The court clarified the procedure for contradicting the evidence of prosecution witnesses at trial with statements made to the police during investigation, emphasizing the need to draw the witness's attention to the contradictory statement, question them about it, and, if denied, call the investigating officer to prove the statement.

Phukan, J. :- I had the advantage of going through with profit of the judgement and order of my learned brother Y.I. Singh, J. and I agree that the present appeal has merit and the impugned order of conviction and sentence has to be set aside. However with respect I am unable to agree that the contradictions of the statements of the witnesses before the investigating officer and in the witness box has to be discarded in view of the reasons given in para 12 of the main judgement. I record my reasons for the above disagreement as follows :-

2. My learned brother in discarding the above contradictions has placed reliance in Tahsildar Singh v. State of U.P., AIR 1959 SC 1012 and Pangi Jogi v. State of Orissa, AIR 1965 Ori 205.

3. In Tahsildar (supra) the Apex Court considered the provisions of S.162, Cr.P.C. as it stood prior to the amendment of 1955. In the last sub-para of para 10 of the report the Apex Court stated the reasons for not considering the amended S.162 brought about by the amending Act of 1955. It is not necessary for the present purpose to quote the said S.162 prior to the amendment of 1955 and also the amended section and it is also not necessary to quote S.162, Cr.P.C. of the new Criminal Procedure Code, 1973. It may, however, be noted that prior to 1955 copy of the case diary including the statements recorded by the police during investigation were not supplied to the accused. Sea change has taken place and under the new Cr. P.C. the entire case diary is with the trial court and the copies are supplied by the court to the accused. In Tahsildar (supra) the controversy was whether the omission by a witness in his statement before police during investigation is a contradiction or not. This point has been set at rest by the legislature by giving an explanation to S.162, Cr. P.C., 1973. From the perusal of the report of the Apex Court I do not find that any particular procedure was laid down by the Apex Court for the purpose of taking out the contradiction during trial.

4. Reading S.162, Cr. P.C., 1973 and S.145 of the Evidence Act it is clear that a witness can be confronted with his earlier statement made to the investigating officer for bringing out contradictions. A Division Bench of this Court had occasion to consider his matter in the State v. Md. Misir Ali, AIR 1963 Assam 151, and the procedure for bringing out the contradiction is quoted below (Para 17) :

"......... If it is intended by an accused to contradict the evidence given by a prosecution witness at the trial, with a statement made by him before the police during the investigation, the correct thing to do is to draw the attention of the witness to that part of the contradictory statement, which he made before the police, and question him whether he did in fact make that statement. If the witness admits having made the particular statement to the police, that admission will go into evidence and will be recorded as part of the evidence of the witness and can be relied on by the accused as establishing the contradiction if, on the other hand, the witness denies having made such a statement before the police, the particular portion of the statement recorded under S.162, Criminal Procedure Code should be provisionally marked for identification, and when the investigating officer who had actually recorded the statement in question, comes into the witness box, he should be questioned as to whether that particular statement had been made to him during the investigation, by the particular witness, and obviously after refreshing his memory from the Police Case Diary the investigating officer would make his answer in the affirmative. The answer of the investigating officer would prove the statement which is then exhibited in the case and will go into evidence, and may, thereafter, be relied on by the accused as a contradiction. This is the only correct procedure to be followed, which would be in conformity with S.145 of the Evidence Act." (Emphasis supp