Criminal Trial-Police Statements Use of--Omission, when amounts to contradiction-Code of Criminal Procedure, 1898 (V of 1898), s. 162-Indian Evidence Act, 1872 (1 of 1872), s. 145.

A music performance attended by a large number of persons including two police informers Bankey and Åsa Ram, was going on on a platform in front of the house of one Ram Saroop. At that time there was a full moon and the light of a gas lamp and several lanterns. The informers had placed their guns on a cot close to the platform and one Bharat Singh was sitting on that cot. The accused along with 15 or 20 persons suddenly arrived armed with fire arms to kill the informers and stood behind a well on the southern side, from where they shouted that no one should run away and advanced firing shots. Two persons were killed on the spot. Bharat Singh was hit and he ran northwards pursued by the culprits and was also shot dead. The culprits turned over the dead bodies and on seeing Bharat Singh's face they exclaimed that Asa Ram informer had been killed. They then passed in front of Ram Saroop's house and disappeared. While going they carried away Bankey's gun from the cot. The appellants and seven others were sent up for trial for this occurrence. At the trial the defence alleged that prosecution had developed its case. The police statements of the eye witness did not mention the facts regarding the scrutiny of the dead bodies and the presence of the gas lantern, and the defence counsel put the following two questions with respect to these omissions to the first eye witness produced:-

1. "Did you state to the Investigating Officer that the gang rolled the dead bodies of Nathi, Saktu and Bharat Singh and scrutinised them and did you tell him that the face of AsaRam resembled with that of the deceased Bharat Singh ?"

2. "Did you state to the Investigating Officer about the presence of the gas lantern?"

The Sessions Judge disallowed the questions and on account of this order similar questions were not put to the other eye witnesses. The Sessions Judge convicted the appellants under s. 302 Indian Penal Code and sentenced them to death. The appellants appealed to the High Court and made an application alleging that the Sessions Judge had not allowed the defence counsel to put omissions amounting to material contradictions to the eye witnesses and prayed that the eye witnesses be summon- ed so that the questions disallowed may be put to them.

Though the High Court held that the omissions amounted to contradictions and that the Sessions Judge had wrongly dis- allowed cross-examination with respect thereto, it found that even after ignoring these two circumstances there were other facts which showed that the culprits had come close to the eye witnesses and that they had unmistaken opportunity of identifying the appellants in the light of the full moon and the lanterns. The High Court accordingly dismissed the application for summoning the eye witnesses holding that no prejudice had been caused to the appellants by the disallowance of the cross-examination in respect of omissions and also dismissed the appeals and confirmed the convictions and sentences of the appellants.