Abstract
The statements of witnesses to a crime are recorded by the investigating officer
under section 161 CrPC by examining them as to what they know about the case.
The statement given by the witness under section 161 CrPC should not be signed
by him as mandated in section 162 CrPC. The procedures involved in connection
with recording of statements under section 161 CrPC are many and almost all of
them have been discussed here. Further, there is a lot of scope for manipulation
by the investigating officers in course of recording the statements under this
section sometimes leading to the implication of innocent persons and in other
cases resulting in exoneration of the real accused persons.
Statement of Witness to Police
Introduction
Under Section 161 of the Code of Criminal Procedure, 1973 (CrPC), the
investigating officer shall interview any person who is believed to be familiar
with the facts and circumstances of the case under investigation and shall
abridge the statement made to him in writing. The statement made under this
section cannot be used as substantive evidence before Court.
The witness statements recorded by a police officer under section 161 of CrPC
during an investigation cannot be used as a substantive piece of evidence. It
cannot be used except for purposes of contradiction under Section 145 of the
Indian Evidence Act, 1872. Where any part of such statement is used part of it
may also be used in examination for the limited purpose of explaining any matter
raised in cross-examination.
The only other exception to this restriction is
where the statement is recorded under Section 32(1) or Section 27 of the Indian
Evidence Act, 1872. The restriction created by section 162 does not apply in
proceedings under section 32 and 27 of the Indian Evidence Act, 1872 or in civil
proceedings and statements made before the police officer during the
investigation may be used as evidence in such proceedings, if it is relevant
under the Indian Evidence Act, 1872.
A very popular defense that a witness tends to use when the other party pleads a
contradiction in the witness's statement is that there were threats and
inducements that caused him to make that statement.
Section 161 CrPC
- Any police officer conducting an investigation under this chapter, or
any police officer not below such rank as the State Government may by
general or special order direct for the purpose, acting at the request of
such police officer, may orally examine any person, who is aware of the
facts and circumstances of the case.
- Such person shall answer truthfully all questions relating to such
matter put to him by such officer, except questions the answer to which
would expose him to criminal charge or penalty or forfeiture.
- A police officer may note in writing any statement made to him during an
examination under this section; and if he does so, he shall prepare a
separate and true record of the statement of each such person whose
statement he records.
The statements made pursuant to this sub-section may also be recorded by
audio-visual electronic means. Statement by a woman against whom an offence
under section 354, section 354A, section 354B, section 354C, section 354D,
section 376, section 376A, section 376B, section 376C, section 376D, section
376E or section 509 of the Indian Penal Code is alleged to have been committed
or attempted will be recorded by a policewoman or any woman officer.
A written statement sent by post or delivered by another person cannot come
under 'oral examination' but a written statement produced by the I.O.'s witness
himself, and if the I.O. is assured of its authenticity and reduced it in
writing, the statement shall be deemed to be properly recorded in accordance
with section 161 CrPC.
Section 162 CrPC
- A statement given by any person to a police officer during an
investigation under this Chapter shall not be signed by the person
giving it; no such statement or any record thereof, whether in a case
diary or otherwise, nor any part of such statement or record shall be
used for any purpose, except as provided below, in any inquiry or trial
in connection with any offence under investigation at the time such
statement was made:
Provided that when any witness is called for the prosecution in such inquiry or
trial, whose testimony has been reduced to writing as aforesaid, any part of his
testimony may, if properly proved, be used by the accused and with the consent
of the court by the prosecution to contradict such witness in the manner
provided in section 145 of the Indian Evidence Act, 1872; and when any part of
such statement is so used, any part thereof may also be used in the
re-examination of such witness, but only for the purpose of explaining any
matter raised in his cross-examination.
- Any statement falling under the provisions of section 32 (1) of the
Indian Evidence Act, 1872 or the provisions of section 27 of the said
Act shall not be affected by anything contained in this section.
Section 163 CrPC
No police officer or other person in authority shall offer, make or cause to be
offered or made any such inducement, threat or promise as is provided in the
Indian Evidence Act, 1872. But no police officer or other person shall, by any
warning or otherwise, prevent any person from making any statement during an
investigation under this chapter which he may make of his own free will:
Provided that nothing in this subsection shall affect the provisions of section
164.
Objective of Section 161 CrPC
The object and purpose of section 161 is to gather evidence of the commission of
a crime by examining and recording the statements of witnesses in connection
with the commission of a crime. Section 162 CrPC mandates that a statement made
under section 161 CrPC should not be signed; it is the duty of the investigating
officer to note down the statement of the witness being examined.
The word "may" used in Section 161 CrPC gives discretion to the police officers
to interview any person orally and reduce to written form any statement made to
him; therefore, he is entitled not to reduce to written form the whole statement
made to him, or he can reduce to written form only the content of the statement.
The only object of the declaration according to section 161 of the CrPC is to
investigate allegations and prepare a case diary for the purposes of court
review at the cognizance and summons stages, and to use the same for
contradiction of the witness during the trial of the case.
Each police officer conducting the investigation is accredited in the
investigation process according to Section 161 of the CrPC and authorized to
orally examine any person who is presumed to be familiar with the facts and
circumstances of the case and to record the statements of witnesses.
These
orders are mostly called declarations under Section 161 CrPC. The task is to
gather evidence against the accused. After the charges are filed, these
statements will also be scrutinized by the court to take cognizance of the
offence. Such a statement can only be used to contradict a witness in the way
provided in section 145 of the Indian Evidence Act, 1872.
Section 145 of the Indian Evidence Act, 1872
A witness may be cross-examined as to previous written statements made by him or
reduced to writing and relating to the matters in question, without such
writings being shown to him or being proved; but if he is to be contradicted by
writing, his attention must, before the writing can be proved, be directed to
those parts of it which are to be used to contradict it.
The term statements appearing in section 161 of the CrPC refers to those that
the police, as part of the investigation record, and their use is regulated by
section 162 of the CrPC. While the term prior statement occurring in section 145
of the Indian Evidence Act, 1872 is not limited to statements recorded by the
police but also includes other prior statements made by a person deposing as a
witness in a trial.
In
Dharma Ram Bhagare v. St of MH - AIR 1976 SC 476, a three-judge bench of the
Supreme Court held that an FIR is a prior statement and can be used to
corroborate or contradict its maker but cannot be used as substantial evidence
because it is presented to the police without oath or cross-examination.
Copy of Statement Under 161 (3) CrPC Not Supplied to the Accused
As a rule, the accused must be provided with statements recorded in accordance
with section 161 (3) of the CrPC. Withholding the same would violate the
principles of fair trial and 6 of the 13 accused will not be able to use the
statement for any purpose.
However, a police officer/investigating officer under
section 173(6) CrPC may request the court not to give a specific statement or
part of a specific statement to the accused, by properly stating the reasons why
such a request is made. The court then has the authority not to provide these
statements to the accused in compliance with section 207 of the CrPC. Statements
that the police can withhold are listed in section 173 (5) (b) of the CrPC.
Dharambir v. CBI – 2008 Law Suit (Del) 66
Omission and Contradiction
The dictionary meaning of the word "contradiction" is 'to offer the opposite'.
If a person examined by the police according to Section 161 of the CrPC has
stated a certain fact in a certain way and presents this fact in a different way
before the court, it is a contradiction between the statement made before police
and the statement made before the court and is referred to as a contradiction.
Therefore, a statement to the police can be used to contradict a witness.
Omission means to exclude or omit something. If a witness does not state a
specific fact before the police and states this fact for the first time in court
during the trial, this is an omission.
Statements recorded by the police under section 161 CrPC can be used for the
limited purpose of contradicting a prosecution witness under section 145 of the
Indian Evidence Act, 1872 and can be used either by the defense or the
prosecution with the permission of the court. Furthermore, a statement not
reduced to writing by a police officer cannot be used for contradiction.
Omissions and contradictions relate to the witness's previous statement. Missing
to state something from the earlier statement is called omission. Contradiction
means stating something different from the previous statement. Omissions and
contradictions stand in the way of inspiring confidence in the evidence. The
most relevant provisions in this regard are Section 145 of the Indian Evidence
Act, 1872 and Section 162 of the Code of Criminal Procedure, 1973.
In the event that a witness testifies in court that a certain fact exists
without stating it before the police; it is a discrepancy between the statement
made before the court and the statement made before the police. That's a
contradiction. The statement to the police can therefore be used against his
testimony in court.
An omission to state a fact or circumstance in a statement referred to in
sub-section (1) of section 161 CrPC may constitute a contravention if the same
appears material and otherwise relevant having regard to the context in which
such omission occurs and whether any omission constitutes a contravention in the
particular context is a matter of fact.
When a witness testifies or gives evidence in court under oath, he is expected
to tell the truth in court. If a person testifies in court completely contrary
to what he testified before the police as a witness, then this is usually called
a contradiction.
Omissions in a statement to the police cannot be considered and used as a
contradiction to evidence given in court. State of Maharashtra Vs. Nababai Abdul
Hasan, 1989 Cri LJ 1283
In the case of State Rep. by
Inspector of Police v. Saravanan AIR 2009 SC 152,
it was held that the contradictions/omissions must be of such a nature as to
materially affect the trial. Minor contradictions, inconsistencies,
embellishments or enhancements that do not affect the merits of the
prosecution's case should not be grounds for rejecting the witness's evidence as
a whole.
In
Shyamal Ghosh v. State of West Bengal 2012 All. S. C. R, 1921, it was held
that the omission to state whether there is a material contradiction or not is a
question of fact. It is left to the discretion of the court to determine whether
it is a contradiction or a material contradiction which renders the entire
witness evidence unreliable and significantly affects the prosecution case.
Statements recorded by the police under section 161 CrPC can be used for the
limited purpose of contradicting a prosecution witness under section 145 of the
Indian Evidence Act, 1872 and can be used either by the defense or the
prosecution with the permission of the court. Furthermore, a statement not
reduced to the writing of a police officer cannot be used for contradiction.
In a case reported in AIR 1958 Bom 225,
Syyed Husan vs State, their Lordships
held that the right and proper way to prove a contradiction or omission is to
ask the investigating officer in his evidence whether the particular statement
was made by the witness before him.
If such a procedure is not adopted, it
cannot be said that there was evidence that the witness did not actually make
the statement in question. It is for the trial judge in each case, after
comparing the part or parts of the statement recorded by the police with the
statement made in the witness box, having regard to the above principles, to
decide whether the point of justification to be used for the contradiction meets
the requirements of the law.
The part of the written statement which the party wishes to contradict must be
confronted with the witness who made it and must be recorded in
cross-examination. If the witness admits that he gave this part of the statement
to the police, then the contradiction thus recorded on cross-examination is
complete and will be read in the evaluation of the evidence.
If a witness denies
making a statement to the police that a party wishes to contradict, this must be
marked and recorded in the witness statement. Finally, when the investigating
officer comes to depose, then the investigating officer must be confronted with
the marked part and his response recorded, and then the contradiction is
complete.
In the case of
State of U.P. v. Harban Sahai (1998), a special leave application
was filed challenging the decision of the Allahabad High Court acquitting four
persons accused of murder. One of the reasons given by the High Court was that
the blood spot samples taken by the examiner were not sent to the laboratory for
testing, thereby distorting the test. The Supreme Court rejected this reasoning,
saying that such trivial omissions are not considered to distort the
investigation. Again, the court clarified its position by saying that the
omission must be serious enough to affect credibility, which it was not in this
case.
Chapter VI of the Criminal Manual, Rule 29
It reports on proof and statements according to section 161 of the CrPC as
below:
Rule 29:
- In the event of a statement recorded pursuant to section 161 of the CrPC is used in the manner indicated in Section 162 of the CrPC, the passage which was put to the witness, to contradict him, he should first be marked for identification and exhibited after it is proved.
- The method of proving such an assertion is the interrogation of a police officer who had recorded the statement whether the marked passage is a true extract from the statement recorded by him.
- If the statement recorded in accordance with section 161 of the CrPC is used to contradict a witness, the specific statement to the witness should be accurately recorded in the record about the deposition of the witness.
- Omissions in statements recorded pursuant to section 161 should, if the witness denies it, be proved by questioning the police officer whether the witness made the statement which he says he had.
Regarding the evaluation of evidence, the Supreme Court observed in the case of
Ganesh K. Gulve etc. v. State of Maharashtra, for the purpose of evaluation of
evidence, the court is required to keep in mind the setting and environment in
which the offence is committed and the level of understanding of the witnesses.
Excessive jealousy of some close relations of the complainant try to ensure that
anyone even remotely connected to the crime is also convicted.
Everyone has a
different way of telling the same facts. These are only illustrative examples.
Given these general principles, evidence must be appreciated to determine which
part of the evidence represented the true and correct state of matters. It is
for the courts to separate the wheat from the chaff.
Trial courts are required to carefully read the provision as prescribed in
section 162 CrPC and relevant provisions of sections 145,155 and 157 of the
Indian Evidence Act, 1872.
Points to be Remembered
The following points should be borne in mind while recording statement of any
witness under section 161 CrPC:
- The person whose statement is recorded should not be asked to sign it.
- It should preferably be recorded in the language of the witness and verbatim. The statement should be recorded after writing on the top the name, age, father's name and address of the maker of the statement along with name of the Police Station and Case Number.
- The statement should preferably be recorded of the eyewitnesses and in first person.
- In case of deaf and dumb witness the statement of the interpreter should also be recorded along with the statement of the witness.
- It can be recorded in question-and-answer form if required.
- The statement of unrelated and negative witness should be avoided.
- It should preferably be recorded in the language it is stated in.
- It should be recorded witness by witness and not jointly.
- It should not be recorded in boiled down form. Recording of boiled down or joint statement of witnesses is clearly in contravention of section 161 (3) CrPC.
- Investigating officer is not bound to record the statement of everybody.
- If the investigating officer takes rough note, he should preserve it for inspection of defense.
- It can be used in court by the defense to contradict the witness who made it.
- Its copy should be supplied to the accused side before the trial.
- Magistrate can summon additional accused against whom there is a prima facie case in the statements under section 161 CrPC. He can also summon additional witnesses though their names were not cited as witnesses by the investigating officer.
- Magistrate can look into section 161 CrPC statements to take cognizance even on a negative final report.
- It cannot be used as substantive or corroborative evidence save under sections 27 & 32 of the Indian Evidence Act, 1872.
- It cannot also be used to refresh the memory of the witness who made it.
- It should not be incorporated in the search list.
- It should not be incorporated in a sketch map or site plan.
- It should not be recorded in an inquest report.
- It cannot be used to contradict a defense witness or even a court witness.
- It should be written in legible and clear handwriting preferably at the spot without any unjustified delay.
- There should not be unnecessary delay in recording the statement. Inordinate delay in recording the statement should be explained in the case diary.
- The physical and mental condition of the witness should be recorded in the case diary, especially in the case of traumatized and injured witnesses.
- Interested witnesses should be examined with care and caution.
- Child witnesses should be examined with care and kindness.
- While recording the confessional statement of the accused person, the inculpatory part of the statement should preferably be written in a separate paragraph.
- After recording the statement, the investigating officer should sign it with the date after writing "Recorded by me, read over and admitted to be recorded correctly."