ISMAIL BIJALBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Before going to discuss the evidence of the different eye-witnesses we must point out that in this particular case as in several other cases which we have recently come across we have found that the learned trial Judge has allowed questions to be put in the cross-examination of the different prosecution witnesses allowing omissions from the statement before the police to be brought on the record. The witness in each case stated a particular version before the Court and some parts of that version were not to be found in the police statement and all such omissions from the police statement as compared with the deposition before the Court were allowed to be brought on the record in the cross-examination of the witness and were also allowed to be proved through the testimony of the Police Officer who recorded the police statement of the witness concerned.

(2.) In Tahsildar Singh v. State of U. P. A.I.R. 1959 S.C. 1012 the Supreme Court considered the scope of sec. 162 Cr. P.C. and also considered under what circumstances omissions from the statement before the police can be allowed to be brought on the record of the case. After examining the entire legal position Subba Rao J. (as he then was) who delivered the judgment on behalf of himself B. P. Sinha Kapur and Sarkar JJ. summarized the legal position in para 26 at page 1026 of the report and observed as follows:-

(3.) Mr. Mehta appearing on behalf of the appellants relied on two subsequent decisions of the Supreme Court and sought to argue that the decision in Tahsildar Singh's case (supra) was subsequently modified by the Supreme Court. Those decisions are Nagindra Bala v. Sunil Chandra A.I.R. 1560 S.C. 706 and Sunder Singh v. State of Punjab A.I.R. 1962 S.C. 1211. In Nagindra Balas case what happened was that one Col. Mitra the father of Nirmal the particular witness in that case died as a result of the injuries that he had received in the course of an incident. In his police statement this particular witness Nirmal had stated that Sunil the accused in the case had given blows to Col. Mitra. He had not stated that one of blows fell on the left temporal region of Col. Mitra. The post mortem examination showed that the death occurred because of the fracture of the left temporal bone of the victim Col. Mitra. It was in that context that S. K. Das and A. K. Sarkar JJ. considered the decision in Tahsildar Singh's case (supra) and in para 27 at page 715 of the report S. K. Das J. has observed as follows: