The judgment established the limitations of using statements under Section 162, Criminal P.C to contradict witness testimony and emphasized the importance of verifying omissions from the record in a case diary.

Horwill, J.

1. The appellant has been convicted by the learned Sessions Judge of Trichinopoly of the murder of his daughter-in-law, Sellayi, at about 1 p.m. on 29th June 1943, and sentenced to death. P. Ws. 3 and 4, the brother and sister respectively of the deceased, claim to be eye-witnesses. They say that the appellant had been frequently coming to their house and asking the deceased, their sister, to come and live with him. She had consistently refused to do so. On the day of the offence, at about noon, he twice asked their sister to come to his house; but she again refused. Thereupon, the accused came with a spear and stabbed her on her cheek with such force as to cause the stick to break off. Seizing the spear head with his hand, he stabbed the deceased in the abdomen and other places. She rushed into the street and dropped down dead. P.W. 3 at once went off to fetch P.W. 8, a respectable neighbour, who, upon seeing what had happened, went to the house of the accused, seized him, and tied him up. There were many persons living in the neighbourhood; and some of them have deposed that upon hearing the cry of the deceased they came running to the spot and saw the deceased woman lying near her house stabbed to death. P.W. 7 asked P.W. 4 what had happened; and she replied that her uncle (appellant) had stabbed the deceased. The evidence of P.W. 8 is important. He came at once upon being called by P.W. 3 and after he had seen the body, went with others to the house of the appellant and asked him why he had stabbed the deceased. The appellant replied that she had not been behaving properly in the family and so he had stabbed her. They tied up the appellant in the chavadi and went and informed the village Magistrate, who lives a mile and a half away. The village Magistrate P.W. 9 came and then reported the matter to the police.

2. The evidence of some of these witnesses is sought to be discredited because certain statements made by them during the course of their examination in the Sessions Court do not appear in the case diary of the police. P.W. 13, the police officer who conducted the investigation, is one of those foolish investigating officers who think the law requires of them that they should record verbatim what every person says to them; and so when they are asked in cross-examination by the counsel for the accused whether such and such a witness made such and such a statement, they refer to their case diary and if it does not find a place there, they at once say that the witness did not make that statement. It is most unlikely that P.W. 13 remembered whether P.W. 6 and P.W. 8, about whose statements he was questioned, made the statements referred to; and so we presume that merely because these unimportant particulars do not find a place in the summary of the statements of those witnesses recorded in the case diary, the witness said that they did not make those statements. We think it desirable that the Judge should ask such police witnesses when they give answers of this kind, whether they are speaking from memory, or whether they have given the answers they have merely because the statements do not find a place in the case diary. All that investigating officers are expected to do is to make a short record of what the witnesses examined by them have said. They are not expected to record the unimportant details given by witnesses; and so the absence of such details in the case diary is no proof at all that the statements were not made by the witnesses. 1 agree with my learn-(ed brother that a Court should permit a statement recorded under Section 162, Criminal P. C, to be used for the purpose of proving an omission only when it is sure that the omission could not have occurred if the statement had really been made. The passage from Queen-Empress v. Naziruddin (1994) 16 All. 207 extracted by my learned brother in his judgment needs very careful consideration in this connexion.

3. There is no reason to doubt the evid