sound that if a witness is under cross‑examination on oath he should be given the opportunity, if documents are to be used against him, to tender his explanation and to clear up the particular point of ambiguity or dispute. This is a general, salutary and intelligible rule and where a witness's reputations and character are at stake the duty of enforcing this rule would appear to be singularly clear." This observation, though made in a civil case cannot be brushed aside only on that ground while considering the question of admission of evidence under section 288, Code of Criminal Procedure. This is based on a sound juristic principle and will apply whenever the object is to show a contradiction irres pective of the ultimate purpose. A departure from this rule is beset with dangerous possibilities and is likely to result in injustice more often than not. In the case of the State v. Ain Khan, the learned Judges did not follow the decision of the Lahore High Court in the case of Fateh Beg and another v. Crown which disproved of the decision in Muhammad Sarwar's case, as according to them it was mainly based on the decision of the Indian Supreme Court in the case of Tara Singh v. The State, which in its turn basically relied upon the observation of the Privy Council in the civil case referred to above. With disrespect, however, we may point that the premises mentioned above can be said to be based on facts. The learned Judges in deciding the cases of Fateh Beg and Tara Singh, have given their own reasons for holding why the attention of the witnesses whose statements in the Committing Court are sought to be put in under section 288, Criminal Procedure Code, is to be drawn. In doing so in the case of Fateh Beg reliance has no doubt been placed on Tara Singh's case and in the latter on the observations of the Privy Council but in neither case can it be said that the decision is based mainly or basically on that consideration. In the case of Fateh Beg, S. A. Rahman, J., observed: "The words "for all purposes subject to the provisions of the Indian Evidence Act, 1872" were added to this section by an amendment in 1923. Surely, one object of treating the pre vious statement as, evidence would be to contradict the state ment of a witness made at the Sessions trial and section 145, which is a part of the Evidence Act, should come into play, on the language of section 288, Criminal Procedure Code. After the proper procedure has been followed and the Sessions Judge has in his discretion admitted the previous statement under section 288, Criminal P. C., as evidence at the trial, it may of course be treated as evidence in the case for all purposes."

14. In the case of Tara Singh v. The State, Bose J., while dealing with this question, observed :‑

"I see no reason why section 145 of the Evidence Act should be excluded when section 288 states that the previous state ments are to be `subject to the provisions of the Indian Evidence Act.' Section 145 falls fairly and squarely within the plain meaning of these words. More than that. This is a fair and proper provision and is in the accord with sense of fairplay to which Courts are accustomed. Even the learned Judges who take the first view consider for the most part that though it is not obligatory to confront a witness with his former state ment when section 288 is resorted to, it is always desirable that that should be done if only for the reason that an omission to do so weakens the value of the testimony. I am of opinion that matter is deeper than that, and, giving effect to the plain meaning of the words subject to the provisions of the Indian Evidence Act, as they stand, I hold that the evidence in the Committing Court cannot be used in the Sessions Court unless the witness is confronted with his previous statements as required by section 145 of the Evidence Act. Of course, the witness can be cross‑examined about the previous statement and that cross‑examination can be used to destroy his testimony in the Sessions Court. If that serves the purpose of the prose cution, then nothing more is required, but if the prosecution wishes to go further and use the previous testimony to the contrary as substantive evidence, then it must, in my opinion, confront the witness with those parts of it which are to be used for the purpose of contradicting him. Then only can the matter be brought in as substantive Evidence under section 288."

15. The observations, quoted above, contain sound reasons and are founded on basic principles relating to administra tion of justice. The learned Deputy Legal Remembrancer has attempted to show that Bose, J., himself in the case of Bhagwan Singh and The State of Punjab (1952 S C A 513), did not follow his earlier decision in Tara Singh's case. This contention has no basis. On the other hand, if the decision is read carefully, it will be seen that the principle enunciated in Tara Singh's case was reiterated. Reliance has also been placed by the learned Deputy Legal Remembrancer on a number of decisions but these have no bearing on the question before us except two, to which reference will be made presently. The rest proceeded on the basis that evidence put in under section 288, Criminal Procedure Code, cannot be said to be limited to the purposes of ;corroboration and contradiction as provided in the Evidence Act but is evidence " for all purposes " including the purpose of being treated as substantive evidence. In the case of Rano v. Emperor (A I R 1944 Sind 178), a Division Bench of the Sind Chief Court while consider ing the propriety of the admission of some evidence in the Committing Court, which was completely given a go‑by in the Sessions Court, found that the witnesses were questioned about the previous depositions and therefore it could be said that the provisions of section 145 of the Evidence Act were observed. The learned Judges, however, went on to say that if this were not so, they were not in agreement with the view expressed in A I R 1930 Pat. 338 as a contrary view was expressed in some other decisions where it was observed that the words "subject to the provisions of the Evidence Act" meant to exclude hearsay and irrelevant evidence. While we agree that that was a purpose for which these words were added in the section, we are unable to agree with any decision, which takes the view that this was the only purpose, for which the words found place in the section. The words cover all the provisions of the Evidence Act and as section 145 of the Evidence Act is included in the same, the provisions embodied in it will be attracted whenever by pressing them into service the cause of justice may be furthered.

16. In the case of Zila Singh v. The State (A I R 1954 Pb. 182), a Division Bench of the Punjab High Court has held that it is not a condition precedent to draw the attention of the witness to his statement in the Committing Court for admission of the same under section 288, Criminal Procedure Code, but in the interest of justice the Court will give an opportunity to explain his position. It has also been found that the words "subject to the provisions of the Evidence Act" have reference only to provisions relating to relevancy and admissibility, etc., in the Evidence Act. The learned Judges, in arriving at their conclusions have no doubt referred to some decisions to which reference will presently be made, in which the contrary view was taken but did not take note of the reasons given in support thereof. The judgment in this case was delivered on the 24th of November, 1963, but the decisions of the Supreme Court in the cases of Tara Singh and Bhagwan Singh, though of much earlier dates, did not find mention in it. We have no doubt that had these cases been cited the decision would have been otherwise. With us, however, the position is different. In our opinion, the reasons given in the Supreme Court decisions are weighty and we have found no ground to reject the same on a read ing of the Punjab High Court decision. We now proceed to consider some other decisions, which support the view that the provisions of section 145 of the Evidence Act relating to the procedure for admission of previous statements are attracted even when such statements are put in under section 288, Criminal Procedure Code.

17. In the case of Heramba Lal Ghosh v. Emperor (78 C 1, J 217), Edgley, J. observed :‑ "It should also be noted that the application of the pro visions of section 288 of the Code of Criminal Procedure is a matter within the discretion of the presiding Judge. In our view it is not a proper exercise of the discretion for the Judge to allow the deposition of a witness before the Committing Magis trate to be used as substantive evidence in a case unless the party seeking to do so draws the attention of the witness to any part of the previous statement under the provisions of section 145 of the Evidence Act, with regard to which any discretion may arise or unless the Judge himself puts the neces sary question for the purpose of observing this procedure."

18. A full Bench of the Calcutta High Court consisting of five Judges in the case of Emperor v. Zawar Rahman (I L R 31 Cal. 142), took the view that in a trial before a Court of Sessions, counsel for the prisoner was not entitled to refer to the depositions given before the Committing Magistrate for the purpose of contradicting the witnesses without drawing their attention to the alleged contradictions in their previous statements and given them an opportunity of explaining the same. In this case after the close of the prosecution case, counsel on behalf of the prisoner claimed a right to read to the Jury the depositions taken before the Magis trate for the purpose of showing that the evidence given by the witnesses before the Magistrate was contradictory to the evidence given at the trial. The argument that this could be done under section 288, Criminal Procedure Code, even though atten tion of the witnesses not drawn, was not accepted.

19. It is, therefore, evident that the preponderance of judicial opinion is that the procedural provisions of section 145 of the Evidence Act are to be complied with as condition‑prece dent to admission of evidence under section 288, Criminal Proce dure Code. That is not, however, the only reason for accepting this view. According to us the decisions, which contain this view, have given irrefutable reasons in support of it which have not either been considered or met in the cases where the contrary view was taken. Once it is held that the provisions of section 145 of the Evidence Act must be complied with before admitting evidence of the committing Court under section 288 of the Code of Criminal Procedure, it logically follows that only such portions, to which attention has been drawn, are evidence and no other. Our answer therefore, to the first question is in the negative and to the first part of the second is in the affirmative and to the second part is in the negative.

20. We have already indicated earlier that there are six eye witnesses in this case. They are P. W. 1 Adarmani Bewa, P. W. 2 Harendra Nath, P. W. 3 Upen Haldar, P. W. 5 Rajen Haldar, P. W. 6 Dayal Chandra and P. W. 7 Jogendra Nath. These witnesses have deposed that the occurrence took place on the bigha‑plot, which was taken possession of by the deceased in pursuance of the order in his favour passed in the pre‑emption case. It is not disputed that the said land was in his possession. The defence contention, however, is that Chandra Kanta wanted forcibly to take possession of the 5 Katta plot of Tojambar by ploughing it when the occurrence took place. The important question, therefore, is where did the occurrence take place. All the six eye‑witnesses have uniformaly deposed and that is also the statement of the deceased in the dying declara tion Exh. 4 recorded on the 27th of June 1960 at about 10‑34 a.m. and in the petition of complaint (Exh. 5) filed by him on the 27th of June 1960 that the occurrence took place while Chandra Kanta along with P. W. 2 Harendra was ploughing the one bigha‑plot. The evidence of the eye‑witnesses on this point remains unshaken in cross‑examination. Of these witnesses, P. Ws. 1 and 2 may be said to be interested but not the others. It has been said that P. Ws. 5 and 6 are chance witnesses and that the names of P. Ws. 6 and 7 were not mentioned in Exh. 5, the petition of complaint of Chandra Kanta, P. W. 7 Jogendra was not also mentioned in the petition of the complaint Exh. 6 filed by P. W. 1 Adarmani Bewa. These considerations do not lead us to doubt the presence of these three witnesses at the time of occurrence and their evidence in regard to the place of occurrence.

21. The defence has examined D. W. 2 Dr. Mukhlesuddin Talukdar, a relation of accused Tojambar Ali. He has admitted that he was not present at the time of occurrence. His evidence, however, is that in the evening of the date of occurrence he found out paddy of Tojambar's 5 Katta land damaged. This hardly proves that the occurrence did not take place on the one bigha land but took place on the 5 Kattas plot. Some comments have been made regarding the non‑exami nation of one Ananta who was mentioned in Exh. 5 as being present with the deceased at the time of ploughing of the land. It has been said that the prosecution has not only examined this important witness who is a co‑sharer of the deceased but omitted his name in all subsequent statements relating to the occurrence including the one made by the deceased in his dying declaration (Exh. 4). Non‑examination of Ananta or the fact that his name was not mentioned in the evidence in Court, in the dying declaration of the deceased and the petition of complaint of P. W. 1 Adarmani (Exh. 6) does not, in our view, falsify the evidence relating to the occurrence or throw any doubt on it. We accept the prosecution evidence relating to the place of occurrence.

22. P. W. 1 Adarmani in her evidence has named the six appellants and 1 Akkel Ali as the participants in the occur rence. P. W. 2 Harendra Nath named Chhota Gada, Tojambar, Nur Muhammad, Wajed and Asmat. He however, identified the first four only. P. W. 3 Upen Haldar named Tojambar, Nur Muhammad, Alam (Shame Alam) Wajed and one Yakub Ali but he identified all the accused in the dock. P. W. 5 Rajen Haldar has said that he recognised Tojambar, Alam, Nur Muhammad, Wajed and Chhota Gada. P. W. 6 Dayal Chandra has named Tojambar, Chhota Gada. Alam, Nur Muhammad and Wajed and lastly, P. W. 7, Jogendra Nath has named Tojambar, Chhota Gada, Wajed, Alam, Nur Muhammad and Moksed. In his evidence in the committing Court, however, he did not mention the name of Moksed. His atten tion to his committing Court statement was drawn in this regard and, therefore, we have admitted it under section 288, Criminal Procedure Code. The position, therefore, is that while there is over‑whelming evidence with regard to participation of five of the appellants, that evidence as against Moksed is rather meager. It has also been proved that Chhota Gada and Wajed were armed with the deadly weapons. It is true that the name of Moksed finds mention in Exhs. 4 and

5. We, however, find that while in Exh. 5 it was said that the deceased was beaten with lathis by four persons including Moksed, in Exh. 4, it was said that he was struck by lathi by Moksed alone. The important fact that leads us to hold that the evidence against Moksed is doubtful is that four out of the six eye‑witnesses have not named him in the Sessions Court. He, in our view, is entitled to the benefit of doubt.

23. The appellant Chhota Gada has been implicated by all the eye‑witnesses for giving a ramdao blow on the back of Chandra Kanta. He said so both in Exhs. 5 and 4, Chandra Kanta was examined by P. W. 4 Dr. A. N. Waheed, Assistant Surgeon Perojpur Hospital on the 26th of June 1960, and by P. W. 10 Dr. Noor Muhammad, Sub‑Assistant Surgeon, Barisal Hospital on the 29th of June 1960, at 11‑30 p.m. The evidence of the doctors clearly supports the assault with a ramdeo deposed to by the eye‑witnesses. Nothing has been elicited from the eye‑witnesses to shake their credibility in this regard. P. W. 10 Dr. Noor Muhammad has said that Chandra Kanta was in hospital from 29th of June 1960, until his discharge on the 19th of July 1960, when also he could not move his lower limbs. The charge against Chhota Gada under section 326 of the Penal Code has been proved to the hilt.

24. The result, therefore, is that we allow the appeal of Moksed Ali, set aside his conviction and sentence and acquit him. He is discharged from his bail bond. The convictions of Chhota Gada under sections 148 and 326 of the Penal Code are affirmed ; so also that of Wajed Ali under section 148 of the Penal Code and those of Tojambar, Samer Alam and Nur Muhammad under section 147 of the Penal Code.

25. The sentences passed in this case appear to be severe. We feel that the ends of justice will be met if the sentences under section 148 are reduced to one year's rigorous imprisonment and those under section 147 to six months' rigorous imprisonment and the sentence under section 326 is reduced to four years' rigorous imprisonment. The sentences of Gada under two counts will run concurrently. With these modifications the appeals of the other appellants are dis missed. Appellants, Tojambar, Samer Alam, Wajed Ali and Nur Muhammad will surrender to their bail and serve out their sentences. SIDDIKY, J.‑I agree. A. S. CHOWDHURY, J.‑I agree. S. Q./K. B. A. Order accordingly.