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TMI Blog1959 (5) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... ith fire-arms suddenly appeared near a well situated on the southern side of the house of Ram Sarup and opened fire which resulted in the death of Natthi, Bharat Singh and Saktu, and injuries to six persons, namely, Hazari, Bankey, Khem Singh, Bal Kishan, Mizaji Lal and Nathu. The topography of the locality where the incident took place is given in the two site-plans, Ex. P-57 and Ex. P-128. It appears from the plans that the house of Ram Sarup faces west, and directly in front of the main door of his house is a, platform; to the southwest of the platform, about 25 paces away, is a well with a platform of 3 feet in height and about 13 feet in width around it; and to the west of the platform in front of Ram Sarup's house the audience were seated. The prosecution version of the sequence of events that took place on that fatal night is as follows: After the dinner, there was a music performance in front of the platform of Ram Sarup's house and a number of persons assembled there to hear the music. Saktu played on the Majeera while Nathu was singing. it was a full-moon night and there were also a gas lamp and several lanterns. Bankey and Asa Ram placed their guns on a cot clo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecution that the accused was really Tahsildar Singh, son of Man Singh. The other accused, Shyama Mallah, though made a statement before the Sub-Divisional Magistrate admitting some facts, which were only exculpatory in nature, denied the commission of the offence before the committing Magistrate and before the learned Sessions Judge. As many as eight eyewitnesses described the events in detail and clearly stated that both the accused took part in the incident. When one of the witnesses, Bankey (P. W., 30), was in the witness-box, the learned Counsel for the accused put to him the following two questions in cross-examination: 1. " Did you state to the investigating officer that the gang rolled the dead bodies of Natthi, Saktu and Bharat Singh, and scrutinized them and did you tell him that the face of Asa Ram resembled that of the deceased Bharat Singh ?" 2. " Did you state to the investigating officer about the presence of the gas lantern ?" In regard to the first question, the learned Sessions Judge made the following note: " The cross-examining Counsel was asked to show the law which entitles him to put this question. He is unable to show any law. 1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the learned Sessions Judge under s. 374 of the Code of Criminal Procedure for the confirmation of the sentence of death awarded to the appellants. The learned Judges of the High Court, after reviewing the entire evidence over again, accepted the findings of the learned Sessions Judge and confirmed the convictions and sentences passed on the appellants. Before the High Court a petition was filed by the appellants alleging that the learned Sessions Judge did not allow the Counsel for defence to put omissions amounting to material contradictions to the eye-witnesses and therefore the said eye-witnesses should be summoned so that the said questions might be put to them. That petition was filed on May 1, 1957, and on July 30, 1957, after the argument in the appeals was closed, the petition was dismissed. Presumably, no attempt was made to press this application either before the appeals were taken up for argument or during the course of the argument; but the question raised in the petition was considered by the earned Judges of the High Court in their judgment. The judgment discloses that the learned Counsel appearing for the appellants argued before the High Court that the learned Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reas the Advocate for the accused in. tended to put to the witnesses many other omissions to establish that there was development in the prosecution case from time to time but refrained from doing so in obedience to the considered order made by the learned Sessions Judge. (3) Even if only two questions were illegally disallowed, as it was not possible to predicate the possible effect of the cross-examination of thewitnesses on the basis of their answers to the said questions on their reliability, it should be held that the accused had no opportunity to have an effective cross-examination of the witnesses and there. fore they had no fair trial. (4) The learned Judges committed an illegality in testing the credibility of the witnesses other than the witness who gave the first information report by the contents of the said report. The arguments of the learned Counsel for the respondent in respect of each of the said contentions will be considered in their appropriate places. We shall proceed to consider the contentions of the learned Counsel for the appellants in the order in which they were addressed: Re. (1) (a): Diverse and conflicting views were expressed by Courts on the interp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture." S. 162: " No statement, other than a dying declaration, 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, or be used as evidence against the accused. Nothing in this section shall be deemed to affect the provisions of section 27 of the Indian Evidence Act, 1872." The first two paragraphs of s. 119 of Act 10 of 1872 with slight modifications not relevant for the present purpose constituted the corresponding paragraphs of s. 161 of Act 10 of 1882; and the third paragraph of s. 119 of the -former Act, with some changes, was made s. 162 of the latter Act. There was not much difference between the third paragraph of s. 119 of the Act of 1872 and s. 162 of the Act of 1882, except that in the latter Act, it was made clear that the prohibition did not apply to a dying declaration or affect the provisions of s. 27 of the Indian Evidence Act, 1872 The Code of 1898 did not make any change in s. 161, nor did it introduce any substantial change in the body of s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the writing shall not be used as evidence. On the other hand, it was contended on behalf of the accused that when the statement of a witness was admittedly reduced into writing, it would be unreasonable to allow any oral evidence of the statement to be given when the writing containing the statement could not be proved. The judgment of Hosain, J., in the case of Rustam v. King-Emperor ((1970) 7 A L.J. 468.) and the decisions in Fanindra Nath Banerjee v. Emperor ((1908) 36 Cal. 281), King-Emperor v. Nilakanta ((1912) 35 Mad. 247.) and Muthukumaraswami Pillai v. King-Emperor (1912) 35 Mad. 397.) represent one side of the question, and the judgment of Knox, J., in Rustam v. King-Emperor (1) and the observations of Beaman, J., in Emperor v. Narayan ((1907) 32 Bo-. 111) represent the other side. A division Bench of the Bombay High Court in Emperor v. Hanmaraddi Bin Ramaraddi ((1915) 39 Bo-~58.), after noticing the aforesaid decisions on the question, ruled that the police officer could be allowed to depose to what the witness had stated to him in the investigation for the purpose of corroborating what the witness had said at the trial. In that context, Shah, J., observed at p. 66: The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d him only to use it to contradict the witness in the manner provided by s. 145 of the said Act; (c) the said statement could also be used for the purpose of only explaining any matter referred to in his cross-examination; and (d) while under the old section a discretion was vested in the Court in the matter of furnishing the accused with a copy of an earlier statement of a prosecution witness, under the amended section, subject to the second proviso, a duty was cast upon the Court, if a request was made to it by the accused, to direct that the accused be furnished with a copy thereof. The effect of the amendment was that the loopholes which enabled the use of the statement made before the police in a trial were plugged and the only exception made was to enable the accused to use the statement of a witness reduced into writing for a limited purpose, namely, in the manner provided by s. 145 of the Indian Evidence Act, 1872, and the prosecution only for explaining the matter referred to in his cross examination. The scope of the limited use also was clarified. Under the old section the statement was permitted to be used to impeach the credit of a witness in the manner provided by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 112 to contradict the witness in the manner provided under s. 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. Braund, J., in Emperor v. Aftab Mohd. Khan (A.I R. 1940 All. 291.) gave the purpose of s. 162 thus at p. 299: " As it seems to us it is to protect accused persons from being prejudiced by statements ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement. In such a case all that is necessary is to look to the former statement of which no further proof is necessary because of the admission that it was made. " It is unnecessary to refer to other cases wherein a similar procedure is suggested for putting questions under s. 145 of the Indian Evidence Act, for the said decision of this Court and similar decisions were not considering the procedure in a case where the statement in writing was intended to be used for contradiction under s. 162 of the Code of Criminal Procedure. Section 145 of the Evidence Act is in two parts: the first part enables the accused to cross-examine a witness as to previous statement made by him in writing or reduced to writing to without such writing being shown to him; the second part deals with a situation where the cross-examination assumes the shape of contradiction : in other words, both parts deal with cross-examination; the first part with cross-examination other than by way of contradiction, and the second with cross-examination by way of contradiction only. The procedure prescribed is that, if it is intended to contradict a witness by the writing, his attention must, before the writing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the section, should be between what a witness asserted in the witness-box and what he stated before the police-officer, and not between what he said he had stated before the police-officer and what he actually made before him. In such a case the question could not be put at all: only questions to contradict can be put and the question here posed does not contradict it leads to an answer which is contradicted by the police statement. This argument of the learned Counsel based upon s. 145 of the Evidence Act is, therefore, not of any relevance in considering the express provisions of s. 162 of the Code of Criminal Procedure. This leads us to the main question in the case, i.e., the interpretation of s. 162 of the Code of Criminal Procedure. The cardinal rule of construction of the, provisions of a section with a proviso is succinctly stated in Maxwell's Interpretation of Statutes, 10th Edn., at p. 162 thus: " The proper course is to apply the broad general rule of construction, which is that a section or enactment must be construed as a whole, each portion throwing light if need be on the rest. The true principle undoubtedly is, that the sound interpretation and meaning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mense 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 policeofficer 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. If the provisions of the section are construed in the aforesaid back 'ground, much of the difficulty raised disappears. Looking at the express words used in tile section, two sets of words stand out prominently which afford the key to the intention of the legislature. They are : " statement in writing ", and " to contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 145 of the Evidence Act indicates the manner in which contradiction is brought out. The cross-examining Counsel shall put the part or parts of the statement which affirms the contrary to what is stated in evidence. This indicates that there is something in writing which can be set against another statement made in evidence. If the statement before the police-officer-in the sense we have indicated-and the statement in the evidence before the Court are so inconsistent or irreconcilable with each other that both of them cannot co-exist, it may be said that one contradicts the other. It is broadly contended that a statement includes all omissions which are material and are such as a witness is expected to say in the normal course. This contention ignores the intention of the legislature expressed in s. 162 of the Code and the nature of the non-evidentiary value of such a statement, except for the limited purpose of contradiction. Unrecorded statement is completely excluded. But recorded one is used for a specified purpose. The record of a statement, however perfunctory, is assumed to give a sufficient guarantee to the correctness of the statement made, but if words not recorded ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it would give a different meaning; and if so read, it would explain away the alleged contradiction. We think that the word " cross-examination " in the last line of the first proviso to s. 162 of the Code of Criminal Procedure cannot be understood to mean the entire gamut of cross-examination without reference to the limited scope of the proviso, but should be confined only to the cross-examination by contradiction allowed by the said proviso. The conflict of judicial opinion on this question is reflected in the decisions of different High Courts in this country. One of the views is tersely put by Burn J. in In re Ponnusami Chetty ((1933) I.L.R. 56 Mad. 475.) at p. 476: "Whether it is considered as a question of logic or language, " omission " and " contradiction " can never be identical. If a proposition is stated, any contradictory proposition must be a statement of some kind, whether positive or negative. To " contradict " means to " speak against " or in one word to " gainsay ". It is absurd to say that you can contradict by keeping silence. Silence may be full of significance, but it is not " diction &quo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is recorded statement in the diary, the latter cannot be used at all. If a witness deposes in Court that a certain fact existed but had stated under s. 162 either that fact had not existed or that the reverse and irreconcilable fact had existed it is a case of conflict between the deposition in the Court and the statement under s. 162 and the latter can be used to contradict the former. But if he had not stated under s. 162 anything about the fact there is no conflict and the statement cannot be used to contradict him. In some cases an omission in the statement under s. 162 may amount to contradiction of the deposition in Court ;they are the cases where what is actually stated is irreconcilable with what is omitted and impliedly negatives its existence." At a later stage of the judgment, the learned Judges laid down the following two tests to ascertain whether a particular omission amounts to contradiction: (i) an omission is not a contradiction unless what is actually stated contradicts what is omitted to be said; and (ii) the test to find out whether an omission is contradiction or not is to see whether one can point to any sentence or assertion which is irreconcilable with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o basis for eliciting the omission. Our argument is further fortified by the use of the words " any part of such statement ............... may be used to contradict." It is not said that whole statement may be used. But in order to prove an omission the whole statement has to be so used, as has been done in the present case."The contrary view is expressed in the following proposition " An omission may amount to Contradiction if the matter omitted was one which the witness would have been expected to mention and the Sub-Inspector to make note of in the ordinary course. Every detail is expected to be noted." This proposition, if we may say so, couched in wide phraseology enables the trial Judge to put into the mouth of a witness things which he did not state at an earlier stage and did not intend to say, oil purely hypothetical considerations. The same idea in a slightly different language was expressed by Bhargava and Sahai, JJ., in Rudder v. The State (A.I.R. 1957 All. 239.) at p. 240: " 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 om ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have recorded. When the section says that the statement is to be used to contradict the subsequent version in the witness-box, the proposition brings in, by construction, what he would have stated to the police within the meaning of the word " statement ". Such a construction is not permissible. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arty not to stir from their places; (2) the presence of a gas lantern;(3) the chase of Bharat Singh by the assailants; (4) the scrutiny of the dead bodies by the gang; and (5) the return of the gang in front of the house of Bankey. The learned Counsel for the respondent contests this fact and argues that only two omissions, namely, the presence of a gas-lantern and the scrutiny of the dead bodies by the gang, were put in the cross-examination of P. W. 30 and no other omissions were put to him or any other witness, and that indeed the order of the learned Sessions Judge did not preclude him from putting all the omissions to the witnesses and taking the decision of the Judge on the question of their admissibility. He further contends that even before the learned Judges of the High Court the Advocate for the appellants only made a grievance of hi,,; not having been allowed to put the aforesaid two omissions and did not argue that he intended to rely upon other omissions but did not do so as he thought that the learned Sessions Judge would disallow them pursuant to his previous order. Before the High Court an application was filed for summoning eight eyewitnesses on the ground that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade strenuous attempts before us to persuade us to hold that there must have been a mistake. He would say that the learned Counsel had in fact relied upon all the aforesaid omissions in support of his contention that there was development of the case of the prosecution from time to time and therefore he must have also relied upon the said omissions in the context of the statements made under s. 162 of the Code of Criminal 'Procedure; on the other hand, the fact that the learned Judges considered all the alleged omissions in connection with the said contention and only considered two omissions in regard to the contention based on s. 162 of the Code is indicative of the fact that the learned Counsel, for reasons best known to him, did not think fit to rely upon all the alleged omissions. The deposition of P.W. 30 also shows that only two omissions in the statement before the police, viz., the existence of a gas-lantern and the scrutiny of the dead bodies by the gang, were put to him in cross-examination and the learned Sessions Judge disallowed those questions on the ground that the learned Counsel was not able to `how any law entitling him to put the said questions. Though the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Court cannot co-exist, for there is no repugnancy between the two, as even on the assumption that lantern excludes a gas-lantern, both can exist in the scene of occurrence. The same can be said also about the scrutiny of the faces of the dead bodies. In the statements before the police, the movements of the appellants were given. It was stated that they shot at the people and decamped with the gun of Bharat Singh. The present evidence that in the course of their pursuit, they looked at the faces of two of the dead bodies does not in any way contradict the previous versions, for the said incident would fit in with the facts contained in the earlier statements. The appellants could have shot at the audience, pursued them, taken the gun of Bharat Singh and on their way scrutinised the dead bodies. The alleged omission does not satisfy any of the principles stated by us. In this view, it is unnecessary to express our opinion on the question whether, if the said two omissions amounted to contradiction within the meaning of s. 162 of the Code of Criminal Procedure, the appellants were in any way prejudiced in the matter of their trial. The last contention of the learned Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f those who had participated in it. There were several matters with respect to which, if questions had been allowed to be put, an effective -cross-examination might have resulted and enabled the appellants to persuade the trial Judge to hold that the witnesses were entirely unreliable. In a case of this kind in which the appellants were involved, there were only two principal questions which were of vital importance: (1) how far the witnesses had improved their story in their evidence in Court from what they had said to the police concerning the occurrence, and (2) the existence of opportunity and sufficient light to enable proper identification. It may be assumed, although it has been a matter of controversy, that the order of the trial Judge disallowing the two questions which were put was understood by the lawyer for the defence to mean that all similar questions in the nature of omissions in the police statements with respect to matters stated in Court would be disallowed and therefore no attempt was made to put further questions to the witnesses in this respect. Unfortunately, the lawyer for the defence had not in this particular case laid any adequate foundation upon which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sa Ram, one of the men whom they wished to kill, had been killed. Here again, this was a matter of detail which Johari might not have considered necessary to mention. The first information report made no mention of the existence of gas light. It did, however, mention the existence of light of lantern and existence of moonlight. The existence of light from lantern and the full moon obviously was sufficient to recognise known persons. It is in evidence that the appellants were known for several years to the witnesses who had identified them as participants in the occurrence. It could not be said with absolute certainty that the mention of the existence of light of lantern excluded the existence of gas light. The statement of Johari gives clear indication that the culprits did not remain all the time at the well, because they must have advanced to take away the gun which was with Bharat Singh. The culprits must have stayed at the place of occurrence for some time to enable Bankey Kumhar to fire his gun at them and to convey to Johari's mind the certainty that some of the culprits must have been injured. Reference is made only to some of the details and not to all the discrepancies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Indian Evidence Act, a witness's credit can be impeached under ss. 145 and 155 of that Act. The manner in which the provisions of these sections could be utilized to impeach the credit of a witness covers a wide field. If, however, it was intended to contradict a witness concerning his previous statement reduced into writing, then the provisions of s. 145 require that those parts of the writing by which it was sought to contradict the witness must be shown to him. There can, be no doubt that the provisions of the Code from 1861 to 1898 in no way curbed the right of cross-examination on behalf of the accused. The provisions were intended to protect the accused in that no statement of a witness to the police reduced into writing could be used as evidence against him, but the right to cross-examine the witness to the fullest extent in accordance with the provisions of the Indian Evidence Act in order to show that he was unreliable, remained unaffected. The real question for consideration is whether the amendment of the Code in 1923 brought about such a radical change in the provisions of s. 162 of the Code as to suggest that the Legislature had taken a retrograde step, and had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tect the person making the statement from a supposed unreliability of police testimony as to alleged statements or both." It is possible that the legislature had also in mind that the use of statements made under the influence of the investigating agency might, unless restricted to a use for the benefit of the accused, result in considerable prejudice to him. But whatever the intention which led to the imposition of the restrictions, it is manifest that the statements, however recorded, cannot be used except to the extent allowed by the section. The prohibition contained in the words "any purpose" is otherwise absolute. Then follow two provisos. The first gives the right to the accused to make use of the statements for contradicting a witness for the prosecution in the manner provided by s. 145 of the Indian Evidence Act. It also gives a right to the prosecution to use the statement for purposes of reexamination of the same witness but only to explain any matter referred to in the cross-examination of the witness. The first proviso, when analysed, gives the following ingredients: (i) A prosecution, witness Is called for the prosecution ; (ii) whose statement has p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly so as to bring out a contradiction and no more. We regret we cannot agree (and we say this with profound respect) that the accused is not entitled to crossexamine but only to contradict. In our opinion, the reference to s. 145 of the Indian Evidence Act brings in the whole of the manner and machinery of s. 145 and not merely the second part. In this process, of course, the accused cannot go beyond s. 162 or ignore what the section prohibits but cross-examination to establish a contradiction between one statement and another is certainly permissible. This question loses much of its importance when there are patent contradictions and they can be put to the witness without any cross-examination as in the two statements: (a) I saw A hit B. (b) I did not see A hit B. But there are complex situations where the contradiction is most vital and relevant but is not so patent., There are cases of omissions on a relevant and material point. Let us illustrate our meaning by giving two imaginary statements: (a) When I arrived at the scene I saw that X was running away, chased by A and B who caught him. (b) When I arrived at the scene I saw X take out a dagger from his pocket, stab D in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o, why is your statement to the police silent as to stabbing ? A. I stated both the facts to the police. The witness can then be contradicted with his previous statement. We need hardly point out that in the illustration given by us, the evidence of the witness in Court is direct evidence as opposed to testimony to a fact suggesting guilt. The statement before the police only be called circumstantial evidence of, complicity and not direct evidence in the strict sense. Of course, if the questions framed were: Q. What did you state to the police ? or Q. Did you state -to the police that D stabbed X ? They may be ruled out as infringing s. 162 of the Code of Criminal Procedure, because they do not set tip a contradiction but attempt to get a fresh version from the witnesses with a view to contradicting him. How the cross-examination can be made must obviously vary from case to case, counsel to counsel and statement to statement. No single rule can be laid down and the propriety of the question in the light of the two sections can be found only when the facts and questions are before the Court. But we are of opinion that relevant and material omissions amount to vital contradiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put to a witness in order to contradict him. It would be for the Judge to decide in each case whether in the circumstances before him the question could be put. The purpose of cross-examination is to test the veracity of the statement made by a witness in his examination-in-chief as also to impeach his credit. Not only is it the right of the accused to shake the credit of a witness, but it is also the duty of the Court trying an accused to satisfy itself that the witnesses are reliable. It would be dangerous to lay down any hard and fast rule. We pause to look at the matter from another angle. We shall assume that the interpretation which the State claims should be put upon s. 162(1) is correct and compare the respective rights of the accused and the prosecution. According to this interpretation, the accused has no right of cross-examination in respect of the contradiction. This means that no question can be put about the previous statement but only the part in which there is a contradiction can be brought to the witness's notice and his explanation, if any, obtained. In other words, there is only " contradiction " and no more. But when the accused has used the statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Notable English Trials (1912) at pages 77-79, the trial of William Palmer, pages 35,36, 50-51. Examples will be found in every leading trial. The question is, did the legislature intend giving this right ? In our opinion, the legislature did and for the very obvious reason that it gave the prosecution also a chance to re-examine the witness, to explain I any matter referred to in the cross-examination of the witness. We respectfully do not agree that the section should be construed in the way our learned brother has construed it. Though we agree as to the result, our opinion cannot be left unexpressed. If the section is construed too narrowly, the right it confers will cease to be of any real protection to the accused, and the danger of its becoming an impediment to effective cross-examination on behalf of the accused is apparent. This brings us to the consideration of the questions, which were asked and disallowed. These were put during the cross-examination of Bankey, P. W. 30. They are: Q. Did you state to the investigating officer that the gang rolled the dead bodies of Nathi, Saktu and Bharat Singh and scrutinized them, and did you tell him that the face of Asa Ram resem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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