- (1.) Leave granted. Heard learned counsel for the parties.
(2.) During the course of examination of a witness, the public prosecutor wanted to confront the witness with his previous statement. The said previous statement was subsequent to filing of the charge-sheet. On that ground the public prosecutor was not permitted to confront the witness with the said previous statement. Hence these appeals.
(3.) Learned counsel for the appellant submits that even in respect of a post charge-sheet statement, Section 145 of the Indian Evidence Act applies and a witness can be confronted with such statement. Learned counsel relies upon the judgment delivered by a Four-Judge Bench of this Court in Tara Singh v. The State, AIR 1951 SC 441 wherein it was observed: "I see no reason why Section 145, Evidence Act, should be excluded when Section 288 states that the previous statements are to be "subject to the provisions of the Indian Evidence Act." Section 145 falls fairly and squarely within the plain meaning of these words. More than that. This is a fair and proper provision and is in accord with the sense of fairplay to which Courts are accustomed. Even the learned Judges who take the first view consider for the most part that though it is not obligatory to confront a witness with his former statement when Section 288 is resorted to, it is always desirable that should be done if only for the reason that an omission to do so weakens the value of the testimony. I am of opinion that the matter is deeper than that, and giving effect to the plain meaning of the words "subject to the provisions of the Indian Evidence Act" as they stand, I hold that the evidence in the Committal Court cannot be used in the sessions Court unless the witness is confronted with his previous statement as required by Section 145 Evidence Act. Of course, the witness can be cross-examined about the previous statement and that cross-examination can be used to destroy his testimony in the Sessions Court. If that serves the purpose of the prosecution, then nothing more is required, but if the prosecution wishes to go further and use the previous testimony to the contrary as substantive evidence, then it must in my opinion, confront the witness with those parts of it which are to be used for the purpose of contradicting him. Then only can the matter be brought in as substantive evidence under Section 289. As two of the eye-witnesses were not confronted in the manner required by Section 145, their statements will have to be ruled out, and if that is done, the material on which the conviction is based is considerably weakened. ;