Decided on December 20,1963



B.J.DIVAN, J.B.MEHTA - (1.) It is no doubt true that these discrepancies and divergences between the evidence given by Vaikunthlal in Court and his first information report do appear on record. However the attention of Vaikunthlal was not drawn to any of these discrepancies or divergences or contradictions at the time when he was giving evidence before the trial Court. Therefore it becomes necessary to examine as to what is the correct legal position regarding the use to be made of the first information report under such circumstances.
(2.) It is well settled law that the first information report recorded under sec. 154 Cr. P. C. by an officer in charge of a Police Station is not substantive evidence but is a previous statement in writing of the maker of that statement and can be used to corroborate or contradict the maker of that first information report. Section 145 of the Indian evidence Act provides that a witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matters in question without such writing being shown to him or being proved 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. In the instant case we may emphasize once again that the attention of Vaikunthlal was not drawn to those parts of the first information report which are sought to be used for the purpose of contradicting Vaikunthlals testimony in Court. In the case of Bal Gangadhar Tilak v. Shriniwas Pandit XLII Indian Appeals 135 the Judicial Committee of the Privy Council considered the effect of the provisions of sec. 145 of the Indian Evidence Act. There what happened was that the High Court had considered the effect of certain documents which were brought on record as substantive evidence and the High Court disbelieved the oral testimony of the witnesses in the light of those documents on record. Lord Show of Dunfermline delivering the judgment of the Privy Council observed at page 146 of the report as follows:- "A further mischance in point of procedure must now be mentioned. As already stated the testimony of the plaintiffs witnesses is not contradicted orally and is internally a consistent body of evidence. But various minutes and documents are the subject of minute analysis observation and comment by the learned judges of the High Court with a view to rebutting it. Their Lordships think It right to observe that in view of the serious nature of the verdict of the High Court they have considered it within their province themselves to peruse the documents. Having done so they are of the opinion that taken together they completely confirm the case made in the witness-box and that there is no ground in fact for the conclusion that they either contradict the testimony or cast any reasonable doubt upon it. But they must also record their dissent from the view that the use made of these documents in this case was Justified by law. On general principles it would appear to be sound that if a witness is under cross-examination on oath he should be given the opportunity if documents are to be used against him to tender his explanation and to clear up the particular point of ambiguity or dispute. This is a general salutary and intelligible rule and where a witnesss reputation and character are at stake the duty of enforcing this rule would appear to be singularly clear. Fortunately the law of India pronounces no uncertain sound upon the same matter. Then the provisions of sec. 145 of the Indian Evidence Act are set out and the judgment proceeds further as follows:- Their Lordships have observed with regret and with surprise that the general principle and the specific statutory provisions have not been followed. The verdict of the High Court is an inferential verdict-none the less sweeping on that account-but an inferential verdict actually of perjury.
(3.) In the case of Awadh Singh v. Emperor A. I. R. 1947 Patna 23 a Division Bench of the Patna High Court considered the effect of an inconsistency between the first information report and the evidence at the trial and it was held by the Division Bench as follows:- "The lack of any cross-examination of the prosecution witnesses as to a fact within their knowledge which the defence seek to establish is properly a matter of comment and inference but there is no obligation on the defence by crossexamination to fill in a lacuna in the case for the prosecution". When there is an inconsistency between the fard-bayan attached to the first information report made and signed by the complainant and his evidence given at the trial it is a matter which the prosecution witnesses should be asked to explain in examination-in-chief and no great weight can be attached to the failure of the defence to cross-examine the complainant on the point. The relevant passage in this connection is at page 25 para 5; but it does not appear from the report that the decision of the Privy Council in Bal Gangadhar Tilaks case (supra) was cited before the learned Judges of the Patna High Court and in view of the authoritative pronouncement of the Privy Council it is not possible for us to accept the view expressed by the Division Bench of the Patna High Court in Awadh Singhs case.;

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