GANAKANTA DAS Vs. STATE OF ASSAM

JUDGEMENT

(1.) I had the advantage of going through with profit of the judgment and order of my learned brother Y. I. Singh, J. and I agree that the present appeal has merit and the impugned order of conviction and sentence has to be set aside. However, with respect I am unable to agree that the contradictions of the statements of the witnesses before the investigating officer and in the witness box has to be discarded in view of the reasons given in para 12 of the main judgment. I record my reasons for the above disagreement as follows : - -

(2.) MY learned brother in discarding the above contradictions has placed reliance in Tahsildar Singh v. State of U. P., AIR 1959 SC 1012 and Pangi Jogi v. State of Orissa, AIR 1965 Ori 205.

(3.) READING Section 162, Cr.P.C., 1973 and Section 145 of the Evidence Act it is clear that a witness can be confronted with his earlier statement made to the investigating officer for bringing out contradictions. A Division Bench of this Court had occasion to consider this matter in the State v. Md. Misir Ali, AIR 1963 Assam 151, and the procedure for bringing nut the contradiction is quoted below (Para '.. .If it is intended by an accused to contradict the evidence given by a prosecution witness at the trial, with a statement made by him before the police during the investigation, the correct thing to do is to draw the attention of the witness to that part of the contradictory statement, which he made before the police, and question him whether he did in fact make that statement. If the witness admits having made the particular statement to the police, that admission will go into evidence and will be recorded as part of the evidence of the witness and can be relied on by the accused as establishing the contradiction if, on the other hand, the witness denies having made such a statement before the police, the particular portion of the statement recorded under Section 162, Criminal Procedure Code should be provisionally marked for identification, and when the investigating officer who had actually recorded the statement in question, comes into the witness box, he should be questioned as to whether that particular statement had been made to him during the investigation, by the particular witness, and obviously after refreshing his memory from the Police Case Diary the investigating officer would make his answer in the affirmative. The answer of the investigating officer would prove the statement which is then exhibited in the case and will go into evidence, and may, thereafter, be relied on by the accused as a contradiction. This is the only correct procedure to be followed, which would be in conformity with Section 145 of the Evidence Act.'