BISHEN DATT Vs. KING-EMPEROR

JUDGEMENT

(1.) In this case, which is an appeal by two men who have been condemned to death under Section 302, I.P.C., a serious question arises as to the admissibility, for the purpose of proving facts against the accused, of certain statements, which were undoubtedly admissible for the purpose of impeaching the credit of some of the witnesses who were called. The matter is of importance and not free from difficulty, and there appears to be no decisive authority in this High Court. It is absolutely necessary for us to decide the point as a point of law, because if, as is the case, we are of opinion that these statements ought not to be used as evidence of the facts contained in them against the accused, we shall have to decide the appeal upon the other evidence in the case, the learned Sessions Judge having taken these statements into account in deciding to convict the appellants.

(2.) The matter arises in this way. A witness was called at Sessions by the prosecution for the purpose of proving a particular fact against one of the accused which could be used to corroborate a confession of his co-accused. The witness said that he knew nothing about it at all. He was then asked if he had not made a statement under Section 164, Criminal P.C. He undoubtedly had. Before the case was initiated in the Court of the Magistrate, who committed it for trial, the witness had been put on oath before a Magistrate and had made a statement of what he alleged to be his knowledge of the relevant facts, containing certain definite allegations against the accused. He admitted at Sessions having made the statement-indeed he could hardly do otherwise-as it was made on oath and taken down in writing. He then alleged that it was false and that he had been tutored to make it by the police. The question is whether these previous statements, and the evidence which they contain against the accused, can be used against the accused.

(3.) The two relevant sections appear to be Secs.145 and 155, Evidence Act. Section 145 permits a witness to be cross-examined as to a previous statement made by him which has been reduced to writing, and to be contradicted by such writing which can be proved for the purpose of contradicting him. Section 155 enables his credit to be impeached in a manner therein provided by proof (to quote Sub-section 3) of former statements inconsistent with any part of his evidence which is liable to be contradicted.