MUNINAJAPPA Vs. STATE OF MYSORE

JUDGEMENT

(1.) The petitioners are the accused in. C. C. No. 2038 of 1957 on the file or the First Class Magistrate, Bangalore. They are accused of an offence under Section 302, I. P, C. The case is at the stage of preliminary enquiry. In the course of the cross-examination of p. w. 2, his statement under Section 162, Criminal P. C., was marked as Exhibit D-3. Exhibit D-3 was read out to the witness. He was asked as to whether certain facts deposed to by Win in court are found in that statement. By this process the learned Advocate for the accused wanted to establish certain omission. During the re-examination, the Prosecutor wanted to explain the omissions in question with reference to a further statement made by the witness to the police during the investigation. This was objected to by the learned Counsel for the petitioners. The basis of his objection was that he had contradicted the witness with reference to a statement made by him to the Police on 15-9-1957 at 7-30 a. m. whereas re-examination referred to the statement made by the same witness to the police at about 3-30 p. m. According to his contention the Police could not make use of this statement as it was a different statement from the one which he had used for the purpose of contradiction. The learned Magistrate rejected this contention holding that the two statements can be construed as part of the same statement. The petitioners have come up in revision as against this order

(2.) At the very outset I would like to say that the course adopted by the learned counsel for the petitioners and permitted by the Court is wholly unwarranted by law. The accused could not have been permitted to mark the entire statement.

(3.) The two questions that arise for my consideration are: (1) Does an omission in a statement made and recorded under Section 162, Criminal P. C.. amount to a contradiction and could the same be used as such under the said section and (2) what is meant by 'statement' in Section 162, Criminal P. C., does it mean the entirety of facts stated by the witness to the investigating officer during the investigation or does each record constitute a separate statement?