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11. There are, on the other hand, other circumstances established by the prosecution to link Surjya with the commission of the offences under sections 302/201, IPC. PW-15, Investigating Officer, however, has stated that on 24.12.1992 he recorded the statement under section 161, Cr.PC. of Smti Jyoti Deb, Jagabandhu Das (PW-11), Sadhan Das (PW-10) and Madhab Das (PW-12) and on 25.12.1992 he interrogated the accused Surjya who stated before him that he would be able to discover the cut head of deceased Jiban and he recorded the said statement in the CD and also in the GD. Then he took the accused Surjya and accused Gostha to Katakhali to recover the cut head of Jiban as per the statement of Surjya, and at 6.50 AM on 25.12.1992 at Katakhali on his calls the villagers, namely, Sukhen Saha, Santi Das, Santi Debbarma, Shyama Charan Debbarma and many others arrived in the paddy land of Shanti Debburma. He has further stated that as per the instruction of accused Surjya and as led by him he together with the villagers and accused Surjya arrived in the paddy land of Shanti Debburma wherefrom Surjya recovered in presence of the aforesaid persons the cut head of Jiban. PW-15 has also stated that near the cut head the clothings, namely, one red colour stripe shirt and one white shirt with blood stains were found. He then prepared the inquest report in respect of the cut head of Jiban and arranged for taking snaps of the cut head by the photographer. His signature in the inquest report in respect of cut head has been marked Ext.P-1/2. Sukhen Saha who was also present at the time of recovery of cut head of the deceased Jiban has been examined as PW-1 and he has stated that the accused Surjya recovered the cut head of deceased Jiban from the 'Lunga' of Shanti Debburma and the cut head was covered by two shirts. He has further stated that inquest report was prepared before him by the police officer and his signature in the inquest report has been marked Ext.P-1. He has also stated that the police seized two shirts, one belonged to deceased Jiban and about the other shirt he could not say to whom it belonged. He signed the seizure list and his signature has been marked Ext.P-2. He identified the two shirts marked Exts-MO-I and MO-H, Shanti Kumar Deb Burma who was also present at the time of recovery of cut head of deceased Jiban has been examined as PW-2. He has stated that in presence of the police officer the accused Surjya recovered the cut head of deceased Jiban which was covered by cloths. He identified the shirts which were recovered from the place where the cut head was recovered and he has stated that the cut head was covered by the shirt. Shanti Das who was also present at the time of recovery of cut head of deceased Jiban has also been examined as PW-3 and he has stated that in his presence the accused Surjya recovered the cut head of the deceased Jiban which was covered by some cloths and the accused Surjya removed the cloths from the cut head and then he saw that it was the cut head of Jiban. He has also signed the inquest report and his signature has been marked Ext.P-1/1 and he has also signed the seizure list and his signature has been marked Ext.P-2/1 and he identified Ext.MO-II. PWs-1,2 and 3 however have stated that the said recovery of cut head of deceased Jiban took place on 21.12.1992 at about 6.30 AM, but the Investigating Officer. FW-15, has stated that the recovery took place on 25.12.1992. Since PWs-1,2 and 3 have put their signatures in the inquest report relating to recovery of cut head of the deceased Jiban on 25.12.1992, the actual date of recovery, of the cut head was 25.12.1992 and not 21.12.1992, and in my opinion this discrepancy with regard to date of recovery of the cut head of the deceased in the evidence of PWs. 1, 2 and 3 is not material.

It will be clear from the aforesaid portion of the statement of PW-11 in his cross-examination that when he was asked as to whether he told the police that Jiban went that evening to settle up a dispute relating to wooden file as called by accused Surjya, he affirmed that he had told the police that Jiban had gone that evening to settle up a dispute in connection with wooden file as called for the accused Surjya, and he did not admit that he did not say all these to the police. His attention however was drawn to his statement under section 161, Cr.PC. and the learned trial Judge has thereafter recorded that it was found that there was no such statement. For these reasons, DN Choudhury, J. took the view that PW-11 cannot be relied on. When PW-11 did not admit in the witness box that he had not told the police that Jiban went that evening to settle up a dispute in connection with wooden file as called by the accused Surjya, the only way the accused could make use of the contradiction in the statement of PW-11 before the police under section 161, Cr.PC and in his statement before the court is by proving that part of the statement of PW-11. The proviso to sub-section (1) of section 162, Cr.PC, makes it clear that any part of the statement of a witness called for by the prosecution in a trial reduced into writing may be used by the accused to contradict such witness in the manner provided by section 145, Indian Evidence Act if it is duly proved, Section 145, Indian Evidence Act provides that a witness may be cross-examined as to previous statements made by him in writing or reduced Into writing, and relevant to matters in question, without such writing being shown to him, or being proved, but if it is 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. Interpreting the said provisions of section 162,Cr.PC. and section 145, Indian Evidence Act, the Supreme Court held in Tahsildar Singh v. State of UP, (supra), cited by Mr. Sarkar :

"The proviso to S. 162 of the Code of Criminal Procedure only enables the accused to make use of such statement to contradict a witness in the manner provided by S. 145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of S. 145 of the Evidence Act. Nor are we impressed by the argument that it would not be possible to invoke the second part of S. 145 of the Evidence Act without putting relevant questions under the first part thereof. The difficulty is more imaginary than real. The second part of S. 145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate : A says in the witness-box that B stabbed C; before the police he had stated that D stabbed C. His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness-box. If he admits his previous statement, no further proof is necessary; if he does not admit, the practice generally followed is to admit it subject to proof by the police officer..."

The explanation to section 162, Cr.PC., states that an omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. Hence, it is not every omission in a statement made by a witness to a police officer reduced into writing that amounts to contradiction. The context of the statement of the witness reduced into writing in which the omission occurs has to be examined for the purpose of coming to the conclusion as to whether such omission amounts to a contradiction in the particular context. Unless, therefore, the part of the statement of the witness reduced into writing in which omission occurs is proved it is difficult for the court to hold that such omission in the statement of the witness reduced into writing by the police officer contradicts the statement of such witness in the witness box. Assuming, therefore, PW-11 had omitted to state before the Investigating Officer under section 161, Cr.PC. that Jiban went that evening along with Surjya to settle up a dispute relating to wooden file as to whether such omission amounts to a contradiction with his statement in the court could only be decided if that part of the statement was proved before the court. Since the previous statement ofPW-11 under section 161, Cr.PC before the Investigating Officer, PW-15 has not been proved, the court cannot discard the evidence of PW-11 that he told the police that Jiban went that evening to settle up a dispute in connection with wooden file as called by the accused Surjya.