Introduction
The term ‘statement’ is to state or recite something. The term statement is not legally defined under any Act. Generally, statements are recorded under Sections 161 and 162 by the police officer. Under Section 164 of the Code of Criminal Procedure (CrPC), the confessional statements of accused are recorded by the Magistrate.
Section 161 of the CrPC states “Examination of witnesses by police” provides for oral examination of a person by any investigating officer, the person being acquainted with the facts and circumstances of the case. The purpose for which the statement is recorded under Section 161 CrPC by the police can be used at any trial are indicated in Section 162 CrPC.
According to Sec. 164(1) of the CrPC, Judicial Magistrate or Metropolitan Magistrate whether or not having jurisdiction pertaining to a particular case, can record any statement or confession in the course of investigation. Section 164(5) of the CrPC gives the Judicial Magistrate the power to record statement (other than confession statement) which is in the opinion of Magistrate a best titled to the circumstances of the case. The Court must be satisfied that the confession made by the person is voluntary, and no further enquiry as to whether it is true or trustworthy need to be made.
Scope and relevance of statements under Section 161 CrPC
Object of Sec. 161 of CrPC is to collect evidence regarding the commission of an offence by examination and recording statements of the witnesses’ material regarding the commission of the offence.
The police records the statements u/s 161 CrPC are not evidence for prosecution. They can be used by the defence for contradicting the prosecution witnesses. But when the prosecution witness turns hostile, with the permission of court, the Public Prosecutor can cross examine that witness by using his u/s 161 CrPC statements to establish contradiction.
In Sethuraman @ Ramanathan vs State Rep. By, Crl.M.P.(MD).No.2985 of 2016, it was stated that when section 161 CrPC statements falls under the purview of Section 27 and Section 32(1) of Evidence Act, then it can be used by prosecution as evidence. Statements recorded u/s 161 of the CrPC are not substantive evidence.
Evidentiary value of U/S 161 of CrPC statement if signed by witness
The law says that when signature of the person is obtained in his statement recorded during an investigation that statement shouldn’t be ignored. The signature of the witness makes the statement authentic. However, the court must be cautious in appreciating the evidence that the witness who gave the singed statement may give in court.
In the case of State of U.P v. MK Anthony (1985 SCC (Crl) 105) and in another case of State of Rajasthan v. Teja Ram and others (AIR 1999 SC 1776), it was observed by the Supreme Court that Sec. 162 of the Code does not provide that, evidence of a witness given in the court becomes inadmissible, if is found that the statement of witnesses recorded in the course of investigation was signed of the witness at the instance of the investigating officer. It merely puts court on caution and may necessitate in depth scrutiny of the evidence.
Delay in recording of statement of witnesses’ u/s 161
If there is a delay in recording the statement of witness’s u/s 161 of the CrPC then it does not necessarily discredit their testimony, if they are credible and delay is explained to the satisfaction of Court. The effect of delay was explained by the Supreme Court in the case of Harbeer Singh v. Sheeshpal, and stated that in recording the statements of the prosecution witnesses’ u/s 161 of the Code, they could be examined when the Investigating Officer visited the scene of crime and it would cast a doubt about prosecution case. However, it stated that it is a settled law that every delay in examining witness is not fatal in nature subject to explanation given by investigating officer to the satisfaction of court.
Scope of statements u/s 164 of CrPC
Section 164 of the CrPC provides for recording of any statement of a witness or an accused person in form of a confession. This section specifically provides for two clauses:
- Statement of the witnesses and
- Confession of a person accused of an offence.
The purpose of recording statements of witnesses under Section 164 of the CrPC is:
- To deter witnesses from shifting versions at the trial and if done so, then will be liable for perjury.
- To get over the immunity from the prosecution regarding the information given by the witnesses u/s 162 of the CrPC.
The term ‘confession’ may be defined as a formal statement wherein one admits guilt of a crime. The term is not defined under the Evidence Act. It includes admission, but it must be noted that an admission is not confession. It may be an admission in terms of the offence or at any rate substantially all the facts which constitute the offence. The person making it states something against himself, therefore, it should be made in surroundings, which are free from suspicion.
The statement recorded by the Magistrate u/s164 of the CrPC is the public document as per Section 74 of the Evidence Act and it needs no formal proof. Such statement is admissible u/s 80 of the Evidence Act.
In Pakala Narayana Swami Vs emperor AIR 1939 P.C. 47, the issue before the Court was whether the statements from which the guilt of an accused can be inferred amounts to a confession or not. The court held in this case that “A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not in itself a confession, for example, an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused death with no explanation of any other man’s possession”.
Substantive value of statements recorded u/s 161 and 164 of the CrPC
Statements given by the witnesses during the course of investigation would come under the purview of Section 161 of the CrPC and it cannot be used as evidence but can be used only for the narrow purpose as provided in the said provision itself. It is not a substantive piece of evidence by the court. Hence, Article 20 (3) of the Constitution read with Section 161 (2) of the CrPC guards against the compulsory extraction of oral testimony, also at the stage of investigation.
Under Section 164 of the CrPC, a statement is recorded by a Magistrate. The person making and signing a statement before the Magistrate during the course of investigation cannot disown it and it will sustain the case of prosecution. If disowned the same then the person shall be called to turn hostile. A confession is substantive evidence against its maker, so that it has been duly recorded and suffers from no legal infirmity, it would suffice to convict the accused who made the confession.
The Patna High Court recently, in the case of Deepak Kumar v. State of Bihar observed that if defence had no opportunity to cross-examine the witness whose statements were recorded u/s 161 and 164 of the Code, then in such a case the statements cannot be treated as substantive evidence.
Justice Alok Kumar Pandey while adjudicating upon appeal filed in POCSO case stated that it is well settled by catena of judicial pronouncement that statements recorded under Sections 161 and 164 of the Code to be used for corroboration and contradiction only.
Conclusion
In criminal trial recording of statements u/s 161 and 164 of the Code, plays a very significant role. The law says that there can’t be any presumption that a statement recorded under Section 161(3) of the CrPC would reveal truth. Hence, for ensuring trustworthiness and truthfulness of witness, contradiction are very important. It is helpful for the defence and to the prosecution when a witness turns away/ hostile from his previous statement that was recorded during the investigation/ enquiry.
The difference between the statement recorded u/s 161 by the police and u/s 164 before the Magistrate is that the statement recorded u/s 164 of the CrPC before the Magistrate is on oath and the witness if found afterwards turning it down then he will be charged to give false evidence. The statements recorded u/s 161 of the CrPC can be used for purpose of contradiction only, however, the statements recorded u/s 164 of the CrPC can be used for corroboration as well as contradiction.
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