LexMAHABIR SINGH versus STATE OF HARYANA
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MAHABIR SINGH A V. STATE OF HARYANA JULY 26, 200 I [K.T. THOMAS AND R.P. SETHI, JJ.] B Evidence Act, 1872 : Section 145-Previous statements in writing-Cross-examination as to-- Entries in Case Diary-Contradicting a police officer-Manner in which it is C to be done-Held, Author of the entries to be given an opportunity to explain the contradiction after drawing his attention to those entries intended to be so used for contradiction. Code of Criminal Procedure, 197 3 : Section 172-Proceedings in investigation-Diary of-Contradiction- Failure by public prosecutor to explain-Power of court under-Held, Court cannot use power under S.172 to explain the contradiction. D Case Diary-Scope and ambit of-Held, Entries in such diaries cannot E be used as evidence and ure only meant to aid the court to decide on a point. Section 164-Confessions and statements-Recording of-By a- Magistrate-Scope and power of-Held, Accused need not be produced by police/or recording his confession-But his appearance must be in the course of an investigation-Even if the Magistrate believes· that investigation has F commenced and the person is concerned in such a case his confession may be recorded-Otherwise all and sundry cannot demand recording of confession by a Magistrate. Confession-Recording of-Pre-requisites of-Held, Magistrate must explain to the person making a confession that he is not bound to do so, and G that if he does so, such confession may be used as evidence against him- Further, the Magistrate has to be satisfied that the confession is a voluntary one. Words and Phrases : 37 H 38 SUPREME COURT REPORTS [2001] SUPP. I S.C.R. A "At or about the time"-Meaning of-In the context of S.157 of the Evidence Act, 1872. The appellant-accused (A-1) was arraigned for the offence under Section 302 of the Penal Code, 1860 along with the appellants-accused (A-2 to A- 4) for the offence of murder of the same deceased with the aid of Section 34 B IPC. The trial court convicted A-1 and acquitted A-2 to A-4. But the High Court, while confirming the conviction of A-1, convicted A-2 to A-4 also on the ground that the trial court had the duty to peruse the case diary prepared as per Section 172 of the Code of Criminal Procedure, 1973 for satisfying itself whether PW-I had stated any particular fact during the interrogation. C Hence these appeals. According to the prosecution, A-1 caught hold of the deceased and stabbed him with a knife on his abdomen. When the deceased made a bid to escape from the scene, he was intercepted by all he four accused persons and they all inflicted blows on him. The deceased died on the spot itself. D Subsequently, A-1 barged into the courtroom of PW-2, Judicial Magistrate of I st Class, who recorded the confession of A-1. PW-I, the solitary eyewitness to the occurrence, reported the incident to his father, PW-I 0, soon after the occurrence, on the basis of which PW-10 lodged the FIR. However, PW-I in his statement under Section 16 I of the Code did not mention anything regarding the role played by A-2 to A-4. E Disposing of the appeals, the Court HELD : I.I. The omission in the statement under Section 161 of the Code of Criminal Procedure, 1973 regarding the role attributed to A-2 to A- 4 relates to a very material aspect and hence it amounted to contradiction. F When any part of such statement is used for contradicting the witness during cross-examination, the Public Prosecutor had the right to use any other part of the statement, during re-examination, for the purpose of explaining it. The said right of the Public Prosecutor is explicitly delineated in the last part of the proviso to Section 162(1) of the Code. G Tahsildar Singh v. State of UP., AIR (1959) SC 1012, relied on. 1.2. If a Public Prosecutor failed to get the contradiction explained as permitted by the last limb of the proviso to Section 162(1) of the Code, it is not permissible for the Court to invoke the powers under Section 172 of the H Code for explaining such contradiction. MAHABIR SINGH v. STATE OF HARY ANA 39 2.1. The discretion given to the court under Section 172 to use case A diaries is only for aiding the court to decide on a point. The court is forbidden from using,the entries of such diaries as evidence. What cannot be used as evidence against the accused cannot be used in any other manner against him. If the court uses the entries in a ·case diary for contradicting a police of
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