V.Bhargava, J. - (1.) During the hearing of this appeal it was pointed out by learned counsel for the appellants that the appellants had been seriously prejudiced as the learned Sessions Judge during the trial had disallowed a certain question being put to one of the Important witnesses named Satya Narain.
(2.) According to the prosecution, the murder of Pahlad took place in a ghar while he was sleeping on a cot, and only other two persons who were in the ghar at the time of the murder were Sardar Lal and Satya Narain who were also sleeping on two different cots a few paces away from the cot of Pahlad. Sardar Lal and Satya Narain are two of the witnesses on whose statements the prosecution relies to prove the case against the appellants. The murder is said to have been committed by Rudder appellant by firing two shots at Pahlad. Sardar Lal in his evidence stated that he woke up on hearing the sound of a shot being fired and thereafter saw the appellants running away which implies that he did not actually see any of the two shots being fired by Rudder appellant. The other witness, Satya Narain, who is a young boy aged 13 years also stated that he woke up on the sound of firing of a pistol and saw the three accused who were near Pahlad's cot. He went on to add that he saw the accused Rudder firing a second shot with a pistol. In this connection learned counsel for the accused, who was appearing in the trial Court, put the following question to this witness: Q. "Why did you not tell the Investigation Officer that you had seen the second shot being fired." There is note by the learned Sessions Judge that this question was disallowed as it referred merely to an omission. It appears that the learned Sessions Judge took the view that this omission In the statement of witness Satya Narain made to the Investigating Officer under Section 161, Cr.P.C., did not amount to a contradiction and consequently the witness could not be cross-examined as to the statement made by him to the investigating officer, in view of the provisions of Section 162, Cr.P.C. In our opinion, the decision of the learned Sessions Judge on this question was quite wrong. The question whether a statement recorded by the Investigation Officer under Section 161, Cr.P.C. can be used for the purpose of challenging the deposition made by a witness in Court on the basis that he omitted to make that statement when examined by the Investigating Officer, came up for consideration in Subedar v. State, Criminal Appeal No. 77 of 1952 (All) (A). In that case there was a difference of opinion between two learned Judges of this Court and the case was thereupon referred for the opinion of a third Judge. At that stage it came up before one of us and it was held as follows: "When examined in Court, Manbhawan stated that he went to the spot on hearing the uproar and heard Nattha inciting Subedar to give a blow with the spade to Bhajan Lal, whereupon Subedar gave a blow on Bhajan Lal's head and Bhajan Lal fell down. Thereafter Mitthu rushed to the rescue of Bhajan Lal and wielded his lathi. He then proceeded to give other details of the incident. When examined, by the police during the investigation, he did not include these details about the beginning of the incident. He began by stating that when he reached the scene of occurrence on hearing the alarm, he saw Bhajan Lal already lying on the ground while Mitthu was present there. In the statement before the police there was, therefore, omission to mention that he had seen the beginning of the fight-It is true that all omissions do not amount to contradictions and the statements given before the police cannot be used in evidence at all for any purpose except for the purpose of bringing out a contradiction. There are, however, certain omissions which amount to contradictions and have been treated as such by this Court as well as other Courts in this country. Those are omissions relating to facts which are expected to be included in the statement before the police by a person who is giving a narrative of what he saw, on the ground that they relate to important features of the incident about which the deposition is made. In a case of this nature, where Manbhawan was stating what he saw, he would certainly have stated to the police also the incitement by Nattha to Subedar to give a blow to Bhajan Lal and the actual infliction of that blow by Subedar if he had really witnessed that part of the incident. He could not have begun his statement to the police by saying that he saw Bhajan Lal lying on the ground unless it was true that, at the time when he reached the place of the incident, Bhajan Lal had already been injured and had fallen down. The omission in this respect Is, therefore, an omission of a very material part of the Incident which amounts to a contradiction so that the statement before the police under Section 162 of the Code of Criminal Procedure was admissible in evidence and could be relied upon to bring out that contradiction during the trial so as to show that the statement made by Manbhawan in Court was not reliable, in this respect."
(3.) In our opinion the view expressed in the ease which has been reproduced above lays down the correct principle of law and that view should be applied to the present case also. In the present case it is clear that the question which was disallowed should have been permitted by the learned Sessions Judge. Satya Narain in his deposition in Court purported to be an eye-witness of the act by which the murder of Pahlad was committed, by stating that he saw the accused Rudder firing a second shot from the pistol. It appears that the defence case was that at the first stage when Satya Narain was examined by the Investigating Officer, he did not make such a statement. All he stated was that he was awakened by the firing of the shot and then he saw these three appellants standing near the cot of Pahlad. The omission was on a very material point If this deposition in Court is believed It Would mean that he is an eye-witness of the commission of the act of murder, whereas if it is disbelieved, it would mean that he did not actually witness the act by which the murder was committed. Such an omission would certainly amount to a contradiction. Had Satya Narain actually seen the second shot being fired it must be expected that he would have mentioned this fact in his statement given to the Investigating Officer. The learned Sessions Judge was, therefore, wrong in disallowing the question which was put to the witness.;