The Judgment of the Court was delivered by

Edgley, J.:— In this case the learned Sessions Judge of Nadia has made a reference to this Court under s. 374 of the Code of Criminal Procedure, in respect of Rahenuddin Mandai, who was sentenced to death by him on January 20, 1948.

The prisoner had been placed on his trial on a charge of murdering a woman named Sarashi Bala Dasi on or about July 80, 1942. He was found guilty under s. 802 of the Indian Penal Code by a majority verdict, five of the jurors holding that he was guilty, while four of them found that he was not guilty.

The case for the prosecution was to the effect that, on the day of the occurrence, Sarashi Bala Dasi left her house in order to bathe in the Chhota Pâglâ beel, which was situated at a distance of about three rashis from her residence. While she was on her way she was attacked by the prisoner, who cut her throat, apparently for the purpose of stealing a gold necklace, which she was wearing. At this time a boy named Puti Ram Biswas, who had been ploughing his field near the road, witnessed the occurrence and raised the alarm. A number of villagers arrived on the scene and gave chase to the murderer. The chase was a long one and apparently occupied several hours. Finally, Rahenuddin Mandai took refuge in the verâandâ of the house of Jyotish Haidar, where he was arrested. Blood was found on his person and on the cloth which he was wearing. Subsequently he was taken to the house of Dr. Aswini Pramanik, where he was identified by Puti Ram Biswas. He was arrested in due course and, after the usual proceedings before the committing Magistrate, he was placed on his trial before the Sessions Judge of Nadia.

Before the committing Magistrate the prisoner merely stated that he was innocent. When he was examined before the Sessions Court under s. 342 of the Code of Criminal Procedure he made the following statement:—

I am innocent. I know nothing about this murder. As I was passing along the road, they said “This man has committed the murder”. Saying this they caught me. I know nothing about the murder. After seizing me, they beat me severely. They said “Admit that you have committed the murder”. I did not admit. I had with me Rs. 400 which was snatched away.

The defence case which seems to have been put to the prosecution witnesses in cross-examination was to the effect that the appellant was a cattle-dealer and that, while he was on his way home, he had been arrested by the villagers, under a misapprehension.

His Lordship then discussed the evidence in the case and certain alleged contradictions between the evidence of the first informant and other witnesses and the statements in the First Information Report.]

In any case, however, we must point out that, even if it could be said that there were discrepancies of a serious nature between the testimony of the first informant, as given in Court, and the previous statement made by him in the First Information Report, it would not be open to the defence to place any reliance on these discrepancies, unless there had been due compliance with the provisions of s. 145 of the Indian Evidence Act. The First Information Report is not ordinarily substantive evidence. It is merely a previous statement which may be proved by the prosecution for the purpose of corroborating the first informant and may be used by the defence for the purpose of contradicting him. If it is desired to use any statement contained in the First, Information Report for the purpose of contradicting the first informant, it is essential that the attention of the witness should be drawn to those parts of the document, which it is intended to use for the purpose of contradicting him, in order that he may be given an opportunity, to furnish a suitable explanation with regard to the alleged contradiction. This has not been done in the case with which we are how dealing. After the first informant has testified with regard to a particular incident connected with the occurrence the requirements of s. 145 of the Indian Evidence Act are not met merely by asking him whether he made some other statement to the police. The attention of the witness must be expressly drawn to the terms of the relevant passage in the other statement and he should be asked whether he has any explanation to offer with regard to any apparent discrepancy. This was not done in the present case with regard to any of the abovementioned discrepancies upon which the defence rely and it follows that with regard to the evidence of Panchu Gopal Biswas, the appellant was placed in a more favourable position before the jury than that to which he was legally entitled.

Further, with reference to this particular witness we find that his deposition before the committing Magistrate was allowed to be put in by the defence under the provisions of s. 288 of the Code of Criminal Procedure. We find it extremely difficult to understand why this course was adopted, as Panchu Gopal Biswas's deposition before the committing Magistrate seems only to contain at the most two very minor discrepancies. The first is with regard to the depth of the water of the Pâglâ beel and the text was on the point whether the appellant questioned the villagers who arrested him as to why they had chased him. If the deposition of this witness be read as a whole, he appears to have told substantially the same story both before the committing Magistrate and before the Sessions Court.

Section 288 of the Code of Criminal Procedure is in the following terms;—

The evidence of a witness duly recorded in the presence of the accused under Chapter XVIII may, in the discretion of the presiding Judge, if such witness is produced and examined, he treated as evidence in the case for all purposes subject to the provisions of the Indian Evidence Act, 1872.

In our view, this section confers a discretion on the Judge which should be very carefully and sparingly exercised. The general scheme of the Indian Evidence Act and of the Code of Criminal Procedure with regard to criminal trials is that the evidence for or against an accused person should ordinarily be given in open Court and that a witness should be subjected to cross-examination in the ordinary way with regard to all statements made by him. If a witness completely resiles from the evidence which he has given before the committing Magistrate or, if the testimony which he gives at the trial of an accused person is substantially different from that which he has given on some previous occasion, it may be necessary for the Judge to exercise his discretion under s. 288 of the Code of Criminal Procedure for the purpose of bringing the previous statement on the record. In the present case, however, we are of opinion that the learned Judge wrongly exercised his discretion under this particular section. As already pointed out, the testimony of Panchu Gopal Biswas before the committing Magistrate was substantially the same as that which he gave before the Sessions. Court if it had been considered necessary to contradict him by any statement contained in his previous deposition this should have been done under s. 145 of the Indian Evidence Act by observing the procedure to which attention has already been drawn. In any case, however, even if it had been necessary to apply the provisions of s. 288 of the Code of Criminal Procedure in this case, it would still have been incumbent upon the defence, if they wished to contradict Panchu Gopal Biswas by anything contained in his previous deposition, to draw his attention to those passages in that deposition by which it was intended to contradict him, inasmuch as s. 288 of the Code of Criminal Procedure expressly states, that this section must be treated as subject to the provisions of the Indian Evidence Act. This is, therefore, another instance in which the appellant appears to have had the benefit of an advantage to which, strictly speaking, he was not entitled.

Before leaving the First Information Report it may also be mentioned that Mr. Talukdar has relied upon certain statements contained in the document for the purpose of discrediting the witnesses other than the first informant. In our view, this is a use to which a document of this nature cannot properly be put. To use the First Information Report in this way is, in effect, to treat it as substantive evidence in this case, whereas, as already pointed cut, it is merely a previous statement which may be used either for the purpose of corroborating the first informant or for discrediting him, provided the proper procedure is observed.

The next three important witnesses are Gour Pada Bhattacharjya, P.W 3, Panchanan Biswas, P.W 4, and Brindaban Mandal, P.W 5. These witnesses corroborate the testimony of Panchu Gopal Biswas with regard to the details connected with the chase and the subsequent arrest of the appellant at the house of Jyotish Haidar. They also furnish corroboration as regards the testimony of Puti Ram Biswas with regard to the circumstances in which the alarm was given. From the testimony of these persons there can be no doubt that, at the time of his apprehension, the appellant was wearing a blood stained cloth and also that he had blood stains on his person. Although he had an opportunity to explain both his attempt to escape and the presence of these blood stains, no satisfactory explanation was offered by him with regard to these matters.

We find that the whole of the deposition of Brindaban Mandal at the previous trial of this appellant was put in under the provisions of s. 145 of the Indian Evidence Act. This was apparently done for the purpose of bringing some minor discrepancies on the record. The observations which we have already made with regard to s. 145 of the Indian Evidence Act apply also in this case as it is quite clear that this witness was not properly cross-examined with regard to these alleged discrepancies nor was he given an opportunity of explaining them. In any view of the matter, however, it was not necessary to put in the whole of this witness's deposition at the previous trial of this appellant. If the proper procedure had been observed, all that need have been done was to put in those passages in the former deposition by which it was intended to contradict the witness.

Birendra Kishore Bal, P.W 6, was the doctor who testified with regard to the nature of the injuries on the deceased woman. His evidence was put in under s. 509 of the Code of Criminal Procedure. In his opinion, death was due to a very sever injury on the woman's neck and he testified that, with regard to certain minor injuries on her person, these might have been caused by an attempt on the woman's part to catch the weapon with which she was struck.

Arabinda Biswas, P.W 7, is the husband of Sarashi Bala Biswas and he corroborates Puti Ram Biswas with regard to that item in the boy's testimony where he said that he was feeling unwell immediately after the occurrence.

Kali Dasi Bewa and Amulya Biswas are not witnesses of any particular importance.

Jyotish Haidar, P.W 10, states that he found the accused in his house at about 2 or 2-30 p.m He testifies with regard to the blood on his wearing cloth and a patch of blood on his chest.

Aswini Kumar Pramanik, P.W 12, is the man to whose house the appellant was subsequently taken. This witness also gives evidence with regard to the presence of the blood-stains.

Upendra Nath Ghosh, P.W 13, is a dafâdâr who gave formal evidence and P. Ws. 14, A.N Sarkar, 15, Subedar Tewari, 16, Harendra Nath Biswas and 17, Mohini Mohan Banerji, were police witnesses. Reference has already been made to that part of the testimony of Mohini Mohan Banerji, the investigating officer, in which he mentions the circumstances in which certain words were inserted in the First Information Report.

We consider that the prosecution case was fully established. The evidence was placed very carefully before the jury by the learned Sessions Judge and, as already pointed out, the appellant was in fact given the benefit of certain advantages to which he was not legally entitled. The evidence of Puti Ram Biswas was apparently believed by the majority of the jurors and we consider that they were quite justified in considering that this witness had spoken the truth. The circumstances proved by the other witnesses furnish very convincing corroborative details and there is no doubt that the appellant committed a murder of extreme brutality. We consider that the verdict of the jury was correct and that the appellant has been properly convicted of murder. Having regard to the circumstances and the callous and brutal nature of the crime, we have no option but to confirm the sentence of death which has been passed upon the appellant.

The result, therefore, is that the Reference is accepted and the appeal is dismissed.

Sen, J.:— I entirely agree with my learned brother.

The charge of the learned Judge in this case is full and fair, and I see no material defect therein. The main evidence against the appellant is that of an eye-witness Puti Ram and of certain other witnesses to whom Puti Ram had described what he had seen. I have not the slightest hesitation in accepting what Puti Ram had said to be true. That being so, there can be no doubt that the accused committed this murder. Puti Ram's evidence has been corroborated, as I have said before, by other persons to whom Puti Ram described what he had seen and who immediately chased the accused and subsequently seized him. The murder was a most brutal and cold blooded one, and the only sentence that could be passed in a case of this description is the one which the learned Judge has passed.

I agree with what my learned brother has said about s. 145 of the Indian Evidence Act and s. 288 of the Code of Criminal Procedure. The only justification for my saying anything more about this matter is that the infringements of these two sections have been far too many in the case which have come up before me. I shall say only a few words merely to emphasise what has already been said by my learned brother.

I shall first deal with s. 145 of the Indian Evidence Act. When the evidence of a witness given before the jury is sought to be contradicted by something which he has said on some previous occasion in the course of a statement made by him which has been reduced to writing, the proper course to follow is this the attention of the witness should be pointedly drawn to that portion of the previous statement which is contradictory to his present statement and he should be asked to give such explanation as he thinks proper in respect of the contradiction. It is only after this has been done that portion of the previous statement, which is contradictory to the present testimony, can be proved for the purpose of contradiction. Further, the entire previous statement in which the contradiction appears should not be put in evidence, but only so much thereof as is contradictory to his testimony before the jury. In this case the deposition of Brindaban Mandal, P.W 5, at the previous trial of this accused was put in evidence for the purpose of contradicting some statements of Brindaban Mandal made at the present trial. We find that the entire statement of Brindaban Mandal in the previous trial has been put in. Further we find that the contradictory statements were not expressly put to the witness and he was not given an opportunity of explaining the contradictions. It is not sufficient merely to ask a witness whether he had made a contradictory statement on some previous occasion. He must be given a real opportunity of explaining the contradictions. That is all I need say about s. 145 of the Indian Evidence Act.

I now turn to the law regarding s. 288 of the Code of Criminal Procedure. This section is constantly being misapplied. The idea seems to prevail that whenever a witness says something which is contradictory to some portion of Ms. former statement, the former statement should be put in under s. 288 of the Code of Criminal Procedure. This is not the intention of the section. Once a statement is put in evidence under s. 288 of the Code of Criminal Procedure, it becomes substantive evidence and it can be used for all purposes subject to the provisions of the Indian Evidence Act. The use of statements put in under s. 288 of the Code of Criminal Procedure is not restricted to the purposes of contradiction or corroboration. That being so. Judges should be extremely cautious in applying this section. It is only in very exceptional cases that statements should, be put in under this section. I do not propose to give any exhaustive list of the conditions under which this section should be utilised; but, for the sake of illustrating my meaning, I would say that where a witness resiles entirely or to a very great extent from his previous statement or where a witness has forgotten a great deal of what he had stated in his previous statement, the Court will be exercising a wise discretion in putting in the previous statement under s. 288 of the Code of Criminal Procedure. But merely because the previous statement contains some stray statements which are contradictory to the present testimony of the witness, it is not permissible to put in the entire previous statement under s. 288 of the Code of Criminal Procedure. In this case, the previous statement of Panchu Gopal Biswas before the committing Magistrate was put in under s. 288 of the Code of Criminal Procedure. What Panchu Gopal had said before the committing Magistrate is in all material particulars the same as what he had said before the learned Judge and the jury. There was, therefore, no justification for putting, in the entire statement under s. 288 of the Code of Criminal Procedure.

Further, I would point out that if a statement has been properly put in under s. 288 of the Code of Criminal Procedure and either of the parties wishes to use any portion of that statement for the purpose of contradicting the present testimony of a witness then it would still be necessary for that party to observe the provisions of s. 145 of the Indian Evidence Act by drawing the attention of the witness to the contradictory statement in the previous statement for the purpose of explaining the contradiction.

A.C.R.C

Reference accepted. Appeal dismissed.