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(22) Mr. D. R. Sethi contends that we can act on the statemems made by these witnesses to the police with which they were confronted and hold that these clothes belong to Harish Kumar. He supports his contention by three unreported judgments of this Court by P. S. Safeer J" in Sat Paul v. The State, Criminal Appeal No. 151; 1970, decided on March 9, 1971(1), Major Tara Chand Rampal v. The State, Criminal Appeal No. 93 of 1972,(2), decided February 15, 1974, and Hazari Lal v. The State, Criminal Appeal No. 186 of 1972, decided on April 19, 1974, (3), in Sat Paul's(l) case (supra), the learned Judge, after referring to the provisions of section 145 of the Evidence Act, and section 161 of the Code of Criminal Procedure, 1898, observed that the statement recorded under section 161(3) of the Code of Criminal Procedure, 1898, could be used turn confronting the witness with his earlier version if he made a contradictory statement in Court and proceeded to hold : "THATcan be done in order to raise an argument later on as to which is the version which has in it a greater ring of truth. So long as the statement of a witness is admissible in evidence and I may observe that whatever is adduced from the witness within the terms of the proviso in section 162 of the Code of Criminal Procedure, is admissible in evidence, the witness's statement is evidence in the case. It is the entire deposition which has to be scrutinised in order to conclude as to what has been established in a particular case."

(23) In Hazari Lal's case (supra),(3), the learned Judge, after refecrring to his previous judgment in Major Tara Chand Rampal's (2) case regarding the history of section 162 of the Code of Criminal Procedure, 1898, went on to observe thus : "IT would be sufficient to observe that there is no postulation in the proviso that it may be utilized only to impeach the credit of the witness". In that case., after discussing the statements of the hostile witnesses, who had been confronted with their statements made to the police and who had denied making them, held that the portions of the earlier statements confronted to the witness "to the extent being contradictions became evidence within the proviso contained in secion 162".

(25) In Tahsildar Singh and another v. State of U.P., Subba Rao, J. (as he then was), speaking for the majority, after tracing the history of legislation of section 162, Criminal Procedure Code, proceeded to describe the object of the legislature thus : "ITis, 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 provision 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."

(27) Again, in Kanu Ambu Vish v. The State of Maharashtra, the same view was reiterated by observing: "where a witness is confronted by his previous statement and given an opportunity to explain, that part of the statement that is put to him does not constitute substantive evidence". Somewhat similar were the observations by the Supreme Court in Major Som Nath v. Union of [ndia and another, .

IT is thus well-settled that the object of the proviso to sub-section (1) of section 162, Criminal Procedure Code, is to allow the use of the statement recorded under section 161 for the purpose of only contradicting the witness and nothing else. The principle underlying this proviso is that a witness who makes inconsistent statements is not reliable. With all respects to the learned Single Judge, it is not correct to say that the duty of the Court is to find out if the statement made to the police is true and then to act on the same. It is only when a witness after being confronted with his earlier statement to the police, admits making that statement that a Court may act on the same if found to be truthful. The Court then acts on that statement not because it was made to the police but because the witness corrects himself afer being confronted and deposes in Court what he had already stated to the police. However, in case the witness after being confronted with his previous statement to the police, denies making such statements, then the latter statement cannot be used as substantive evidence. A reference to section 288 of the Code of Criminal Procedure will show that even a statement made by a witness on oath before a Court in the presence of the accused under Chapter xviii of the Code does not, on the witness being confronted with the same in terms of section 145 of the Evidence Act, automatically become substantive evidence. In my opinion, the judgments relied upon by Mr. Sethi do not lay down the correct law.