KHARAD VALLABH SAVAJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) . * * * *

(2.) . In the instant case, learned defence Advocate while cross-examining the witnesses have put various questions with a view to bring out either contradictions or omissions. Section 162 of the Criminal Procedure Code has been added with an Explanation, in view of the reported decision of Honourable Supreme Court in the case of Tahsildar Singh v. State of U.P., reported in AIR 1959 SC 1012, which reads as under : Explanation 1- An omission to state a fact or circumstances in the statements referred to in sub-sec. (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.

(3.) . The procedure has been indicated in the aforesaid decision as to how the same is to be proved. Learned defence Counsel Mr. Shah as well as learned Additional Public Prosecutor, after scanning the questions put in the cross examination with regard to omissions or contradictions with the police statement, submitted that in the instant case all the three, i.e., learned Advocate, Public Prosecutor and the learned Sessions Judge, have not discharged their functions properly. Some omissions are put in the cross-examination, though witnesses have stated in their statement before the police and there is in fact no omission yet questions are put to a witness as if he has not stated and even the investigating officer answered in the manner so as to suggest that, that is an omission. Neither the Public Prosecutor nor the Presiding Officer took any care. Even Police Officer surprisingly answered without reading the same. To the complainant, in para 4, a question was put that he has not stated before the police that "at that time as stones were being thrown on our house by Vallabh Savaji, we went to scold him". The witness has stated this before the police and yet learned Judge has permitted this question. The complaint which was recorded soon after the incident wherein he has not described the incident in detail, but in his further statement, witness has in fact stated and with regard to those statements, even questions are put to the effect that he has not stated in the complaint but neither the learned Judge nor the learned Public Prosecutor has taken care to see that whether such statement is made in the statement or not. This should have been noted in the evidence. The manner of narrating the incident is slightly different in the statement before the police than the manner in which the incident is narrated before the Court below. But, if both the statements are read together, there is no contradiction or omission. Only manner of narrating is different or there is change in the words but having the same meaning. Though weapons have been referred to with particular accused, a question is put to witness. To some witnesses, questions are put that they have not referred to in their police statement that injury was not caused on particular part of the body though that is stated. Learned Counsel Mr. Shah fairly stated that in such a situation where the witnesses have described the weapons but not part of the body where the blow was inflicted, then in that case what is exactly omitted should have been highlighted. At places we find that merely because different words are used though it carries the same meaning, questions with intention to bring out omissions or contradictions are permitted by the learned Sessions Judge and Public Prosecutor has also not bothered to see that real affairs as it appears is placed on record. Learned Advocate Mr. Shah noted down with regard to all contradictions and omissions and fairly stated that really speaking, most of the contradictions and omissions are neither contradictions nor omissions, but merely language used in the police statement and before the Court is different but the meaning thereof is the same. This has happened with respect to almost all the witnesses. It is the duty of the learned Sessions Judge to compare and find out contradictions or omissions. It is equally the duty of the Public Prosecutor in charge of conducting the matter to point out to the learned Sessions Judge that this is not an omission or contradiction. Only if the learned Sessions Judge finds that the statement of the witness in the Court materially defers from that previously made, then it is his duty to examine as to the discrepancy.