He Who Alleges Contrary Things Is Not to Be Heard and Our Magisterial Courts

A man shall not be permitted to “blow hot and cold” with reference to the same transaction, or insist, at different times, on the truth of each of two conflicting allegations, according to the promptings of his private interest : — ‘Wood v. Dwarris’, (11 Ed. 493).  In order to amount to self-contradiction there must of course be a real inconsistency between the two assertions of the witness. It must induce the tribunal to discard one statement because the witness has also made another statement which cannot at the same time be true. Thus, it is not a mere difference in statements that suffices; nor yet is an absolute appositeness essential; it is an inconsistency that is required.  But as pointed out by Wigmore, such is the possible variety of statements that it is often difficult to determine where this inconsistency exists. But it must appear ‘prima facie’ before a witness can be impeached as guilty of self-contradiction. As a general principle it has to be understood that this inconsistency is to be determined not by individual words or phrases alone but by the whole impression or effect of what has been said or done. On a comparison of the two utterings are they in effect inconsistent? Do the two expressions appear to have been produced by inconsistent pleas?  A failure to assert a fact when it would have been natural to assert it, amounts in effect to an assertion of the non-existence of the fact. This is conceded as a general principle in evidence. But there may be explanations for the failure to assert the fact on the one occasion or the other. Illustrative examples are : Failure to mention a fact might be due to his not being asked on that point or asked for all relevant facts. Or, the omission might be due to the fact that the witness might on the one or the other occasion have been testifying under such circumstances that he was not called upon as a matter of duty or interest to state the whole truth as to the transaction. Or, it may be that his statement on the one or the other occasion might not have been fully recorded and by its not being read over to the deponent he might not have been able to correct the omissions or give explanations or bring it in conformity with what he said or intended to say. In other words, in all these much depends upon the subjective element viz., the individual circumstances and in all of them the underlying test is would it have been natural for the person to make the assertion in question; and secondly, in the case of self-contradiction based upon prior written depositions, whether a full and correct record has been made of what the witness stated and whether it was read over to him so that it was brought into conformity with what he really stated or intended to say.  These self-contradiction in so far as Magisterial Courts are concerned, fall under three heads viz.,  discrepancies; contradictions between the information embodied in Police Diaries recorded under S. 162, Cr. P. C. and subsequent depositions in Court; and contradictions between the statements recorded under S. 164, Cr. P. C. and subsequent depositions in Court. In regard to discrepancies, the following extracts from Field’s Law of Evidence in British India, 8th Edition, cover all the judicial principles which should be borne in mind :  “When accounts of a transaction come from the mouths of different witnesses, it is seldom that it is not possible to pick out apparent or real inconsistencies between them. On the contrary, a close and minute agreement induces the suspicion of confederacy and fraud.  If a person talks over the incidents of some startling accident or other abnormal occurrence to some persons who were also present there, he will find that he observed some things which did not attract the attention of some of his follow observers, while some of them have been matters which escaped his observation.  Angle of view at which each observer stands, the objects that more or less intervene, the number of surroundings and distracting circumstances, and the difference between the powers of observation and keenness of sight of different individuals, together with other causes will readily account for this circumstantial variety, while all are agreed about broad incidents of the substantial truth.  Experience tells us that a certain variety in detail indicates truth, while a close and minute agreement is significant of conspiracy and falsehood.  In a case of assault five witnesses described the incident and all detailed the names of the eleven accused in the same order. It may safely be said that, without concert, this could not possibly happen. It appeared that the Mukhtar obtained a copy of the complaint made some days previously and, in order to guard effectually against discrepancy, he had made each of the five witnesses commit it to memory.  Where several witnesses concur in their statement of a series of particular circumstances there can be only two conclusions — either the testimony is true or the coincidences are the result of concert and conspiracy. To determine which is the case, there are two valuable tests. First, are the witnesses independent and acting without concert? Second, are the coincidences natural, undesigned?  In case of omissions in the evidence, it will be important to see whether the omission to mention a particular fact arises from wilful suppression or from witness’s attention being rivetted upon some other facts, with describing which his mind has been wholly engrossed. If the fact be one which could not possibly have escaped his observation, supposing him to be a true witness, and if, on being indirectly questioned, he denies such knowledge, the supposition of inadvertence is scarcely possible, and a discrepancy is apparent.”  Therefore, too much stress should not be laid upon discrepancies without any attempts to appraise their effect and the prosecution evidence should not be rejected on immaterial discrepancies or probabilities and where illiterate villagers come forward to depose as to matters crowded into their memory in the course of a few moments, every little discrepancy should not be taken as proof of their mendacity and where there is evidence for the prosecution implicating the accused, he should not merely rely on discrepancies or exaggerations in the prosecution story but must lead evidence and that in fine there are discrepancies of truth as well as of falsehood and too minute attention to immaterial discrepancies often may lead to failure of justice.  In regard to contradictions between information recorded under S. 162, Cr. P. C. and subsequent depositions in Court and which forms the staple material for cross-examination in Magisterial Courts, three things have to he borne in mind viz., the circumstances under which these S. 162 statements are recorded; the limited extent to which they may be used for contradiction; and whether these statements can be used not only in regard to positive contradictions but also in regard to omissions. The inherent infirmities of the Police records maintained under S. 162, Cr. P. C. are well brought out in the following decisions :  Per Knox J., in — ‘Queen Empress v. Naziruddin’, 16 All 207 : “Such statements are recorded by police officers in the most haphazard manner. Officers conducting an investigation not unnaturally record what seems in their opinion material to the case at that stage and omit many matters equally material, and, it may be, of supreme importance as the case develops. Besides that, in most cases, they are not experts of what is and what is not evidence. The statements are recorded often hurriedly in the midst of a crowd and confusion, subject to frequent interruption and suggestions from by-standers; over and above all, they cannot be in any sense termed depositions, for they are not prepared in the way of a deposition; they are not read over to, nor are they signed by, the deponents. There is no guarantee that they do not contain much mere or much less than what the witness has said.”  Per Edgley J. in — ‘Emperor v. Ajit Kumar Ghosh’, AIR 1945 Cal 159 : 46 Cri LJ 692 : “The only writing available for use by the defence under proviso (1) to S. 162 is not even a writing which the witness has been allowed to sign. It is neither the writing of the witness himself nor one for which he can be held responsible as having signed it after perusal or after it had been read to him. It is a statement recorded by an investigating officer, not necessarily in the presence of the witness, which is supposed to represent what the witness said to the police officer but which may be an utter travesty of the real statement on account of mistakes and omissions which the witness has had no opportunity to check .... For instance, on referring to the entry in his diary the investigating officer may only be in a position to say ‘I find that I have recorded in my diary a few notes of what the witness said to me during the investigation, but I only made these notes with reference to some particular feature of the investigation, which I regarded as important at the time. I cannot now say whether I recorded his statement accurately or made an accurate summary thereof.’ Evidence of this nature would not prove the alleged statement at all nor would it be proper in such a case for the Judge to place on the record the diary entries relating to such a statement .....It is important that there should be some evidence on the record with regard to the system which was followed by the investigating officer, in recording the statements of witnesses under S. 161 of the Code. It would be useful to know what precautions, if any, were taken by the investigating, officer to secure the accuracy of the record, whether the diary was written in the presence of the witness concerned or whether any portions were read over to him, whether it was customary to record full statements or whether the S. I. merely noted a few points which he considered to be of importance with reference to the immediate investigation of the case.”  Per Horwill and Mockett JJ. in — ‘Guruva Vannan v. Emperor’, AIR 1944 Mad 385 : 46 Cri LJ 294 : “The police officer who conducted the investigation is one of those foolish officers who think the law requires of them that they should record ‘verbatim’ what every person says to them .... The Madras Police Standing Orders, whilst instructing the investigating police officer to record a statement of the circumstances ascertained, expressly states that the Police are under no obligation to record ‘verbatim’ the statements of persons examined. The police are not bound to record a detailed deposition.”  Horwill and Bell JJ. in — ‘Subba Reddi, In re’, AIR 1948 Mad 23 : 48 Cri LJ 973 : Per Bell J. : It is not the law that the Police officer must record individual statements under S. 161 of the Criminal Procedure Code, which specifically says that he ‘may’ and not that he ‘must’ reduce the statement of a witness into writing. Nothing is more natural than that he should make rough notes of information which later he would set out in proper form in the case diary for the information of his superior officers in whose hands after all lies the subsequent control of the matter.  Per Horwill J. : It does not seem that the new sub-s. (3) of section 161 of the Criminal Procedure Code was intended to make it incumbent upon the investigating officer to record a statement in greater detail than was the practice prior to the amendment. The new sub-section seems to hit at the practice of writing against the names of certain witnesses that they corroborate the statements of the early witness. Statements should be recorded where reasons of urgency do not preclude this course or unless the exigencies of the investigation make such recording undesirable.  Per Govindaraiachari and Mack JJ. in — ‘Subbaratnam, In re’, AIR 1949 Mad 663 : 50 Cri LJ 950 : Section 162 of the Criminal Procedure Code does not impose a statutory obligation on an. investigating officer to produce all his rough notes and jottings out of which he writes up his case dairy for the day. All that an accused is entitled to demand is that when a written record is kept of the statement of the witness to an investigating officer he shall be entitled to a copy of that record, and if the case diary contains, as it should, the substances recorded separately of the statement of each witness to the police officer, the latter is under no obligation to preserve or produce any other record, rough or otherwise of such a statement. It is only when. a police investigating officer makes a written record of a statement of a witness and is shown not to have incorporated it as a separate statement in his case diary, that he can be said to be guilty of a breach of a statutory obligation.  The limited purposes for which the statement, recorded under S. 162, Cr. P. C. can be used for contradicting witnesses are indicated in the section itself viz., that when a witness is called for the prosecution whose statement has been reduced into writing, the Court at the request of the accused after referring to such writing should direct that the accused be furnished with a copy thereof in order that any part of such statement may be used to contradict such witness in the manner provided by S. 145 of the Indian Evidence Act. This is subject to two limitations viz., the proviso where under, limited circumstances the Court can exclude portions from being furnished to the accused and where the statements fall within the provisions of S. 32(1) or S. 27 of the Indian Evidence Act.  Therefore, these statements recorded in the case diary under S. 162, Cr. P. C, cannot be made use of for other purposes which has been compendiously collected by Mr. Y. H. Rao in his valuable treatise on “The Law of Pre-trial Statements and Depositions” deserving of close study by all Magistrates, Policemen and lawyers. A prosecution witness cannot make use of his statement while giving evidence. A prosecution witness cannot be contradicted with his statement for the benefit of the prosecution in effect. Prosecution cannot contradict a hostile P. W. with, his statement recorded under S. 162, Cr. P. C. The statement cannot directly or indirectly be used to show that the story of the prosecution witnesses was to be found in the police statements. Where a witness who had been examined by the Police is called by the Court and not by the prosecution, his previous statement to the police cannot be used either by the prosecution or by the defence for any purpose. The Court cannot speculate upon the contents of these statements and base its conclusions thereon. It cannot draw adverse inference from failure of the defence to establish contradictions. But it can point out that no such detail was elicited in cross-examination to show that the witness’s particular story before court was a development after the stage of investigation and therefore stood condemned as self-contradictory. If a defence witness happens to have been examined by the Police during investigation, his statement to the police cannot be used to contradict him. Information given by an accused person recorded by the Police under S. 162, Cr. P. C. cannot be used by the Court for confrontation of the accused with the same. The statements cannot, certainly be made use of as substantive evidence or to show that the defence is improving its story at every stage or that the names of the accused were mentioned at an earlier stage. The Police officer cannot be cross-examined in the Sessions Court regarding the statements made by a witness who died before trial. The statement cannot be used to contradict a co-accused witness.  Subject to these two limitations viz., the value to be attached to statements recorded under S. 162, Cr. P. C. and the exclusive purpose for which it can be used viz., to contradict a P. W. whose statement had been reduced into writing, the evidence elicited has got to be assessed on the same principles as in the case of every other type of evidence viz., whether the contradictions are material and real disentitling a witness to be believed or whether they are apparent and trivial and do not discredit the evidence of the witness. In this connection there is no difficulty so far as positive contradictions are concerned viz., where a positive statement made by the witness before the Police is resiled from in Court like the illustration embodied in S. 236, Cr. P. C. e.g., A states before the Police that he saw B hit C with a club and before the Court A states on oath that B never hit C. This positive contradiction, unless cleared up by a reasonable explanation, would be fatal to the credibility to be attached to the testimony of the witness.  But in Magisterial Courts, however, the eliciting of the contradictions, which form the bulk of the day’s work, are contradictions by omissions. It is no doubt true that the juxtaposition of the two words ‘contradiction’ and ‘omission’ is most inappropriate. It has been trenchantly pointed out by Burn J. in — ‘Ponnuswamy Chetty v. Emperor’, AIR 1933 Mad 372 (2) : 34 Cri LJ 582 as follows : “Whether it is considered as a question of logic or of language ‘omission’ and ‘contradiction’ can never be identical. If a proposition is stated, any contradictory proposition must be a statement of some kind, whether positive or negative. To ‘contradict’ means to ‘speak against’ or in one word to ‘gainsay.’ It is absurd to say that you can contradict by keeping silence. Silence may be full of significance, but it is not ‘diction’ and therefore it cannot be ‘contradiction’ .... The same conclusion follows from a consideration of S. 145, Evidence Act. If it is intended to contradict the witness by the writing, his attention must be called to those parts of the writing which are to be used to contradict him. It would be sheer misuse of words to say that you are contradicting a witness by the writing, when what you really want to do is to contradict him by pointing out omissions from the writing.....A witness cannot be confronted with the unwritten record of an unmade statement..... It is impossible to state a case in which an omission amounts to a contradiction..... Section 162 can only be used in order to show that the witness in the box is contradicting something he had said before .... It is not permissible to use such statements in order to show ‘development’ of the prosecution case : it is only permissible to use them to prove contradictions ___” The acceptance of this definition would completely shut out all possibility of showing that the witness had been developing his story from stage to stage. Therefore, in the subsequent decision in — ‘Guruva Vannan v. Emperor’, AIR 1944 Mad 385 : 46 Cri LJ 294 the test laid down was that an omission amounts to a contradiction if the omission from the case diary of a statement is of such importance that the witness would almost certainly have made it and the police officer would almost .certainly have recorded it, had it been made. It is for the Court to decide therefore in each case whether a particular omission amounts in substance to a contradiction or not. If it amounts to a contradiction, the Court will allow cross-examination on the omission; if it does not the Court will not.  In arriving at a decision as to whether a particular omission amounts to a contradiction or not, two considerations are involved as pointed out by Mr. Y. H. Rao viz., a subjective and an objective element. The subjective element depends on the test laid down by Wigmore and already pointed out viz., would it have been natural for the person to make the assertion in question. The objective element is the infirmities attaching to the preparation of the Police records under S. 162, Cr. P. C. set out above. The learned author Mr. Y. H. Rao has correctly summarized this aspect as follows :  “The question is both subjective and objective, depending upon the nature of the fact itself as well as on the nature of the record from which it is an omission. Since the nature of the record varies from case to case, the test based on the nature and importance of the fact alone would not be sufficient. It is only after an alleged omission survives the complete test that cross-examination on the omission is permissible and then only does the question of proof of the omission amounting to a contradiction arise. Allowing, of course, in jury trials, a fair amount of latitude in cross-examination on omissions, for the jury to consider ths effect of the alleged omissions, a Court will ordinarily be failing in its duty if it does not disallow cross-examination on omissions not amounting to contradictions; may, it will be positively contributing to waste of public time sp much deplored in judicial pronouncements, if it allows an undesirable and excruciatingly painful cross-examination on immaterial omissions, hesitating to take a decision thereon.”  The final topic under this head is as regards the discrepancies between statements recorded under S. 164, Cr. P. C., and depositions in Court. The observations which I have made regarding the discrepancies between S. 162 statements and the evidence given in Court apply with necessary changes here also. In other words, the contradictions might be due to both subjective and objective elements, apart from the limited uses to which these statements can be put to for eliciting contradictions. These 164 statements, as has been repeatedly laid down, can never be used as substantive evidence of the facts stated. But it can be used to support or challenge the evidence given in Court by the person who made the statement. In fact the more familiar use to which these statements are put to is for the purpose of cross-examining the person who made it, in order to show that the evidence of the witness given in Court is false. But if the witness has been won over by the defence and he has completely gone behind his statement recorded under S. 164, his evidence must be entirely ignored. It is the only legal method by which the statement made by the witness at an earlier stage in the investigation can afterwards be proved at the trial by the prosecution and it does no doubt help to deter witnesses from changing their stories subsequently and to this extent its effect is salutory as pointed out in — ‘Parmanand v. Emperor’, AIR 1940 Nag 340 : 42 Cri LJ 17 and — ‘Parameshar Din v. Emperor’, AIR 1941 Oudh 517 : 42 Cri LJ 758. It is the only legal method of getting over the mischief of S. 162. These statements further are made shortly after the date of the occurrence and long before the evidence of the witnesses is recorded in court. Therefore from the point of view of the accused it is thoroughly desirable that these statements should be recorded as adequately and as carefully as possible. Otherwise, when the contradictions consist only of omissions, the very inadequacy of the statements recorded would militate against contradictions being established. To cite an example, where a witness mentioned the name of the accused in the trial nearly four months after the occurrence but had failed to mention his name in his statement under S. 164 recorded four days after the occurrence, the failure to mention the name of the accused in his statement to the Magistrate under S. 164 robbed his subsequent statement against the accused at the trial of all value : — ‘Sahdeo Gosain v. Emperor’, AIR 1944 FC 38 : 46 Cri LJ 317.  That is why the earlier the misconception that the same precautions which are prescribed for recording the confessions of accused persons should also be observed while recording the statements of witnesses and therefore it is necessary to exclude the Police from the Court premises is removed the better. It has been rightly pointed out in — ‘Pullamma v. Emperor’, 1932 M Cr C 67 that though the Magistrates have the power, if they think it necessary to ensure the voluntary character of the witness’s statements and have reasons to apprehend that the Police are exercising an influence over the witnesses which they ought not to do, to exclude the Police or in fact any others from the Court during the examination under S. 164, the proper procedure is to allow the Police who investigated the case and who know the information which the witnesses are likely to give to be present with the case-diary and instruct the Asst. Public Prosecutor to render all help to the Magistrate in order to elicit all the facts which the witnesses are able to speak in connection with the case under consideration. In such cases it will not be difficult to discount the evidence of the witnesses in Court, if their statements under S. 164 contain any omissions and are therefore not fully corroborative of the evidence given in Court. That is why the Madras Criminal Rules of Practice is now being suitably amended to give effect to the observations in — ‘Pullamma v. Emperor’, 1932 M Cr C 67. These 164 statements for completeness of information, it may be pointed out, need not be confined only to the recording of statements of witnesses produced by the Police. On the other hand there may be instances where the Police may not desire to have the record of statement of a witness for some reason or other and the Magistrate is moved on this behalf by the accused or his pleader. It will be open to the Magistrate to record statements under S. 164 in the said circumstances, the only difference being that ordinarily when a Police Officer requests the Magistrate to record the statements of witnesses on oath under S. 164, such a requests will not be refused by the “Magistrate — this has been made clear in the Madras Criminal Rules of Practice — but when a private party seeks to invoke the powers of the Magistrate Under S. 164, the Magistrate has got very wide discretion in acting or refusing to act : — ‘C. W. Casse v. King’, AIR 1948 Mad 489 : 50 Cri LJ 28.  In order to enable the accused to effectively cross-examine the witnesses with regard to statements recorded under S. 164, he is given the right to obtain copies of such statements. Under S. 80 of the Indian Evidence Act, statements recorded under S. 164, Cr. P. C. are admissible without being proved by the Magistrate who recorded the said statements. If the certificate of the Magistrate endorsed on the deposition sheet states that the deposition was read out to the witness and the witness admitted it to be correct the court is bound to accept this as correct under S. 80, Indian Evidence Act until it is proved to be untrue : — ‘Bhagawan Singh v. State of Punjab (I)’, AIR 1952 SC 214 : 1952 Cri LJ 1131.  But in appreciating the evidentiary value of the statements recorded under section 164, we must steer clear of two extremes viz., to attach undue weight to these statements on the ground that they have been recorded shortly after the commission of the offence, because they are after all ex parte statements not subjected to the test of cross-examination and made when the witness would be prone to support uncritically the party producing him, or reject them as of no value on the ground that it is used & intended for binding down the witness to his statement. The Madras High Court has always steered clear of these two extremes & it has never accepted the stock argument that if the statement of a witness is recorded under section 164 the evidence of the witness should be discarded. If this is accepted as an universal truth, there will be no scope for action under section 164, Cr. P. C. If the statement of a witness is previously recorded under section 164, it leads to the inference that there was a time when the Police thought that the witness may change; but if the witness sticks to the statement made by him throughout, the mere fact that the statement was previously recorded under section 164 will not be sufficient to discard it. The Madras High Court has at the same time insisted upon caution in accepting statements recorded under section 164 and this will be evident from the fact that this High Court has been insisting upon a careful examination of all the circumstances of the case before coming to the conclusion whether the contradictions between the 164 statements and the depositions in Court should be the subject-matter of a complaint for perjury under section 476, Cr. P. C. Though there is no duty cast upon the Court in launching prosecutions of this nature to come to the conclusion that either the statement made under section 164 is false or the statement made in Court is false, as can be seen from illustration (b) to section 236, Cr. P. C, reproduced above, it has always considered as one of the circumstances to be taken into consideration before launching a prosecution whether the effect of such a prosecution would be to compel the witness to stick to a statement which is judicially found at the trial to be wholly false. This precaution is a very natural one because when there are materials to show that if the witness had stuck to his 164 statement in Court he would have been giving evidence shown to be false, it would not be expedient in the interests of justice to prosecute such persons.  Al Carthill, I. C. S., in Company of Cain, p. 257 writes : “Sometimes perjury is due to fear of punishment for making contradictory statements when the witness has committed himself for reasons which we need not discuss here to one version under section 162, Criminal Procedure Code, even though it is false. The effect is as if there were created by a statute a substantive criminal offence of tergiversation. In fact the accused person tried under this charge is tried not for perjury but for incoherency. This section; must be carefully applied. Otherwise, these prosecutions may very well increase the crime of per-jury and make the man who had once committed perjury stick to his story through thick and thin. That is why Pandrang Rao, J., in Criminal Appeals Nos. 557 and 558 of 1933 and Venkatasubba Rao, J., in Criminal Appeal No. 590 of 1931 have held that though every act of perjury is an offence, it does not follow that on that account every perjurer should be charged.”

Author Name: Hon’ble Justice P. N. Ramaswami