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Analysis Of Section 161 CrPc

We the so-called civilized people of society are the most insensitive when a crime is committed, even when it is committed in our presence. We withdraw ourselves from both the victim as well as the vigilant side. We the so-called elegant people of society keep ourselves away from the court unless it is inevitable. This observation was made in the case of Appabhai vs. the State of Gujarat[1]. The Hon'ble Apex Court, in this case, observed that when the prosecution could not produce independent witnesses in that case.

Before a trial is started in the court there are certain procedures that need to be followed known as a pre-trial procedure or pre-trial process. There are many stages in a pre-trial process, one of them is an investigation by the Police. The most important reason for conducting an investigation is the collection of evidence.

There are two important steps in the process of investigation, viz. discovery and arrest of the suspected offender, and the search of places and seizure of things considered necessary for the investigation, inquiry or trial.

According to Clause (h) of Section 2, investigation includes all the proceedings under the code for the collection of evidence conducted by the police officer or by any person (other than Magistrate) who is authorised by a Magistrate.

The Supreme Court has viewed the investigation of an offence as generally consisting of:
  1. Proceeding to the Spot
  2. Ascertainment of the facts and circumstances of the case;
  3. Discovery and arrest of the suspected offender;
  4. Collection of evidence relating to the commission of the offence which may consist of:
    1. The examination of various persons (including the accused) and the reduction of their statements into writing, if the officers think fit.
    2. The search of places or seizure of things considered necessary for the investigation or to be produced at the trial; and
  5. Formation of the opinion as to whether on the materials collected there is a case to place the accused before a Magistrate for trial, and if so, taking the necessary steps for the same by the filing of a charge sheet under section 173.[2]

Examination of witness by the Police is done under section 161 of Cr.P.C.[3] Under this section, 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. There should not be a long delay on the part of the investigating authorities in recording statements.

In a case where there was an unexplained delay for 10 days, and there were some contradictions as well, the Supreme court opined that though the contradictions by themselves might not have much significance, yet, considered in the light of the delay in the examination, the evidence suspect.[4] The investigating officer, however, should be specially asked about such delay and the reasons therefore.[5]

Where a belated examination of the victim of an offence was unexplained, it was held to throw doubt on the veracity of the prosecution case.[6] When the delay is properly explained, it may not have any adverse impact upon the probative value of a particular eye-witness.[7] Where the person resided in Dubai, and not within the limits of the Police Station or the adjoining station, the investigating officer could not avail the benefits of this section.[8]

It is well settled that delay of a few hours by itself in recording the statement of the informant does not amount to serious infirmity, unless there is material to suggest that the investigation agency had deliberately delayed in order to afford an opportunity to the maker to set up a case of his own choice.[9]

Where the evidence of the victims of a communal riot was found cogent, clear, truthful and convincing, it was held that delay in their examination by police u/s 161 CrPC did not affect their credibility.[10]

A Police officer making an investigation is not bound to reduce into writing the statements of witnesses examined by him, but it is desirable that he records at least the substance of such statements. If he does not record even the substance of the statements, that fact may be taken into consideration by the Court in weighing the evidence, for it is possible that if the witness had been contradicted in the witness-box with his previous statement, his entire evidence might have broken down.

But the court will not accept a police officer to stultify his investigation for the purpose of making such a record. It would be open to the Police Officer to satisfy the Court that his failure in this respect was due to reasons beyond his control. If he does record the statements or their substance, he may do so either in the case diary maintained u/s 172, or on separate pieces of paper, whether loose or stitched into a notebook, or in both, but he must record the statement of each witness or its substance separately and truly as laid down in sub-section 3.[11]

A Magistrate cannot reject an application made by the prosecution before it closes its case to examine a witness whose statement has not been recorded under this section. The statement of that witness can still be recorded if the Magistrate finds that the police officer concerned has not carried out his duty u/s 173.[12]

Where the witnesses were alleged to have improved their statements in the Court, as they had not given such a statement to the police u/s 161 Cr.P.C, it was held that the so-called improvement by witnesses came within the purview of Omission and not Contradiction. It is only a Contradiction with the statement u/s 161 Cr.P.C, which can be legally proved and utilised by the accused and not an Omission.[13]

Where the offence complained of is exclusively triable by the Court of Session, the Magistrate need not record the statements of the witnesses u/s 161.[14]

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 a 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 Gujarat[15],

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.

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 to 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[16]. However, as was held in Ponnuswamy Chetty v. Emperor[17] a bare omission cannot be a contradiction.

Now the most important question arises as to how to identify whether it is an omission or contradiction.

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 that are not actually in the statement. Though something is not expressly stated, it is necessarily implied from what is directly or expressly stated.

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.

A statement recorded by the Police Officer during investigation is neither given on oath nor is it tested by cross-examination. According to the law of evidence such statement is not evidence of the facts stated therein and therefore it is not considered as substantive evidence.[18]

And it is considered no evidence to initiate criminal cases u/s 194 and 195 of IPC.[19] But if the person making a statement is called a witness at the time of trail, his former statement, according to normal rule to evidence could be used for corroborating his testimony in court or for showing how his former statement was inconsistent with his deposition in court with a view to discredit him.[20]

The word statement appearing in section 161 (3) and section 162 constitutes the entirety of facts stated by a witness when he was examined on different dates by the same investigating officer or different investigating officers. Therefore, the expression statement or any part of such statement appearing in section 162 is not confirmed to a single statement given by a witness to a particular officer but takes in all statements given by a witness at different stages or in different dates to different investigating officers or the same investigating officer.[21]

The object of the section is to protect the accused both against over-zealous police officers and untruthful witnesses.[22]

Statements recorded by the Police during the course of investigation are often taken down in a haphazard manner in the midst of a crowd and confusion. If the statement is not reliable for its accuracy and should not therefore be used for corroboration, by the same logic it is equally unreliable and should not be used for contradiction.

However, it is observed by the Law Commission:
there is a material difference between contradiction and corroboration and what is good enough for contradicting a witness is not always good enough for corroborating him the policy of law in permitting a witness to be contradicted by a police statement and not permitting him to be corroborated by the same statement is basically sound and sensible.[23]

If a person is called in trial as a defence witness, his former statement before the police cannot be used for contradicting him.[24] The reason appears to be that it would be improper to allow a witness to be contradicted by a record prepared by the opposite party.[25]

A statement recorded by the police during the investigation is not at all admissible in evidence and the proper procedure is to confront the witness with contradictions when they are examined and then as the investigating officer regarding those contradictions. Even a statement of a witness recorded by the investigators during the inquest under Section 174 of the Code of Criminal Procedure would be within the inhibition of Section 162.

A statement recorded by the police in the course of investigation can be used in a trial if the person making the statement is examined as a prosecution witness and it cannot be used for any purpose whatsoever if the person making the same is examined as a defence witness.

A statement made before a police officer during the course of investigation cannot be used for any purpose whatsoever, except when it attracts the provisions of Section 27 or Section 32(1) of the Evidence Act.

If, however, such a statement is made by a witness examined by the prosecution, it may be used by the accused to contradict such a witness and with the permission of the Court, by the prosecution in accordance with Section 145 of the Evidence Act.

If any part of the previous statement is used for contradiction, any part of the statement can be used in the re-examination of the witness for the only purpose of explaining any matter referred to in his cross-examination.

  1. AIR 1988 SC 696
  2. H. N. Rishbud v. State of Delhi, 1955 Cri. L.J. 526, 531: A.I.R. 1955 S.C. 196; Pappu Rao v. State, 1985 Cri. L.J. 546 (Cal.).
  3. 161. Examination of witnesses by police.
    1. Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.
    2. Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
  4. The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.
  5. Balakrishna Swain v. State of Orrisa, A.I.R. 1971 S.C. 804.
  6. Ranbir v. State of Punjab, A.I.R. 1973 S.C. 1409.
  7. Ramsingh v. State of M.P, 1989 Cr LJ N.O.C. 206
  8. Jodha Khoda Rabari v. State of Gujrat, 1992 CrLJ 3298 (Guj).
  9. Washeshwer Nath Chadda v. State, 1993 CrLJ 3214 (Del).
  10. Raj Mangal Thakur v. State of Bihar, 1993 CrLJ 1090 (Pat).
  11. Paresh Kalyan das Bhavsar v. Sadiq Yakubbhai, A.I.R. 1993 S.C. 1544.
  12. George, (1955) Andhra 700.
  13. Lokhande, (1972) 75 Bom. L.R. 285.s
  14. Mohd. Islam v. State of U.P., 1993 CrLJ 1736 (All)
  15. P. Ailamma v. T. Zedson, 1989 CrLJ 783 (AP).
  16. AIR 1988 S.C. 694 [1988 Cri LJ. 848]
  17. Tahsildar Singh v. State of U.P., 1959 SCR Supl. (2) 875; AIR 1959 1012 (1026).
  18. (A.I.R. 1957 All. 239).
  19. Sewaki v. State of H.P., 1981 Cri LJ 919, 920 (HP)
  20. Omkar Namdeo Jadhoo v. Addl. Sessions Judge, Buldana, (1996) 7 S.C.C. 498; 1996 S.C.C. (Cri) 488.
  21. Section 157 & 145, Evidence Act, 1872.
  22. Asan Tharayil Baby v. State of Kerala, 1981 Cri LJ 1165, 1169 (Ker).
  23. Khatri v. State of Bihar, (1981) 2 S.C.C. 493.
  24. 41st Report, Vol. I. p.74, para 14.13.
  25. Shakila Khader v. Nausher Gama, (1975) 4 S.C.C. 122.
  26. 41st Report, Vol. I, p.74.

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