LexTAHSILDAR SINGH AND ANOTHER versus THE STATE OF UTTAR PRADESH
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(2) S.C.R. SUPREME COURT REPORTS 875 TAHSILDAR SINGH AND ANOTHER v. THE STATE O:F UTTAR PHADESH (B. P. SINHA, JAFER IMAM, J. L. KAPUR, A. K. SARKAR, K. SuBBA RAo and M. HrnAYATULLAH, JJ.) Criminal Trial-Police Statements-Use of--Omission, when amounts to contradiction-Code of Criminal Procedure, I898 (V of I898), s. I62-Indian Evidence Act, I872 (I of I872), s. I45· A music performance attended by a large number of persons including two police informers Bankey and Asa Ram. was going on on a platform in front of the house of one Ram Saroop. At that time there was a full moon and the light of a gas lamp and se- veral lanterns. The informers had placed their guns on a cot close to the platform and one Bharat Singh was sitting on that cot. The accused along with 15 or 20 persons suddenly arrived armed with fire arms to kill the informers and stood behind a well on the southern side, from where they shouted that no one should run away and advanced firing shots. Two persons were killed on the spot. Bharat Singh was hit and he ran northwards pursued by the culprits and was also shot dead. The culprits turned over the dead bodies and on seeing Bharat Singh's face they exclaimed that Asa Ram informer had been killed. They then passed in front of Ram Saroop's house and disappeared. While going they carried away Bankey's gun from the cot. The appellants and seven others were sent up for trial for this occur- rence. At the trial the defence alleged that prosecution had developed its case. The police statements of the eye witness did not mention the facts regarding the scrutiny of the dead bodies and the presence of the gas lantern, and the defence coun- sel put the following two questions with respect to these omis- sions to the first eye witness produced:- 1. "Did you state to the Investigating Officer that the gang rolled the dead bodies of Nathi, Saktu and Bharat Singh and scrutinised them and did you tell him that the face of Asa Ram resembled with that of the deceased Bharat Singh?" 2. "Did you state to the Investigating Officer about the presence of the gas lantern ?" The Sessions Judge disallowed the questions and on account of this order similar questions were not put to the other eye wit- nesses. The Sessions Judge convicted the appellants under s. 302 Indian Penal Code and sentenced them to death. The appellants appealed to the High Court and made an application alleging that the Sessions Judge had not allowed the defence counsel to put omissions amounting to material contradictions to I959 May 5. 876 SUPREME COURT REPORTS [1959] Supp· I959 Tahsildar Singh & Another the eye witnesses and prayed that the eye witnesses be summon- ed so that the questions disallowed may be put to them. Though the High Court held that the omissions amounted to contradictions and that the Sessions Judge had wrongly dis- allowed cross~examination \Vith respect thereto, it found that even after ignoring these t\VO circumstances there \Vere other facts which showed that the culprits had come close to the eye witnesses and that they had unmistaken opportunity of identify- ing the appellants in the light of the full moon and the lanterns. The High Court accordingly dismissed the application for sum- moning the eye witnesses holding that no prejudice had been caused to the appellants by the disallowance of the cross-exami- nation in respect of omissions ;,ind also dismissed the appeals and confirmed the convictions and sentences of the appellants. v. The State of Vilar Pradesh Held, (Per SINHA, KAPUR, SARKAR and SuBBA RAO, JJ.) that the omissions did not amount to contradictions and that the Sessions Judge was right in disallowing cross-examination in respect thereof. A statement to the police could be used under s. 162 of the Code only for the purpose of contradicting a state- ment in the witness box under the second part of s. 1, Evidence Act, but it could not be used for the purpose of cross-examining the witness under the first part of s. 145· A statement made to the police but not reduced to writing, could not be used for any pur- pose, not even for contradiction. It \Vas incorrect to say that all omissions in regard to important features of the incident which were expected to be included in the statement made bef6re the police, should be treated as contradictions. An omission in the police statement could amount to a statement and be used as a contradiction only whe
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