The Criminal defamation Case

CBK vs. The Sunday Times

Part III

6th July 1997

Then, on 27.09.1996 too, the accused-editor, in the course of his evidence, had conceded, however guarded or tentative or hesitant the terms in which the concession has been made, telling the CID that the column was written by one writer. To quote:-

Q: But did you not tell the CID that the column was written by one writer?

A: I may have said it but I have stated categorically that the column is a collection of news items put together.

In this answer (giving evidence in court) the accused chooses to slur or pass lightly and deceptively over the question as to whether or not he told the CID that the "column is written by one writer" by saying in somewhat non-committal terms: "I may have said it" thereby neither directly denying nor expressly admitting thus refraining from committing himself to either position - but he emphatically states in evidence; "but I have stated categorically it is a collection of news items - "The intriguing thing is that the accused remembers quite distinctly and vividly a part of his statement and does not remember so well the other part which, in fact, is veritably an integral part of the same statement (to the CID) rather of the same sentence or answer. It looks as if he has a clear memory of events and things, unclouded by passage of time, when they (the facts) favour the case that he now seeks to set up but not of those (facts) that are inimical to his case. He is clearly manipulating his evidence to suit his own ends.

On 27.08.1996 (evidence recorded after lunch) the accused-editor in his evidence had said:

Q: Do you recall that you answered that question: "The column is written by one writer but as I stated earlier news item are collected from different sources?

A: If it is in the CID statement it is correct; I may have said it, this was three days after the news item appeared."

This once again is a virtual, if not a clear, admission that the accused had told the CID that "the column is written by one writer" - however un-willingly the accused had admitted in court, having told so to the CID.

There are several other instances in which the accused-editor conceded, of course, in guarded and cautious language that he told the CID that the "column is written by one writer." To cite one other instance as an illustrative example from the accused’s evidence given on 27.09.1996.

Q: "Do you deny having told the CID that the column was written by one writer?

A: I do not deny but that my recollection is that the column meant was an item in the whole column."

It is interesting to note that this (above) answer" I do not deny...." is the answer that immediately succeeds the answer of the accused (in response to a question whether or not he told the CID that the column was written by one writer) reproduced above at page 58 hereof) wherein the accused had stated just the contrary: "I do not concede; that is not what I have said," and thus admitting in the same breath as he had denied having told the CID that "column is written by one writer." One cannot possibly conceive of evidence more vacillating than this for he (the accused) had taken 2 extremes or said diametrically opposite things - admission coming in the wake of the denial.

The accused-editor had also said in evidence that in his statement to the CID he used the word "column" to mean only "one item" in the gossip column and not the entire gossip column: To quote: "when I referred to the column it might have been one item." Vide evidence of the accused given on 10.10.96 - 10.55 a.m. It looks as if his evidence is, so to speak, experimental for it is so tentative and hesitant and even indefinite. One must be conscious of the fact that the over-all object of these explanations is to whittle down the effect of the accused’s statement to the CID that the "column is written by one writer." - and this aspect, that is as to what the accused, in fact meant by the term "column" in his statement to the CID that is, whether the accused meant the gossip column or just "one item" of news therein (in the gossip column) will be considered later on this judgment. On 27.09.1996 (12 noon) as well, the accused had stated thus:-

Q: "Do you deny having told the CID that the column was written by one writer?

A: I do not deny but that my recollection is that the "column" meant was an item in the whole column."

In other words, by the above answer, what the accused is seeking to show is that, inasmuch as in his CID statement, which was as follows:- "The column is written by one writer" - the word "column" was meant to refer to just one item or one item of news in the whole gossip column - he (the accused) could not be taken, by the above statement to have told the CID, that the gossip column was written by one writer or the word "column" in the above statement to the CID cannot be interpreted to mean the entire gossip column.

Then, giving further evidence on 10.10.1996 (time 10.55 a.m.) the accused had once again, under the stress of cross-examination, could no longer withhold the truth and had to concede, willy-nilly, that he told the CID that the "column is written by one writer."

Q: Do you deny you told the police that the column is written by one writer?

A: I do not deny it in the sense that it is recorded so, if one answered to a question.

On 27.09.1996 (evidence commencing at 12 noon) the accused had said:

Q: When you were questioned by the CID you have told the CID that the column was written by one writer?

A: It is recorded so."

On 11.10.1996 (evidence commencing 10.55 a.m.) the answer of the accused-editor to the same question had same tendency as those (answers) reproduced above for he (the accused) answered thus in the same strain:

Q: The answer you have given to the CID is as follows: "The column is written by one writer but as I stated earlier the news items in the column are collected from different sources?

A: That is the way it is recorded."

In the above answer of the accused there is a clear insinuation or an oblique suggestion that the accused did not tell the CID that:" the column is written by one writer" - but that what he told the CID had been wrongly or improperly recorded for as pointed out above the answer of the accused was; "that is the way it is recorded."

It must not be lost sight of that the accused-editor is not only a journalist but also a lawyer and in court he had admitted that he read the statement that he made to the CID before he signed it. To quote: "I read the statement before I signed."

On 10.10.1996 when the accused was questioned in court as to whether he told the CID that the "column is written by one writer" the accused said: "I have accepted with some reservation."

On the same question, when cross-examined in court, whether or not the accused told the CID that "the column is written by one writer" he had given a bewildering array of answers, (as somewhat, of a compliment or addition to those already reproduced above) some of which were as follows:- On 11.10.1996 (10.55 a.m.)

Q: You have stated in that answer that the gossip column is written by one writer?

A: The gossip column is written by one writer.

I have said so there is some confusion as I said earlier."

On the same date the accused had said:

Q: "Do you deny having told the CID that the column is written by one writer?

A: I deny that I cannot say..."

On the same date (11.10.1996 - 11.30 a.m.)

Q: You told court that you deny that you told the CID that the column is written by one writer?

A: I do not say that I deny: I could not have said that."

The above answer betrays or rather portrays the dire straits to which the accused was reduced in finding an answer to the all-important question, and perhaps, no answer could have been more self- contradictory than that.

On the same date 11.10.1996 - (11.30 a.m.) the accused had also stated as follows:

Q: Do you deny having said that to the CID?

A: Yes, I deny having said that; right now I cannot recall the exact words I said at that time. I can neither deny nor admit whether I told that to the CID. I told the CID that column is written by one writer."

Q: If it is recorded in the proceedings in court that a short while ago you said that you deny having said that to the CID that the column is written by one writer that would be incorrect?

A: I have qualified that."

On the same date (12.35 p.m.) the accused-editor repeated, more or less, the above answer in the following terms:

Q: You are unable to say whether you said it or not that the gossip column is written by one Person?

A: That is my final position. I am unable to say."

It is hardly conceivable that it is within human capabilities to give any more explanations than that or more versions and variations than those that had, in fact, been given by the accused, in regard to the question whether or not he told the CID that "column is written by one writer."

Then on 13.08.1996 the accused had said:

Q: Did you tell the Police (CID) that the column is written by one writer?

A: I cannot recollect whether I said so."

Of one thing one can be sure if of no other, that is, that the accused’s explanations in this regard although lacking in uniformity and consistency more than compensate for that deficiency by the charm of their variety-if not diversity.

On 13.08.1996 (after the lunch-interval) the accused had said:

Q: If you have told the police that the column is written by one writer, is it correct or false?

But the answer evades the question and is in the following terms:

A: I would have also said it was a collection of articles.

(In the above answer, perhaps, the accused did not have the confidence in himself to deny that he ever told the police that the gossip column was written by one writer - obviously because he was conscious of his own true thoughts in the matter.)

Thus, the denial of the accused-editor, (for he had expressly denied) that he ever told the CID that the "column is written by one writer" - (vide the relevant excerpt of his evidence above at page 58 hereof) is so ridiculous and it falls, so to speak, of its own volition, in the main, for the 3 reasons designated (a) (b) and (c) enunciated below:

(a) It will be readily seen from the above - that the answers or explanations given by the accused- editor in regard to the question whether or not he told the CID that "the column is written by one writer" - represent a veritable medley of mutually inconsistent positions which, as a general rule, is a signal quality of evidence based on false pretences and in this instance too, one need not be backward, in the least,in concluding that - that generalisation will hold good for it is as plain as plain can be that this disorderly and confused hotchpotch of answers or explanations is an end-product of an effort on the part of the accused- editor to camouflage, by means of evasion, if not untruth, his statement to the CID: viz.," column is written by one writer."

(b) It had been brought into prominence above in this judgment the fact that the accused had admitted in somewhat veiled if not, in definite terms (in numerous contexts in the course of his evidence under cross-examination reproduced above) that "the column is written by one writer-" although he had, at the same time adduced diverse explanations seeking to reduce the force and significance of that statement to the CID - so that on the accused’s own showing or admission in evidence it must be held that he had, undoubtedly, told the CID that the column is written by one writer" - which makes the accused’s denial (in court) of that statement to the CID wholly untenable.

(c) In any event, against the background of the accused’s evidence reproduced above as well but which calls for repetition below (in this context too) - the court is driven forcibly to the conclusion that the accused, in fact, had told the CID that: "the column is written by one writer". To reproduce the relevant excerpts of his evidence which the accused gave, (be it noted towards the ending of his evidence) when he knew he was forced into a position allowing no escape but had to give evidence which approximated to the true position if, in fact, it was not the truth. To reproduce the relevant evidence of the accused (given on 28.10.1996 - 10.10 a.m.)

Q: Now the different stories in that particular column were given by one person or a number of reporters?

A: "It was given by a number of reporters."

On 30.10.1996 (11.18 a.m.) the accused had stated: "One writer puts together various items collected from various sources."

Q: So that basically gossip column is a composition of one writer?

A: "Yes it is one writer who puts them together (30.10.1996 - 11.18 a.m.)"

On the same date (30.10.1996 - 11.18 a.m.) the accused had said in evidence:

Q: In other words the gossip column is a composition of one writer?

A: "It is a composition of one writer. One writer puts together such news items and makes one composition."

Q: And that one composition is the gossip column?

A: Yes. That one composition is the gossip column."

On the same date (30.10.1996 - 11.18 a.m.) the accused had also said:

Q: The gossip columnist makes one composition of various news items supplied by various reporters. Is that not so?

A: "The gossip columnist makes one composition of various news items supplied by various reporters."

What does the above evidence of the accused mean in practical terms? It means only one thing viz., that the gossip columnist who wrote or composed the entire relevant gossip column was "one writer." The above evidence (of the accused himself given on 28.10.1996 and more particularly on 30.10.1996) taken by itself, without more, justifies the assumption - rather the finding that the accused-editor did, in fact, tell the CID that: "the column is written by one writer", for the accused in his evidence, at long last and after much vacillation and delay virtually or for all practical purposes (though perhaps, not in name) come to the identical position as had been stated by him to the CID, viz., "the column is written by one writer" - although the accused took a tortuous and involved path to reach the virtually the identical position (as he had stated to the CID) and wasted a lot of time seeking to split hairs and make over-subtle distinctions with a view to clouding the real issue and thereby falsely creating an impression that the relevant gossip column was written by "several writers" - which, as pointed out above, was the position the accused had taken in his evidence on 13.08.1996 - that is nearly, 10 weeks prior to 30.10.1996 (excerpts of the accused’s evidence given on the latter date (30.10.1996) reproduced above at page 73 hereof being, for all practical purposes, final proof of the fact that the gossip column was written by "one writer."

Of course, even as late 28.10.1996, the accused sought to persist in the same position as he had enunciated on 13.08.1996 by seeking to misrepresent the true factual position, as though by force of habit, by stating:

Q: Was the gossip column P3 dated 19.02.1995 written by one writer?

A: "No it was not written by one writer, but by several writers," (28.10.1996 - 12.40 p.m.)

In the light of the accused’s evidence itself given on 28.10.1996 and 30.10.1996 respectively (excerpts of which were reproduced copiously above at page 73 & 74 hereof) where he said: "one writer puts together various items collected from various sources" and also where the accused said in evidence: "Gossip Columnist makes one composition of several articles supplied by various reporters" - one does not require much imagination or discernment to conclude for sure or with absolute certainty that the accused did tell the CID that the "column is written by one writer" - for a very thin partition, if not an illusory one, if at all, divides the import (meaning) of the statement to the CID wherein he had stated: "The column is written by one writer" - and his evidence in court (reproduced above) but which call for repetition in this context as well, for the sake of emphasis: "One writer puts together various items collected from various sources" (30.10.1996 - 11.18 a.m.)

You cannot alter a fact by calling it by some other name or words for that fact will remain the same by whatever name you choose to call it. Because of what the accused had stated in evidence in regard to the question whether he told the CID that: "the column is written by one writer" - and also with regard to the question as to how the gossip column was composed - The relevant excerpts of his evidence being reproduced above) one need not be the least backward in holding or certain that the accused had said in his statement to the CID: "column is written by one writer."

To deal with the 2nd false position or the false statement made by the accused-editor in the course of his evidence (referred to above at page 55 hereof) which was designed to persuade the court to believe that the relevant gossip column (in question) was written or composed by several writers, - the accused- editor had also stated in evidence that by the term "column" that occured in his statement to the CID, wherein the accused had stated: "column is written by one writer" - he meant not the entire gossip column but that the term "column" was used by him to mean only one "item" in the column (and not the entire gossip column.). The accused’s position in court (at one stage) was that inasmuch as he (the accused) in his statement to the CID (viz., "the column is written by one writer") had used the word "column" to mean only "one item" in the gossip column and not the whole column - he (the accused) could not be taken to have told the CID that the (entire) gossip column was written or composed by one writer. To quote from the accused’s evidence (10.10.1996): "... when I referred to the column it might have been one item." On 27.09.1996 (12 noon) also the accused had given the same explanation, (amid innumerable others) in the following terms:

"Q: Do you deny having told the CID that the column was written by one writer?

A: I do not deny but that my recollection is that the column meant was an item in the whole column."

This explanation, on the very face or look of it, has a strained and artificial and false air about it for in common parlance, or for that matter in any parlance, you don’t use the term column to mean one item in a column for particularly in relation to newspapers when one speaks of a column one usually has in mind a column such as the personal column, obituary column, the gossip column and the like and in the context in which that statement had been made by the accused it is as plain as plain can possibly be that by the word "column" the accused had intended to mean or refer to the gossip column in its entirety. And by the term "column" one means, in popular usage and in common parlance, the part of a newspaper devoted to a particular subject, very often, written by one regular writer or columnist - although the "word column" can also mean,in an etymological sense, the vertical division of the page in the newspaper or any printed matter - which was certainly not the sense in which the term "column" had been used by the accused in his statement to the CID. Nor did the accused say so in his evidence in court that he used the word "column" to mean the vertical division of a page.

In fact, the relevant excerpt of the accused’s statement to the CID was as follows: "The column is written by one writer but as I stated earlier the news items in the column are collected from different sources."

It is to be observed that the accused-editor had on several occasions, under cross-examination, admitted having made the said excerpt of the statement to the CID although he had sought to whittle down the force and significance of it by means of diverse explanations that had been dealt with in this judgment above. To quote from the accused’s evidence with a view to pointing out one or two such instances where the accused had admitted making that excerpt of the statement to the CID:

Q: In that answer you have stated: "the column is written by one writer but as I stated earlier news items in the column are collected from different sources."

A: Yes. (10.10.1996 - 10.55 a.m.)

Then on 27.08.1996 (after the lunch interval) the accused had said thus:

Q: Do you recall that you answered that question as follows: "The column is written by one writer but as I stated earlier news items in the column are collected from different sources?

A: If it is in the CID statement it is correct; I may have said so, this was three days after this news item appeared."

In this regard the fact that the accused-editor in the course of his evidence had admitted that he signed the statement to the CID as correct after reading it over, also calls for remark. To quote:

"Q: And that statement you read it over and signed it as correct?

A: Yes."

And the accused himself, when cross-examined, thereon, i.e. on his statement to the CID wherein he had stated: "the news items in the column are collected from different sources" - had said thus:

Q; What is the column in which news items collected from different sources are embodied; what is that column?

A: Obviously referring to the gossip column.

Q: It is that column that contains this news items?

A: Yes. (10.10.1996 - 2.45 p.m.)

This is a clear admission by the accused whilst giving evidence in court that in his statement to the CID the word "column" meant, to use the accused’s own words: "obviously referring to the gossip column". There is no doubt the accused had given evidence after his own fashion but nobody will fail to notice that the distinctive character of his evidence is that it often fluctuates betwen two extreme positions which are inherently irreconcilable - for the accused had earlier (as pointed out above) said that the word "column" in his statement to the CID meant only "one item" of news in the gossip column but now has stated that the term "column" "obviously" meant the gossip column.

It has been pointed out above at page 78 hereof that the accused-editor had stated in evidence (in one instance) that in his statement to the CID the term "column" meant only one item in the whole gossip column.

Having said thus on 10.10.1996 i.e. what the term "column meant was an item in the whole column" - and being never at a loss for explanations, the accused had, so to speak, run berserk with them (explanations) and had given another explanation on the succeeding day or on the very next day (i.e. 11.10.1996 - 10.55 a.m.) which may properly be called a variant of the above explanation, the gist of which variant was that the term "column" was used by the accused-editor in two senses in same sentence i.e. in the sentence that occured in his statement to the CID the relevant excerpt of which was as follows:- "The column is written by one writer but as I stated earlier the news items in the column are collected from different sources."

To reproduce the relevant excerpt of the accused’s evidence in this regard:

"Q: Are you saying in the same statement the word "column" appears in two places and have two different meanings?

A: Yes.

Q: In that answer the word "column" appears in two places.

A: Yes.

Q: What you now say is that in that answer the news items in the column is the gossip column?

A: That is correct.

Q: When you used the word "column" for the first time in that answer, the word "column" occurs in two places when you said the column is written by one writer; what you say is in that part of the sentence the "column" does not refer to the gossip column?

A: Yes, if I have said it in that way.

Q: Can you kindly read this answer and tell me when you used the word "the column is written by one writer" in what sense you used the word?

A: There had been some confusion in the recording of my answer; here the column means one column."

Q; In the first of that answer the "column" is used as one item?

A: Yes."

In this context it will conduce to clarity if I reproduce the relevant excerpt of the accused’s statement to the CID which is as follows: "The column is written by one writer but as I stated earlier news items in the column are collected from different sources."

What the accused now states is that in the first part of the above sentence (statement) that is, when he told the CID: "The column is written by one writer" - he (the accused) used the word "column" to mean just "one item" of news and that when he used the word "column" in the latter part of the same sentence (statement) that is, when he said: "the news items in the column are collected from differnet sources" - the word column was intended to mean the entire gossip column. This explanation goes too far in that it goes beyond the limits of reason and it is no exaggeration to say that this explanation, with a partial change from the previous explanation is an extravagantly fanciful explanation which is unreal if, in fact, it is not un-realistic.

I do not think that I need to do anything more than refer to the relevant excerpt of the statement to the CID, reproduced above, to show that in that statement - by the term "column", in both parts of that sentence, the accused had clearly intended to mean nothing else than the entire gossip column. It is so crystal clear and one does not have to labour the obvious.

And the accused had admitted, in the course of his evidence, that in the latter part of that sentence - that is, when he spoke of the "news items in the column" - the term column "obviously" meant the gossip column. That being so, in the first part of that sentence too, i.e. when he said "the column is written by one writer" - the accused manifestly intended to refer to the entire gossip column for he (the accused) had in contemplation the "column" that he had referred to earlier on in the same sentence - when he used the same term "column" in the latter part of the same sentence. Thus the column contemplated in both parts of the same sentence being one - in the light of the accused’s admission that it was used in the 2nd part (of the sentence) to mean "obviously" the gossip column - that term must necessarily have the same sense and mean the gossip column in the first part of that sentence as well, i.e. when he told the CID: "The column is written by one writer." To the numerous points cited above as strikingly telling against versions (defences) of the accused: viz., that the word "column" meant "an item in the whole column" or that the term ‘column" was used (in the CID statement) in two senses in the same sentence - one last point remains to be added as a clincher. It is this:

The accused-editor in his evidence, on 27.09.1996 (12 noon) had stated, to use his own words,".... but my recollection is that the column meant was an item in the whole column." But when questioned in court as to whether he told the CID that: "the column is written by one writer" - he had said in evidence on 13.08.1996" ."...I cannot remember whether I used the word column" - and on the same date (13.08.1996): "I cannot recollect whether I have said so" - and on 10.10.1996 (10.55 a.m): "I cannot recall the background in which it was given." and on 11.10.1996 (11.30 a.m.): "... right now I cannot recall the exact words I said at that time. I can neither deny nor admit whether I told that to the CID".

The question is: if the accused "cannot remember" whether "he used the word column" in his statement to the CID and if he can "neither deny nor admit" whether he said so to the CID and even "cannot recall the words" he used how can he say that his: "recollection is that the column meant was an item in the whole column?" How can one remember the sense in which a word was used if he "cannot even recollect" having used it?

It remains to deal with the statement (designated (iii) above at page 56 hereof) made in the course of evidence by the accused whereby too he had, somewhat artfully, sought to show falsely that the relevant gossip column was written by several columnists or writers and not by one. At one stage, in the course of his evidence the accused-editor sought to make it appear that even to the CID he had stated that the gossip column was written by several writers and he pointed to the following sentence in the (accused’s) CID statement: "Gossip columnist is not always one single person."

The accused stated in evidence, in several instances, that by the above sentence, in the CID statement he meant to say that the gossip column was written by several writers on any one single occasion as was the relevant gossip column of 19.02.1995 marked P3. To cite just one instance where the accused had said so:

Part IV

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