Document Fragment View

Matching Fragments

(4) Another point raised by Mr. Shah was that this witness towards the end of his deposition has admitted that his police statement was read over to him during the recess time, and when his evidence was recorded after recess on that very day by the learned Sessions Judge such evidence, according to him, would not only become inadmissible by reason of being hit by the provisions of Section 162 of the Criminal Procedure Code, but at any rate no value whatever can be attached by the Court to the same. In support of that proposition he invited a reference to an unreported judgment delivered on 22-11-1963 in Criminal Appeal No. 543 of 1962 (Guj) by a Division Bench of this Court where such a question had come to be considered. In that case, one eye-witness Ladhn Jivraj had admitted before the Court in cross-examination that on the morning of the day on which he was examined before the Sessions Court, one Head Constable Jillubha had read over his complaint and his statement before the police. A point was raised in that appeal that the evidence of such a witness was not admissible in law, and even if it was, very little value could be attached to his evidence in the case. While considering that aspect of law, Divan J., speaking for the Court, upheld that contention after referring to Section 162 of the Criminal Procedure Code, and agreed with the principle laid down in two cases- one of Zahiruddin v. Emperor, 49 Bom LR 521 = (AIR 1947 PC 75) and another unreported judgment of the Bombay High Court in Criminal Appeal No. 480 of 1952, delivered by Vyas, J., as he then was, on September 29, 1953 (Bom) speaking for the Court. The point has considerable importance and it affects the evidence of witnesses given in criminal cases before different Courts. Section 162 provides that "no statement made by any person to a police officer in the courts of an investigation under this Chapter shall, if reduced into writing be signed by the person making it; nor shall any 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. Broadly speaking, it prohibits signing of a statement by the person ..... it, and no use of such a statement arises in this case. If further prohibits the use of any statement recorded by the police in any inquiry or trial, and the question is whether it contemplates forbidding a person to refresh his memory be reading any such statement, before he gave evidence in Court. In other words, whether it can be said to be a use made of a statement by the person making in the trial, so as to render his entire evidence inadmissible an did not whether it loses its evidentiary value in any manner. Since the decision derives its force from the Privy Council case, we would refer to it first in 49 Bom LR 521 = (AIR 1947 PC 75) which was a trap-case a witness to the search was one Mr. Roy, a magistrate and his statement was recorded by the police. It was signed by him in spite of a prohibition contained in Section 162 of the Criminal Procedure Code. Then while giving evidence in Court he refreshed his memory by actually looking into that statement and in that it was urged that section 162 of the Criminal Procedure Code was contravened inasmuch it was signed by him, and secondly, he had actually made use of it in a trial while giving evidence before the Court, and that ,therefore, his evidence was inadmissible in law- it being hit by Section 162 of the Criminal Procedure Code. Their Lordships of the Privy Council took the view that as to first prohibition, that if the contravention consists in signing of a statement made in writing to the police, the evidence of the witness who signed it does not become inadmissible as there are no words either in the section or elsewhere, to the statute which express or imply such a consequence they further observed that :