EVIDENTIARY VALUE OF STATEMENTS RECORDED UNDER SECTION 161 OF THE CODE OF CRIMINAL PROCEDURE, 1973

Introduction:-

‘Civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable.’ (Ref: Appabhai Vs. State of Gujrat AIR 1988 SC 696). This observation was made by the Hon’ble Apex Court when prosecution could not produce independent witnesses in that case. In the process of investigation, under Section 161 of Cr.P.C, any Police officer making an investigation is accredited and empowered to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to records statement of witnesses. These statements are predominantly called as section 161 Cr.P.C statements. This task is to gather evidence against accused. After filing charge sheet, these statements will also be perused by the Court to take cognizance of an offence. Such a statement can only be utilized for contradicting the witness in the manner provided by Section 145 of the Evidence Act.

What is a contradiction?
In case of a witness testifies before the court that a certain fact is existed without stating same before police; it is a case of conflict between the testimony before the court and statement made before the police. This is a contradiction. Therefore statement before the police can be used to contradict his testimony before the court. In Appabhai .Vs. State of Gujrat AIR 1988 S.C. 694 [1988 Cri.L.J. 848], The Hon’ble Apex Court has observed as under: “The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded.

What is an ‘Omission’?
An omission is either skip or slip, it means ‘exclusion’ or ‘leaving out’. If a certain fact is testified by a witness in his Examination-in-Chief’, such fact, which is testified in Court, had been omitted to state before police, it is called an ‘Omission’. Now, it is to be tested by the Court whether it is a material omission or not. If it is a material omission, it amounts material contradiction. The Hon’ble Apex Court opines that relevant and material omissions amount to vital contradictions, which can be established by cross- examination and confronting the witness with his previous statement. (Ref; Tahsildar Singh ..Vrs..State of U.P., 1959 SCR Supl. (2) 875; AIR 1959 1012 (1026)). However, as was held in Ponnuswamy Chetty v. Emperor (A.I.R. 1957 All. 239), ‘ a bare omission cannot be a contradiction’.

Non-production of Independent witnesses:
It is settled law of criminal jurisprudence that conviction can be based on the testimony of official witnesses and it is not necessary that in each and every case, public persons must be joined in investigation. In the case of “Appabhai Vs. State of Gujrat” AIR 1988 SC 696, it has been held as under, “It is no doubt true that the prosecution has not been able to produce any independent witness to the murder that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the spectrum or the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused.”

How to know whether it is a contradiction or an omission or not?
” Statement ” in its dictionary meaning is the act of stating or reciting. Prima facie a statement cannot take in an omission. A statement cannot include that which is not stated. But very often to make a statement sensible or self-consistent, it becomes necessary to imply words which are not actually in the statement. Though something is not expressly stated, it is necessarily implied from what is directly or expressly stated. To illustrate: ‘ A’ made a statement previously that he saw ‘ B ‘ stabbing ‘ C ‘ to death; but before the Court he deposed that he saw ‘B’ and ‘D’ stabbing ‘ C’ to death: the Court can imply the word “only ” after ‘ B ‘ in the statement before the police. Sometimes a positive statement may have a negative aspect and a negative one a positive aspect. Take an extreme example : if a witness states that a man is dark, it also means that he is not fair. Though the statement made describes positively the colour of a skin, it is implicit in that statement itself that it is not of any other colour. (See Tahsildar Singh’s case (supra)).

The statement of injured which was recorded as a dying declaration which, consequent upon his survival, is to be treated as a statement:-
In Sunil Kumar and others Vs. State of M.P. ( AIR 1997 SC 940), in this case the Supreme Court, while dealing with the statement of injured witness, which was then recorded as a dying declaration by the Magistrate, observed that the statement of injured which was recorded as a dying declaration which, consequent upon his survival, is to be treated as a statement under Section 164 of the Criminal Procedure and can be used for “corroboration or contradiction”, unlike the statement under Section 161, which can be used only for “contradiction”.

If signature of a person obtained on his statement recorded under section 161 of Cr.P.C, whether such statement should be ignored?
Basically, signature of witness on section 161 of Cr.P.C statement is not necessary. However, it is not the law that whenever the signature of the person is obtained in his statement recorded in the course of investigation that statement should be ignored. The law on the point informs me that in such situation the Court must be cautious in appreciating the evidence that the witness who gave the signed statement may give in Court (See Tilkeshwar Vs. Bihar State (AIR 1956 SC 238), State of U.P VS. M.K Anthoni (AIR 1985 SC 48), (1985) 1 SCC 505.and State of Rajasthan Vs. Teja Ram and Ors. (AIR 1999 SC 1776). It has been held that obtaining the signature of the witness in the statement recorded under Sec.161 of the Code does not render it inadmissible under Sec.161 of the Code but, it may affect the weight to be attached to the evidence of such witness. Notwithstanding that the statement is signed, it continues to be a statement recorded under Sec.161 of the Code, going by the said decisions. (See also M. Sundaramoorthy vs State Of Kerala, (2011), Hon’ble Kerala High Court, Crl.MC.No. 464 of 2011).

Improvements in the evidence of prosecution witnesses:-
The Court disbelieves the evidence of prosecution witness, if there are improvements in the deposition of such witness made over his statement recorded under section 161 of Cr.P.C. In the cases of Ashok Vishnu Davare Vs. State of Maharasthra, (2004) 9 SCC 431, Radha Kumar v. State of Bihar (now Jharkhand) [(2005) 10 SCC 216] and Sunil Kumar Sambhudaval Gupta (Dr.) and Others Vs. State of Maharashtra, (2010) 13 SCC 657, in which the Hon’ble Supreme Court has not believed the evidence of prosecution witnesses on account of improvements in the deposition of the witnesses made over their statements recorded under Section 161, Cr.P.C. (See also Baldev Singh vs State Of Punjab, , criminal appeal No. 1303 of 2005, [2013], Baldev Singh vs. State of Punjab (1990 (4) SCC 692 = AIR 1991 SC 31)). However, in Arjun and others ..Vs.. State of Rajsthan, AIR 1994 SC 2507, The Hon’ble Court has held that – A little bit of discrepancies or improvement do not necessarily demolish the testimony. Trivial discrepancy, as is well known, should be ignored. Under circumstantial variety the usual character of human testimony is substantially true. Similarly, innocuous omission is inconsequential.

Even honest and truthful witnesses may differ in some details unrelated to the main incident:-
In State of U.P. Vs. M.K. Anthony AIR 1985 SC 48, the Hon’ble Apex Court laid down certain guidelines in this regard, which require to be followed by the courts in such cases. The Court observed as under :- technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer.”

Confrontation of Statement:- Dandu Lakshmi Reddi vs. State of A.P. (AIR 1999 SC 3255), it was observed that Section 162 of the Code of Criminal Procedure (for short the Code) interdicts the use of any statement recorded under Section 161 of the Code except for the limited purpose of contradicting the witness examined in the trial to whom such statement is attributed. Of course, this Court has said in Raghunandan Vs. State of U.P., (AIR 1974 SC 463) that power of the court to put questions to the witness as envisaged in Section 165 of the Evidence Act would be untrammeled by the interdict contained in Section 162 of the Code. The following observations in the aforesaid decision, in recognition of the aforesaid power of the court, would be useful in this context: We are inclined to accept the argument of the appellant that the language of Section 162 Criminal Procedure Code, though wide, is not explicit or specific enough to extend the prohibition to the use of the wide and special powers of the Court to question a witness, expressly and explicitly given by Section 165 of the Indian Evidence Act in order to secure the ends of justice. Therefore, we hold that Section 162 Criminal Procedure Code does not impair the special powers of the Court under Sec. 165 Indian Evidence Act. Ultimately, in the said ruling Dandu Lakshmi Reddi (supra), it was held that ‘ It must now be remembered that the said procedure can be followed only when a witness is in the box. Barring the above two modes, a statement recorded under Section 161 of the Code can only remain fastened up at all stages of the trial in respect of that offence. In other words, if the court has not put any question to the witness with reference to his statement recorded under Section 161 of the Code, it is impermissible for the court to use that statement later even for drawing any adverse impression regarding the evidence of that witness. What is interdicted by the Parliament in direct terms cannot be obviated in any indirect manner.’

A statement under Section 161 Cr. P. C is not a substantive piece of evidence: As has been held In Rajendra singh vs. State of U.P – (2007) 7 SCC 378, “a statement under Section 161 Cr. P. C is not a substantive piece of evidence. In view of the provision to Section 162 (1) CrPC, the said statement can be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the said proviso. Therefore, the High Court committed a manifest error of law in relying upon wholly inadmissible evidence in recording a finding that Respondent 2 could not have been present at the scene of commission of the crime.”

Conclusion:-
1. If we go through section 145 of Evidence Act, it expatiates how to contradict a witness. The words ” to contradict him ” appearing in s. 145 of the Evidence Act must carry the same meaning as the words ” to contradict such witness ” in s.162 of the Code. (See Tahsildar Singh And Another’s case infra).
2. It was pointed out in Baldev Singh vs State Of Punjab, AIR 1991 SC 31 that the statement recorded under Section 161 of the CrPC shall not be used for any purpose except to contradict a witness in the manner prescribed in the proviso to Section 162 (1) and that the first information report is not a substantial piece of evidence.
3. Nuts and bolts of impeaching credit of witness are speculated under section 155 of the Evidence Act.
4. However, merely because there is ‘inconsistency in evidence it is not sufficient to impair the credit of the witness.
5. As was held in Binay Kumar Singh Vs. State of Bihar, (AIR 1997 SC 322), it is axiomatic that evidence is not to be counted but only weighed and it is not the quantity of evidence, but the quality that matters.
6. Under Section 161 of Code of Criminal Procedure, a police officer, making an investigation can examine the person acquainted with the facts of the case and reduce the statement made by such person into writing.
7. Although signature of witness on section 161 of Cr.P.C statement is not necessary, it is not the law that whenever the signature of the person is obtained in his statement recorded in the course of investigation that statement should be ignored. (Ref: Tilkeshwar Vs. Bihar State, AIR 1956 SC 238).
8. Under Section 162 of Cr. P. C., statement made to the police which is reduced into writing may be used by either prosecution or by defence to contradict such witness under purview of section 145 of the Indian Evidence Act.
9. Section 145 of Indian Evidence Act,1872 manifests one of the modes in which the credit of the witness may be impeached.
10. In view of Section 155 (3) of Indian Evidence Act, the credit of a witness may be disparaged or impeached by the adverse party by way of contradiction.
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