FAZLUR RAHMAN Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal by three persons Fazlur Eahman, Imanuddin, and Saidar Rahman, who have been convicted of the offence of dacoity under Section 395, Indian Penal Code. They were tried along with the six other persons who were charged with the same offence, but those others were found not guilty and were acquitted.

(2.) The case for the prosecution was that on 7-2-1945 a number of weavers were returning to their homes from a Hat where they had been selling certain handloom cloths during the day. The hour was about 9-30 P.M., and one of them prosecution witness No. 3, was carrying a hurricane lantern. At a lonely spot they were suddenly surrounded by a number of men who assaulted, them, and took away certain bundles of cloth which they were carrying, as also the money which they had obtained by the sale of their wares.

(3.) The First Information Report was lodged the next day at about 1 P.M., at a police station which is 12 miles distant from the village to which the weavers were proceeding. In the First Information it is definitely stated that none of the weavers had recognised any one amongst the dacoits. At the trial, however, evidence of identification was given, P.W. 3 identifying Fazlur Rahman and admitting that he was a person whom he knew fairly well. P.Ws. 5, 6 and 8 identified Imanuddin and P.Ws. 4, 5, 7 and 8 identified Saidar Rahman, as persons known to them. We are not here concerned with the evidence given against those of the accused persons who were acquitted. In the circumstances just referred to, the statements made by the witnesses to the police during investigation are of the utmost importance. The well-known provisions of Section 162, I Criminal P.C., afford to accused persons an opportunity of showing that the statements made by the witnesses at the trial are opposed to statements which the same witnesses actually made to the police at an earlier stage during investigation. The first proviso to Section 162(1), Criminal P.C., says that the Court shall, on the request of the accused, refer to the statements of prosecution witnesses made in an earlier enquiry or trial, when those statements have been reduced into writing, and that the accused is to be furnished with a copy thereof in order that any part of such statements if duly proved, may be used to contradict such witness in the manner provided by Section 145, Evidence Act. The language of Section 145, Evidence Act, is clear and unambiguous. The section says: A witness may be cross-examined as to previous statements made by him in writing...or reduced into writing...but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The words in italics, (which are mine) clearly show that the evidence of a witness at a trial may be shown to be inconsistent with the previous statements, and the method by which this may be done is by producing previous statements of the witness which have been reduced to writing and which are contradictory of the witness's evidence in Court. The whole foundation of this procedure is the principle that a witness who makes inconsistent statements is unreliable. If a Judge says to a jury that the previous statements of the witness are not necessarily true, and may possibly be false and leaves it at that, the object of the first proviso to Section 162, Criminal P.C., is largely defeated.