Chandra Shekhar Rai Vs The State of Bihar On 19 June, 2013 PDF

Chandra Shekhar Rai vs The State Of Bihar on 19 June, 2013
Patna High Court - Orders

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.26260 of 2011
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Chandra Shekhar Rai, S/O Ram Lagan Rai, R/O Village-Sheikhpura, P.S.- Raja Pakar,
Distt.-Vaishali .... .... Petitioner Versus
1. The State of Bihar
2. Rabindra Kumar Rai, son of Bisheswar Rai, R/O Village-Sheikhpura, P.S. Raja Pakar, DistrictVaishali.
. . . .
. . . .
O p p o s i t e
P a r t y
====================================================== Appearance :
For the Petitioner
For O.P.No.2
For the State
: Mr.
Mr.
: Mr.
: Mr.
Sudhir Singh,
Raghawanand, Advocates.
Surendra Kishore Thakur, Advocate.
Maya Nand Jha, A.P.P.
====================================================== CORAM:
HONOURABLE MR. JUSTICE SHIVAJI PANDEY CAV ORDER 5 19.6.2013 Heard learned counsel
for the petitioner, learned counsel for the State and opposite party no.2.
2. In this case the petitioner has challenged the order dated 18.6.2011 passed by the learned District
and Sessions Judge, Vaishali at Hajipur in connection with Sessions Trial No.423 of 2007 by which
the trial court has rejected the prayer of defence to draw the attention of the Investigating Officer on
the statements of the witnesses recorded in the case diary.
3. Filtering the unnecessary facts, on the basis of Fardbeyan, the police registered the case against
the accused persons under Sections 302, 341, 323, 452 and 379/34 of the Indian Penal Code on the
statement of Rabindra Kumar Rai the case has been registered as Raja Pakar P.S. Case No.61 of
2003. In the First Information Report allegation has been made about causing fire arm injuries to
the victim ultimately led to his death in the Hospital. Motive behind the occurrence as the victim
refused to succumb the pressure of the accused persons to pay the extortion money (Rangdari).
4. The police investigated the case and during investigation recorded the statement of Parwati Devi,
Indrashan Devi, Misrilal Rai, Asarfi Rai and Umesh Rai. According to the petitioner their statements
are not compatible with the prosecution case. The case was investigated by Sanjay Kumar Singh, the
Investigating Officer (P.W.9). During examination-in-chief certain documents part of the case diary
were proved which were marked as Exhibits 5, 6 and 7. During cross-examination the defence
lawyer drew the attention of the Investigating Officer to the statements of Parwati Devi, Indrashan
Devi, Mishrilal Rai, Asarfi Rai and Umesh Rai whose statement was recorded in the case diary but
Indian Kanoon - http://indiankanoon.org/doc/138605581/
the trial court refused to allow this question to be asked from the Investigating Officer.
5. The court below assigned the reason for refusal to allow this question to be asked to the
Investigating officer as Parwati Devi, Indrashan Devi, Mishrilal Rai, Asarfi Rai and Umesh Rai
though examined during investigation having not been examined in the court from the side of the
prosecution during trial.
6. Learned counsel for the petitioner has raised the grievance that recording of their statement is a
fact in issue covered under Section 11 of the Evidence Act. Sections 151 and 152 of the Evidence Act
specifically provides the area of prohibition for putting the question to the prosecution witnesses
and the court below except those exception specifically mentioned was not justified in prohibiting to
ask this question to the Investigating Officer about the recording of statement of the witnesses
mentioned therein. In support of his contention he has relied on two judgments (Fatnaya Lal Khan
and others Vs. Emperor) A.I.R. 1942 Lahorh 88, and (Mohiunddin Khan and others Vs. The King
Emperor) A.I.R. 1924 Patna 829 and claimed that the trial court committed an error in not allowing
the question to be asked from the Investigating Officer with regard to the statement of the witnesses
recorded in the case diary.
7. Learned counsel for the State vehemently opposed the argument advanced by learned counsel for
the petitioner and submitted that the statement recorded by the police having no evidentiary value
cannot be called as fact in issue. The statement recorded in the case diary by the police cannot be
used by either side for the purposes of proving or disproving the charge against the accused persons
but can be pressed in service for attracting contradiction to the statement of witnesses who later
deposed before the trial court. Any witnesses who was not examined during the trial cannot be an
issue for drawing the attention of contradiction with regard to the statement of the persons recorded
in the case diary.
8. Now the question emerges as to whether the trial court was justified in refusing to allow defence
to ask or draw the attention of the Investigating Officer with regard to the statement recorded in the
case diary of some of the persons who were examined by the police but not chosen by the
prosecution during trial.
9. For coming to the right conclusion it will be necessary and desirable to consider different
provisions of Evidence Act as well as certain provisions of the Code of Criminal Procedure.
10. Section 161 of the Code of Criminal Procedure (hereinafter referred to as the Code) provides the
examination of witnesses by the police which entitles the Investigating Officer to examine orally any
person supposed to be acquainted with the facts and circumstances of the case and the statement
may be reduced into writing but the obligation has been attached to the Investigating Officer to
record the statement correctly and truly. Section 162 of the Code provides that no statements made
by any person to a Police Officer in the course of an investigation if reduced in writing be signed by
the person making the statement and the statement or any part of the statement recorded in the
case diary be used for any purpose at enquiry or trial in respect of any offence under investigation.
Section 172 of the Code provides that every Police Officer making investigation shall day to day enter
the proceeding of the investigation in the diary and the criminal court may send the police diaries of
a case under inquiry or trial to proper court if any and the court may use such diaries, not as
evidence in the case except an aid in such inquiry or trial. It further provides that neither the
accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see
them merely because they are referred to by the Court but rider has been provided if they are used
by the police officer who made them to refresh his memory, or if the Court uses them for the
purpose of contradicting such police officer, the accused will have right for contradiction as per
provisions of Section 161 of the Code or Section 145 of the Evidence Act. For better appreciation and
consideration for the issue involved it will be appropriate to quote the following provisions of the
Code:
"Section 161: Examination of witnesses by police.- (1) Any police officer making an
investigation under this Chapter, or any police officer not below such rank as the
State Government may, by general or special order, prescribe in this behalf, acting on
the requisition of such officer, may examine orally any person supposed to be
acquainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer truly all questions relating to such case put
to him by such officer, other than questions the answers to which would have a
tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The
police officer may reduce into writing any statement made to him in the course of an
examination under this section; and if he does no, he shall make a separate and true
record of the statement of each such person whose statement he records."
162: Statements to police not be signed:- Use of statements in evidence.(1) No statement made by any person to a Police Officer in the course of an
investigation under this Chapter, shall, if reduced to writing, be signed by the person
making it; nor shall any such statement or any record thereof, whether in a police
diary or otherwise, or any part of such statement or record, be used for any purpose,
save as hereinafter provided, at any inquiry or trial in respect of any offence under
investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial
whose statement has been reduced into writing as aforesaid, any part of his
statement, if duly proved, may be used by the accused, and with the permission of the
Court, by the prosecution, to contradict such witness in the manner provided by
section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such
statement is so used, any part thereof may also be used in the re-examination of such
witness, but for the purpose only of explaining any matter referred to in his
cross-examination. (2) Nothing in his section shall be deemed to apply to any
statement falling within the provisions of clause (1) of Section 32 of the Indian
Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act.
172. Diary of proceedings in investigation.- (1) Every police officer making an

investigation under this Chapter shall day by day enter his proceedings in the
investigation in a diary, setting forth the time at which the information reached, him,
the time at which he began and closed his investigation, the place or places visited by
him, and a statement of the circumstances ascertained through his investigation.
(2) Any Criminal Court may send for the police diaries of a case under inquiry or trial
in such Court, and may use such diaries, not as evidence in the case, but to aid it in
such inquiry or trial. (3) Neither the accused nor his agents shall be entitled to call for
such diaries, nor shall he or they be entitled to see them merely because they are
referred to by the Court; but, if they are used by the police officer who made them to
refresh his memory, or if the Court uses them for the purpose of contradicting such
police officer, the provisions of section 161 or section 145, as the case may be, of the
Indian Evidence Act, 1872 (1 of 1872), shall apply."
11. As per the learned counsel for the petitioner it has been submitted that the statement made
before the police is a fact in issue and the defence has every right to bring to the notice of the
Investigating Officer, during deposition. As to whether the evidence recorded by the police of a
witness will be fact in issue as per Section 11 of the Evidence Act. For finding proper answer to the
aforesaid question it will be relevant to examined the aforesaid section which is as follows:"11. When facts not otherwise relevant become relevant.- Facts not otherwise relevant
are relevant- (1) if they are inconsistent with any fact in issue or relevant fact;
(2) if by themselves or in connection with other facts they make the existence or
non-existence of any fact in issue or relevant fact highly probable or improbable."
12. Section 11 of the Evidence Act says that the facts not otherwise relevant are relevant if they are
inconsistent with any fact in issue or relevant fact. Sub Clause (2) provides that if by themselves or
in connection with other facts they make the existence or non-existence of any fact in issue or
relevant fact highly probable or improbable. It deals with a factual events not the evidence recorded
by the police. The evidence of witness tends to prove the particular event. The fact in issue may be
proved or disproved by the properly constituted evidence. As this section deals with the situational
fact shows the proof of one fact tending to prove the another fact. If a particular fact is proved
though not relevant but the possibility of happening of other fact will be relevant. So the earlier fact
though not relevant to the fact but existence of that fact makes another fact probable or improbable
would be relevant for the proof of another event. This section does not deal with evidentiary value of
statement recorded by the police nor it deals with questions to be asked to witness during
cross-examination and as such this Court is of the view that Section 11 of the Evidence Act does not
deal with the issue involved in the present case.
13. Section 145 of the Evidence Act will be proper to deal with the present issue as it provides that a
witness may be cross-examined as to previous statements made by him in writing or reduced in
writing, and relevant to matters in question, without such writing being shown to him or being
proved; but, in a situation when it was 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. Section 151 of the Evidence Act states that the Court may forbid any questions or
inquiries which it regards as indecent or scandalous, although such questions or inquiries may have
some bearing on the questions before the Court, unless they relate to facts in issue, or to matters
necessary to be known in order to determine whether or not the facts in issue existed. Section 152 of
the Evidence Act also provides that the Court shall forbid any question which appears to it to be
intended to insult or annoy, or which, though proper in itself, appears to the Court needlessly
offensive in form. Section 155 of the Evidence Act deals with impeaching the credit of witnesses
through the process mentioned therein and one of situation has been mentioned about proof of
inconsistent statement made earlier.
14. Argument has been advanced that the two sections namely sections 151 and 152 can be pressed in
service prohibiting any question to be put to the witnesses during cross-examination otherwise the
Evidence Act does not provide for the court to prohibit the defence to put any question during
cross-examination.
15. The aforesaid two sections deals with prohibition of a particular question when the questions are
related to the personal to witnesses completely meant to indecent or scandalous intended to insult
or annoy. But these sections cannot be pressed in service dealing with every situational fact as
Section 136 of the Evidence Act provides that when either party propose to give evidence of a fact
the Judge may ask the party proposing to give evidence in what manner the alleged fact, if proved,
would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would
be relevant, and not otherwise. The second part provides that if the fact proposed to be proved is
admissible only upon proof of some other fact, such last mentioned fact must be proved before
evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact,
and the Court is satisfied with such undertaking. The third part of this section provides that if the
relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in
his discretion, either permit evidence of the first fact to be given before the second fact is proved, or
require evidence to be given of the second fact before evidence is given of the fist fact. On analysis of
Section 136 of the Evidence Act it appears that it is the Judge who control the proceeding of the
Court and would allow those evidence to come on record either in examination-in-chief or crossexamination unless he satisfied the evidences which is intended to be brought on record are relevant
and must be admissible in law.
16. The High Courts and the Honble Supreme Court nearer to present issue has decided on different
occasions. It will be relevant to consider the judgment of Fatnaya Lal Khan (supra). In that case two
persons were killed in connection with a girl who was earlier married to one person and later on she
her own volition had gone along with other person. There Investigating Officer was examined.
During trial the Investigating Officer, Sub Inspector was asked whether he had made any note at the
time in the police diary with regard to the presence of blood-stains whereupon he replied, that he
could not say whether he made any such note or not when he was asked to look to the case diary but
was not prepared to consult the diary. Subsequently the Sub Inspector was unable to answer a
question on a similar point, but at later occasion he was prepared to look to what he had written in
his diary. In that situation the Lahore Court has held that a witness is under an obligation to disclose
the whole truth to the best of his ability; this obligation is, if anything, heavier when the witness is a
police officer whose duty it is to act as an officer or of public justice. The Court further held that so
far as the statements of witnesses are concerned, the question may be no longer one of more than
academic interest in view of the amended provisions of Section 162 of the Code; but held that a diary
is record of steps taken by the police in course of investigation may contain confidential matters
which could not in the public interest be disclosed and for which privilege might be claimed, but no
such question can arise when it is merely a question of the presence of blood-stains or injuries,
which are matters of common knowledge in the case and it is only desired to secure the best possible
evidence on the point. The Court has further held that accused persons are not entitled to call for
these diaries unless a police officer uses them to refresh his memory, or the Court uses them for the
purpose of contradicting a witness. It will be relevant to quote following from the judgment:
".....it was ever intended that information on any such point should be deliberately
withheld if it should happen to be in any way necessary for the decision of the case. It
is true that the accused is not entitled to call for these diaries unless a police officer
uses them to refresh his memory, or the Court uses them for the purpose of
contradicting a witness; but if it was anticipated that a police officer would ordinarily
seek to fulfill his duty as witness by consulting any memorandum for the purpose of
refreshing his memory on any material point, then the section would surely have
been framed on this assumption and the fact that it might be necessary to require a
witness to refresh his memory would not have been regarded as contrary to what was
intended by the section as a whole. In other words it seems to us impossible to hold
that it was even intended to leave it to a witness to decide whether or not he should
disclose a material fact which might turn the scale in deciding whether an accused
person was guilty or innocent, when he is in a position to clear up a point by
reference to any notes taken by him during the course of investigation. Should a
police officer refuse to assist the Court in this way, it seems to us that he would not
only be failing in his duty both as a witness and as an officer of public justice, but
would also be liable to exactly the same penalty as any other witness who refuses to
give evidence which is within his knowledge and is not affected by any particular
claim of privilege....."
17. The Court also considered the judgment of Calcutta High Court where it has been held that since
an accused was not entitled to call for the police diary though he was entitled to see them if a witness
uses them for the purposes of refreshing the memory, it was apparently considered un-desirable
that an attempt should be made to obtain access to their contents by the indirect means of asking a
witness to refresh his memory by reference to them. In the said judgment the Court has also
considered this Courts judgment in the case of Mohiuddin Khan (supra) where it was held that the
Court in such circumstance should require a witness to refresh his memory when such refreshment
seems necessary. In that case the factual position was that in the First Information Report two
persons were not mentioned rather ten other persons alleged to had gone to the field with two
Pathans whose names were not known. The question was raised as to whether these two petitioners
of that case were identified specifically while the witness had proved to have been member of an
unlawful assembly. The witness gave ambiguous or evasive answer. When the police Inspector was
on dock he was questioned whether the witnesses had named these two petitioners to him and he
said he could not remember.When asked to refresh his memory from his diary but he refused to do
so and the Magistrate did not compel him to look in to the diary for the purposes of answering the
question as he ought to have done. This Court had held that it was open to the Judicial
Commissioner to call Sub Inspector before him in order that he may be examined on the question of
identification and he was required to refresh his memory where such refreshment seem necessary.
18. Here is not the situation. In this case the Court has refused to allow cross examine the
Investigating Officer with regard to the statement of witnesses recorded in the case diary but was
not examined by the prosecution during the trial. So the present case is not very appropriate to deal
with the issue which is raised in the present case.
19. The Madras High Court In re Syamo Maha Patro , reported 137 Ind. Cas.9. In this case the
question was raised whether the statement of accused recorded by the police was admissible as a
evidence on the ground that Section 162 of the Code refers only statement of witness recorded by
police not statement of the accused. While dealing with the situation the court has held that the
statement of accused or of witnesses by police would both lie in prohibitory area within the
provision of Section 162 and held that the statement made by the accused persons to the police in
the course of investigation of the case could not be used at the trial for any purpose.
20. The Honble Supreme Court in the case of Tahsildar Singh and another Vs. State of Uttar
Pradesh, reported in A.I.R. 1959 SC 1012 considered the scope and para-meter and amendments
affected in Section 162 of the Code. By Act of 10 of 1872 similar to section 162 of the Code was
section 119 where it has dealt with the statement recorded by the Police Officer during investigation
and its evidentiary value and later the Act was amended and the section 162 of the Code was made
equivalent to Section 119 but in its different form. Time to time this Section has been amended by
the legislature. The Honble Supreme Court was considering the scope and para-meter of section 162
of the Code while this Section was amended by the Act 2 of 1945 thereby sub-section (3) was added
restoring the Act which was prevalent during 1923.
21. In this case the Court has considered the intention of legislature of excluding the statement of
witnesses made before the police during investigation for being made use during trial for any
purpose. But made an exception by inserting proviso impeaching the credit of the witnesses in the
manner provided under the Evidence Act showing contradiction to earlier statement. The Court has
held that the statement in writing made by a witness before a Police Officer in course of
investigation can be used to contradict his statement during trial , the statement not reduced to
writing by the Police Officer cannot be used for contradiction. It will be relevant to quote paragraph
no.11, 16, 17 and 26 of the aforesaid judgment:
"11.It is, therefore, seen that the object of the legislature throughout has been to
exclude the statement of a witness made before the police during the investigation
from being made use of at the trial for any purpose, and the amendments made from
time to time were only intended to make clear the said object and to dispel the cloud
cast on such intention. The Act of 1898 for the first time introduced an exception
enabling the said statement reduced to writing to be used for impeaching the credit of
the witness in the manner provided by the Evidence Act. As the phraseology of the
exception lent scope to defeat the purpose of the legislature, by the Amendment Act
of 1923, the section was redrafted defining the limits of the exception with precision
so as to confine it only to contradict the witness in the manner provided under
section 145 of the Evidence Act. If one could guess the intention of the legislature in
framing the section in the manner it did in 1923, it would be apparent that it was to
protect the accused against the user of the statements of witnesses made before the
police during investigation at the trial presumably on the assumption that the said
statements were not made under circumstances inspiring confidence. Both the
section and the proviso intended to serve primarily the same purpose i. e., the
interest of the accused.
16.The object of the main section as the history of its legislation shows and the
decided cases indicate is to impose a general bar against the use of statement made
before the police and the enacting clause in clear terms says that no statement made
by any person to a police officer or any record thereof, or any part of such statement
or record, be used for any purpose. The words are clear and unambiguous. The
proviso engrafts an exception on the general prohibition and that is, the said
statement in writing may be used to contradict a witness in the manner provided by
S. 145 of the Evidence Act. We have already noticed from the history of the section
that the enacting clause was mainly intended to protect the interests of accused.......
17.At the same time, it being the earliest record of the statement of a witness soon
after the incident, any contradiction found therein would be of immense help to an
accused to discredit the testimony of a witness making the statement. The Section
was, therefore, conceived in an attempt to find a happy 'via media', namely, while it
enacts an absolute bar against the statement made before a police-officer being used
for any purpose whatsoever, it enables the accused to rely upon it for a limited
purpose of contradicting a witness in the manner provided by S. 145 of the Evidence
Act by drawing his attention to parts of the statement intended for contradiction. It
cannot be used for corroboration of a prosecution or a defence witness or even a
Court witness. Nor can it be used for contradicting a defence or a Court witness.
Shortly stated, there is a general bar against its use subject to a limited exception in
the interest of the accused, and the exception cannot obviously be used to cross the
bar.
26. From the foregoing discussion the following propositions emerge: (1) A statement
in writing made by a witness before a police officer in the course of investigation can
be used only to contradict his statement in the witness box and for no other purpose;
(2) statements not reduced to writing by the police officer cannot be used for
contradiction; (3) though a particular statement is not expressly recorded, a
statement that can be deemed to be part of that expressly recorded can be used for
contradiction, not because it is an omission strictly so-called but because it is deemed

to form part of the recorded statement; (4) such a fiction is permissible by
construction only in the following three cases: (i) when a recital is necessarily implied
from the recital or recitals found in the statement: illustration: in the recorded
statement before the police the witness states that he saw A stabbing B at a particular
point of time, but in the witness box he says that he saw A and C stabbing B at the
same point of time; in the statement before the police the word "only" can be implied
i. e., the witness saw A only stabbing B; (ii) a negative aspect of a positive recital in a
statement: illustration: in the recorded statement before the police the witness says
that a dark man stabbed B, but in the witness box he says that a fair man stabbed B;
the earlier statement must be deemed to contain the recital not only that the culprit
was a dark complexioned man but also that he was not of fair complexion; and (iii)
when the statement before the police and that before the Court cannot stand
together: illustration: the witness says in the recorded statement before the police
that A after stabbing B ran away by a northern lane, but in the Court he says that
immediately after stabbing he ran away towards the southern lane; as he could not
have run away immediately after the stabbing i. e., at the same point of time, towards
the northern lane as well as towards the southern lane, if one statement is true, the
other must necessarily be false."
22. The Honble Supreme Court in the case of Malkiat Singh and others Vs. State of Punjab, reported
in (1991) 4 SCC 341 has considered the value of evidence recorded by the police during investigation
in the case diary and scope of cross-examination by the defence in context of recorded statement
therein. The Court has considered at what situation the defence will have a liberty to put the
question giving a situational fact in paragraph 11 which is as follows:
"11. It is manifest from its bare reading without subjecting to detailed and critical
analysis that the case diary is only a record of day to day investigation of the
investigating officer to ascertain the statement of circumstances ascertained through
the investigation. Under sub- section (2) the court is entitled at the trial or enquiry to
use the diary not as evidence in the case, but as aid to it in the inquiry or trial. Neither
the accused, nor his agent, by operation of sub- section (3), shall be entitled to call for
the diary, nor shall he be entitled to use it as evidence merely because the court
referred to it. Only right given thereunder is that if the police officer who made the
entries in the diary uses it to refresh his memory or if the court uses it for the purpose
of contradiction such witness, by operation of Section 161 of the Code and Section 145
of the Evidence Act, it shall be used for the purpose of contradicting the witness, i.e.
Investigation Officer or to explain it in re-examination by the prosecution, with
permission of the court. It is, therefore, clear that unless the investigating officer or
the court uses it either to refresh the memory or contradicting the investigating
officer as previous statement under Section 161 that too after drawing his attention
thereto as is enjoined under Section 145 of the Evidence Act, the entries cannot be
used by the accused as evidence. Neither P.W.5 nor P.W.6, nor the court used the
case diary. Therefore, the free use thereof for contradicting the prosecution evidence
is obviously illegal and it is inadmissible in evidence. Thereby the defence cannot

place reliance thereon. But even if we were to consider the same as admissible that
part of the evidence does not impinge upon the prosecution evidence."
23. The Court has considered the similar question in the judgment of the Honble Supreme Court in
the case of Mahabir Singh Vs. State of Haryana, reported in (2001) 7 SCC 148 and has reiterated the
same view as above in paragraph 14 of the judgment which is as follows:
"A reading of the said sub-sections makes the position clear that the discretion given
to the court to use such diaries is only for aiding the court to decide on a point. It is
made abundantly clear in sub-section (2) itself that the court is forbidden from using
the entries of such diaries as evidence. What cannot be used as evidence against the
accused cannot be used in any other manner against him. If the Court uses the entries
in a case diary for contradicting a police officer it should be done only in the manner
provided in section 145 of the Evidence Act i.e. by giving the author of the statement
an opportunity to explain the contradiction, after his attention is called to that part of
the statement which is indented to be so used for contradiction. In other words, the
power conferred on the Court for perusal of the diary under Section 172 of the Code is
not intended for explaining a contradiction which the defence has winched to the fore
through the channel permitted by law. The interdict contained in section 162 of the
Code, debars the court from using the power under Section 172 of the Code for the
purpose of explaining the contradiction."
24. In the recent judgment the Honble Supreme Court in the case of R. Shaji Vs. State of Kerala,
reported in 2013 (2) PLJR 145 SC has held that evidence given in a court under oath has great
sanctity, that is why the same is called substantive evidence. The statements under Section 161 of the
Code can be used for the purposes of contradiction whereas statement recorded under section 164 of
the Code can be used for both corroboration and contradictory. It will be relevant to quote
paragraph nos. 14 and 16 of the aforesaid Judgment:
"14. Evidence given in a court under oath has great sanctity, which is why the same is
called substantive evidence. Statements under Section 161 Cr.P.C. can be used only
for the purpose of contradiction and statements under Section 164 Cr.P.C. can be
used for both corroboration and contradiction. In a case where the Magistrate has to
perform the duty of recording a statement under Section 164 Cr.P.C., he is under an
obligation to elicit all information which the witness wishes to disclose, as a witness
who may be an illiterate, rustic villager may not be aware of the purpose for which he
has been brought, and what he must disclose in his statements under Section 164
Cr.P.C.. Hence, the Magistrate should ask the witness explanatory questions and
obtain all possible information in relation to the said case.
16. Section 157 of the Evidence Act makes it clear that a statement recorded under
Section 164 Cr.P.C., can be relied upon for the purpose of corroborating statements
made by witnesses in the Committal Court or even to contradict the same. As the
10
defence had no opportunity to cross-examine the witnesses whose statements are

recorded under Section 164 Cr. P.C., such statements cannot be treated as
substantive evidence."
25. On analysis of the aforesaid judgments the following principle emerges that the statement
recorded by the police during the investigation can not be used as a evidence either at the trial or
enquiry neither by the accused nor his agent or prosecution. If the Police Officer who made entries
in the diary uses to refresh his memory or if the court uses it for the purpose of contradiction such
witness, by operation of section 161 of the Code and Section 145 of the evidence Act, it may be used
from the side of accused for the purpose of showing contradiction to the witness, including
Investigating Officer with a liberty to explain it in re- examination by the prosecution, with
permission of the court. So it is clear statement recorded by the police in case diary cannot be used
as an evidence except for showing contradiction drawing attention to his earlier statement.
26. In the present case though the Investigating Officer during investigation recorded the statement
of Parwati Devi, Indrashan Devi, Mishrilal Rai, Asarfi Rai and Umesh Rai but during trial the
prosecution did not opt to examine the aforesaid witnesses. It is well settled principle of law that it is
the prosecution to decide as to who are the best witness to prove the prosecution case. Neither the
court nor the defence can ask the prosecution to bring the particular witness to prove the
prosecution case. But is not the end of the matter. The Court in exercise of power under Section 311
of the Code either on the application of the prosecution or on the application of the defence or suo
motu for the ends of justice call any person as witness. In the present case those witnesses were not
examined by the prosecution in the court during trial and as such there being no any occasion of
contradiction to the earlier statement of the aforesaid witnesses examined by the police during
investigation. As it has been held herein- above, the statement recorded in the case diary of the
aforesaid persons having no evidentiary value, can neither be used by the prosecution nor by the
accused save and except by way of a contradiction which is not available in the present case in view
of non-examination of the witnesses. When the evidence of the aforesaid witnesses cannot be used
as evidence the accused cannot be allowed to make those statements as substantive evidence by the
process of drawing attention of Investigating Officer circumventing the process of law. It is well
known principle of law, a thing which cannot be done directly, cannot be allowed to be done
indirectly based on the principle of quondo aliquid prohibitur, prohibitur et omne per anod
devenitur and illad (what ever is prohibited by law to be done, cannot be legally be effected by an
indirect and circuitous contriavance) .
27. In this view of the matter, this Court is of the view that when the statement of those persons have
no evidentiary value being part of case diary in view of the fact that they were not examined during
the trial question of contradiction does not arise, the court below has rightly refused to allow the
defence to draw the attention of the Investigating Officer to the statement of the aforesaid persons
recorded in the case diary. Accordingly this petition fails and it is dismissed.
Vinay/-A.F.R.
(Shivaji Pandey, J)
11

Chandra Shekhar Rai Vs The State of Bihar On 19 June, 2013 PDF

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Chandra Shekhar Rai vs The State Of Bihar on 19 June, 2013

Patna High Court - Orders