Supreme Court: Prior contradictory statement of witness is not substantive evidence

There is a cardinal distinction between a party who is the author of a prior statement and a witness who is examined and is sought to be discredited by use of his prior statement. In the former case an admission by a party is substantive evidence if it fulfils the requirements of Section 21 of the Evidence Act; in the latter case a prior statement is used to discredit the credibility of the witness and does not become substantive evidence. In the former there is no necessary requirement of the statement containing the admission having to be put to the party because it is evidence proprio vigore : in the latter case the Court cannot be invited to disbelieve a witness on the strength of a prior contradictory statement unless it has been put to him, as required by Section 145 of the Evidence Act. This distinction has been clearly brought out in the ruling in Bharat Singh v. Bhagirathi MANU/SC/0362/1965 : [1966]1SCR606 . This Court disposed of a similar argument with the following observations :

Admissions are substantive evidence by themselves, in view of Sections 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under Section 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive and merely serves the purpose of throwing doubt on the veracity of the witness.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1787 of 1967

Decided On: 30.10.1973

Bishwanath Prasad  Vs. Dwarka Prasad

Hon'ble Judges/Coram:

H.R. Khanna, R.S. Sarkaria and V.R. Krishna Iyer, JJ.

Citation: AIR 1974 SC 117,

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Whether a person can be punished for perjury if he gives contradictory statements?

The true test for determining whether statement is false or
not 'is whether two statements are contradictory or irreconcilable to
each other.' Certainly, the amount can either be paid as an illegal
gratification or it can be paid for laying of water pipeline [legitimate
purpose]. It cannot be for both the purposes. This test is certainly
satisfied.
20] When we tried to satisfy another test of 'willful/knowingly'
disclosure, we find that the case fails on this forum. It means, the
witness must tell the contrary fact knowingly or willfully. According to
evidence, it is a second statement which is false. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.699 OF 2006

 Shri Manikrao s/o Shivram Wagh, Vs The State of Maharashtra,

C ORAM : S.M. MODAK, J.

PRONOUNCED ON : 16 th FEBRUARY, 2019.

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How to appreciate evidence if a person is giving two contradictory statements at different times?

So far as the statement of the appellant that he informed the Corporation that the portion was 'let' to appellant was concerned, it was observed by the first appellate Court that the appellant was not asked in cross-examination as to why he had so informed the Corporation and that, in any event, the letter dated 31.1.1974 executed by the appellant and other evidence showed that the real relationship of the appellant in respect of the room was as 'paying guest'.

7. These findings arrived at by the appellate Court are findings of fact and were not liable to be interfered with by the High Court under Article 226 of the Constitution of India. In fact, in Rusi Dinshawji Deboo v. Cawasji Rustomji Patel and Ors. MANU/SC/0804/1987 : AIR1987SC1771 , a letter in which there was an admission that the person was occupying as paying guest was held binding on the parties under the Bombay Act, 1947.

8. So far as the contention of the appellant that the respondent informed the Corporation in tax proceedings that the appellant was paying rent of Rs. 200/- P.M. , we may state that the said statement even if true stood rebutted by the appellant's letter dated 31.1.1974 admitting he was in possession as a 'paying guest'. Apart from that as pointed out by the Privy council in Venkatapathi Raju v. Venkatanarsimha Raju MANU/PR/0023/1936;

It sometimes happens that persons make statements which serve their purpose, or proceed upon ignorance of the true position; and it is their statements, but their relations with the estate, which should be taken into consideration in determining the issue

The above observations were followed and applied by Subba Rao, J. (as he then was) in Rukhmabai v. Lala Laxminarayan and Ors. MANU/SC/0186/1959 : [1960]2SCR253 .

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 7782-83 of 1997

Decided On: 19.11.1997

 Surendra Kumar Jain Vs. Royce Pereira

Hon'ble Judges/Coram:

S.B. Majmudar and M. Jagannadha Rao, JJ.

Citation:AIR 1998 SC 394,(1997) 8 SCC 759

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Whether police statement of witness recorded in one case can be used in other case?

Further, in State of Kerala V Babu (1999 (4) SCC 621),

  the Apex Court was confronted with the question as to

  whether the statement of a witness recorded under S.161

  of Cr.P.C. in one particular crime could be used against

  that witness in any other trial enquiry or proceedings by

  the accused.



               11. "The High Court in the impugned
                judgment proceeded on the basis that
                statement recorded by an investigating
                officer in any case which was under
                investigation being a statement made
                under S, 161 of the Code, the same can be
                used for the limited purpose provided under
                S.162 of the Code read with S.145 of the
                Evidence Act. There can be no quarrel with
                this approach of the High Court in regard to
                the use of the previous statements of a
                witness made in the course of another
                investigation being used in the course of
                another criminal trial, This is because, as
                seen from the observations of this Court in
                the case of Tahsildar Singh (supra) the


                very object of enactment of S.161 of the
                Code and S.145 of the Evidence Act is to
                create a right in the accused to make use
                of the previous statements of the witnesses
                for the purpose of contradiction and for
                impeaching the merit of the witness. This
                right has not been taken away by S.172 of
                the Code and, as noticed above, there is no
                prohibition in regard to this right of the
                accused either under the Code or under the
                Evidence Act.


        


               13............................. If that be so and if
                the court comes to the conclusion that the
                production of such document is necessary
                or desirable then, in our opinion, the court
                is entitled to summon the case diary of
                another case under S.91 of the Code de
                hors the provisions of S.172 of the Code for
                the purpose of using the statements made
                in the said diary, for contradicting a
                witness. When a case diary, as stated
                above, is summoned under S.91(1) of the
                Code then the restrictions imposed under
                Sub-s.(1) and (3) of S.172 would not apply
                to the use of such case diary but we hasten
                to  add     that     while     using   a  previous
                statement recorded in the said diary, the
                court should bear in mind the restrictions
                imposed under S.162 of the Code and
                S.145 of the Evidence Act because what is
                sought to be used from the case diary so
                produced, are the previous statements
                recorded under S.161 of the Code.
                                                    ( Emphasis supplied )



16.Having regard to the above binding precedents there

  cannot be any doubt that S.162 of the Code does not

  prohibit the use of the 161 statement of any witness in

  any other proceeding other than the inquiry or trial in

  respect of the offence for which the investigation was

  conducted. However the Apex Court has cautioned that

  the court should bear in mind the restrictions imposed

  under S.162 of the Code and S.145 of the Evidence Act

  because what is sought to be used from the case diary so

  produced, are the previous statements recorded under

  S.161 of the Code. In view of the above, I am of the view

  that the reasons on the basis of which the application was

  dismissed by the Court below cannot be sustained.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                     PRESENT:

                 MR. JUSTICE RAJA VIJAYARAGHAVAN V

            26TH DAY OF OCTOBER 2016
                      Crl.MC.No. 6611 of 2016 

       SANTHOSH KUMAR Vs STATE OF KERALA,
                

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Whether accused can be acquitted on ground that prosecution witnesses gave contradictory evidence?

 A mere statement that the accused-appellant Jhuma was involved in illicit act of prostitution and that she insisted Ashalata to involve in the illicit activity and Ashalata denied to do so and therefore, she was tortured, in the particular facts and circumstances of this case where the other allegation of the prosecution is that the accused Sanjib used to suspect the character of his wife Ashalata and therefore, killed her in the night taking her out of the dwelling hut on some pretext are quite contradictory with each other and, therefore, I think the accused-appellant should get the benefit of doubt. 

IN THE HIGH COURT OF TRIPURA

Crl. Appeal No. 24 of 2013

Decided On: 08.12.2016

 Jhuma Das

Vs.

 State of Tripura

Coram:

S.C. Das, J.

Citation: 2017 CRLJ 1204

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What are necessary conditions for initiation of proceeding U/S 340 of CRPC?

There are two pre conditions for initiating proceedings
under Section 340 CrPC – (i) materials produced before the
court must make out a prima facie case for a complaint for the
purpose of inquiry into an offence referred to in clause (b)(i) of
sub-Section (1) of Section 195 of the CrPC and (ii) it is
expedient in the interests of justice that an inquiry should be
made into the alleged offence.
7. The mere fact that a person has made a contradictory
statement in a judicial proceeding is not by itself always
sufficient to justify a prosecution under Sections 199 and 200 of
the Indian Penal Code (45 of 1860) (hereinafter referred to as
“the IPC”); but it must be shown that the defendant has
intentionally given a false statement at any stage of the judicial
proceedings or fabricated false evidence for the purpose of
using the same at any stage of the judicial proceedings. Even
after the above position has emerged also, still the court has to
form an opinion that it is expedient in the interests of justice to
initiate an inquiry into the offences of false evidence and
offences against public justice and more specifically referred in
Section 340(1) of the CrPC, having regard to the overall factual
matrix as well as the probable consequences of such a

prosecution. (See K.T.M.S. Mohd. and Another v. Union of
India(1992) 3 SCC 178). 
The court must be satisfied that such an inquiry is
required in the interests of justice and appropriate in the facts
of the case.
8. In the process of formation of opinion by the court that
it is expedient in the interests of justice that an inquiry should
be made into, the requirement should only be to have a prima
facie satisfaction of the offence which appears to have been
committed. It is open to the court to hold a preliminary inquiry
though it is not mandatory. In case, the court is otherwise in a
position to form such an opinion, that it appears to the court
that an offence as referred to under Section 340 of the CrPC
has been committed, the court may dispense with the
preliminary inquiry. Even after forming an opinion as to the
offence which appears to have been committed also, it is not
mandatory that a complaint should be filed as a matter of
course. (See Pritish v. State of Maharashtra and Others (2002) 1 SCC 253).
9. In Iqbal Singh Marwah and Another v. Meenakshi
Marwah and another (2005) 4 SCC 370
, a Constitution Bench of this Court has
gone into the scope of Section 340 of the CrPC. Paragraph-23
deals with the relevant consideration:
“23. In view of the language used in Section 340
CrPC the court is not bound to make a complaint
regarding commission of an offence referred to in
Section 195(1)(b), as the section is conditioned
by the words “court is of opinion that it is
expedient in the interests of justice”. This shows
that such a course will be adopted only if the
interest of justice requires and not in every case.
Before filing of the complaint, the court may hold
a preliminary enquiry and record a finding to the
effect that it is expedient in the interests of
justice that enquiry should be made into any of
the offences referred to in Section 195(1)(b). This
expediency will normally be judged by the court
by weighing not the magnitude of injury suffered
by the person affected by such forgery or forged
document, but having regard to the effect or
impact, such commission of offence has upon
administration of justice. It is possible that such
forged document or forgery may cause a very
serious or substantial injury to a person in the
sense that it may deprive him of a very valuable
property or status or the like, but such document
may be just a piece of evidence produced or
given in evidence in court, where voluminous
evidence may have been adduced and the effect
of such piece of evidence on the broad concept
of administration of justice may be minimal. In
such circumstances, the court may not consider
it expedient in the interest of justice to make a
complaint. …”
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 11120 OF 2016
(Arising out of S.L.P.(C) No. 13749 of 2016)
AMARSANG NATHAJI 
V
HARDIK HARSHADBHAI PATEL 
Dated:November 23, 2016.

Citation:(2017) 1 SCC113,2017 CRLJ758

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Landmark judgment of Supreme court of Tahsildar singh v state of Uttar pradesh

 It is not necessary to multiply cases. The two conflicting views may be briefly stated thus : (i) omissions, unless by necessary implication be deemed to be part of the statement, cannot be used to contradict the statement made in the witness-box; and (ii) they must be in regard to important features of the incident which are expected to be included in the statement made before the police. The first proposition not only carries out the intention of the legislature but is also in accord with the plain meaning of the words used in the section. The second proposition not only stretches the meaning of the word "statement" to a breaking point, but also introduces an uncertain element, namely, ascertainment of what a particular witness would have stated in the circumstances of a particular case and what the police officer should 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.

50. 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 can not 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 pint of time; in the statement before the police the word "only" can 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.

51. The aforesaid examples are not intended to be exhaustive but only illustrative. The same instance may fall under one or more heads. It is for the trial Judge to decide in each case, after comparing the part or parts of the statement recorded by the police with that made in the witness-box, to give a ruling, having regard to the aforesaid principles, whether the recital intended to be used for contradiction satisfies the requirements of law.

Citation: AIR1959SC1012, 1959(2)AnWR201, (1959) 29 AWR 522, 1959CriLJ1231, (1959)IIMLJ201, [1959]Supp(2)SCR875

IN THE SUPREME COURT OF INDIA

Decided On: 05.05.1959

Appellants:Tahsildar Singh and Anr.
Vs.
Respondent:The State of Uttar Pradesh

Read Judgment here;click here

Hon'ble Judges/Coram:
A.K. Sarkar, B.P. Sinha, J.L. Kapur, K. Subba Rao, M. Hidayatullah and T.K. Thommen, JJ.

Read Judgment here: click here

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