05 July 2011
STATEMENTS RUDUCED INTO WRITINGS U/S 162 CAN NOT BE USED FOR CORROBORATION SAVE FOR CONTRADICTION ONLY. BUT IF SUCH STATEMENTS ARE SIMULTANEOUSLY RECORDED U/S 164 CAN THEY BE USED FOR CORROBORATION AND BECOME A SUBSTATNTIVE PIECE OF EVIDENCE? WHAT IF THEY ARE NOT RECORDED U/S 164. ARE THE ALL STATEMENT RECORDED U/S 164 SUBSTANTIVE AND CAN BE USED FOR CORROBORATION? WITHOUT ANY FORMAL PROOF WHICH IS NOT SO IN CASE OF STATEMENT U/S 162?
05 July 2011
if a witness resile he can be contadicted u.s 145 iea bcs statements r not substantive and witness can be convicted for perjury.but if accused resile in court of session and his confession become retracted then what. will he undergo an additional imprisonment for such retraction..what will be the result of such retraction
05 July 2011
Statements u/s 164 are made before Magistrate either by witness or accused.These statements are substantive evidence,not conclusive.However if said statement is made by a witness he/she could be prosecuted on backing out from that atatement,but if such statement is made by accused then he/she has right to back out from same becouse section 313 Cr.P.C. gives a legal right to any accused for taking even false defence.
There is a difference between the statement recorded under sec. 162 and sec. 164. Statement under the provisions of sec. 162 is recorded by the police as a matter of preliminary investigation in to the case before filing charge sheet in the court of law, while statement u/s 164 is recorded by the Metropolitan Magistrate or Judicial Magistrate as a confession of a person (may or may not be during the course of trial), but like an examination-in-chief to be used in the course of a trial. While statement u/s 162 is not signed, statement u/s 164 is signed by the person making statement. Statement u/ 162 cannot be relied until proved beyond doubt, while a confession made u/s 164 has to be relied as is made before a Metropolitan Magistrate or Judicial Magistrate.
Statement u/s 162 cannot be shown to the concerned person for corroborating his statement, except to be used for contradicting his earlier unsigned statement given to the police. Otherwise Corroboration of the earlier statement recorded by the police would mean putting the words of the police in to the mouth of the witness.
So, the question of recording of statement u/s 162 and u/s 164 SIMULTANEOUSLY cannot arise.
So, as I stated earlier, the statement u/s 164 being a confession statement and recorded before a Metropolitan Magistrate or Judicial Magistrate can be relied and hence can also be used for corroboration. However, that statement can also be subject to cross-examination for the purpose of contradicting that based on some vital evidence against that statement, as the same is used as examination, not cross-examination.
About your second question about the witness resiling his statement. Sec. 145 of the IEA does not provide any punishment in itself, as against what you mentioned. It merely points out towards confirmation of the idea of sec 162 of the CrPC, if the other party intends to contradict the statement (not resiliation by himself). Sec. 145 of the Evidence Act intends to indicate that if the said statement has to be contradicted the attention of the witness must be brought to the contents of the earlier recorded statement, i.e., he must be shown that part of his earlier statement where he has already stated something else, other than what he is going to reveal during the course of trial. Otherwise the statement recorded u/s 162 should not be shown to him.
Resilitaion from her recorded statement before the police has no meaning, as the same can be under pressure or threat also. But resiliation from his confession u/s 164 made before the Metropolitan Magistrate or Judicial Magistrate do have substantial bearing, which the judge can take serious note of and can hold him responsible for perjury.
05 July 2011
Statement u/s 161 and 164 has same evidentry'value and both can only be used for contradiction only. While such evidence may be used for the purpose of section 32 of evidence act if comes in ambit of such provision.
Baij Nath Sah Vs. State Of Bihar on 29 April, 2010 Author: .................J. Bench: Harjit Singh Bedi, C.K. Prasad IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1475 OF 2003
BAIJ NATH SAH .. APPELLANT(S) vs.
STATE OF BIHAR .. RESPONDENT(S) O R D E R
Four persons in all Parwati Devi, Prabhunath Sah, Baij Nath Sah, the appellant herein, and one Surajdeo Misssir were brought to trial for an offence under Sec.366- A of the Indian Penal Code for having kidnapped Suman Kumari the minor daughter of Arjun Prasad on 24th June, 1984 from her home. The fourth accused i.e. Surajdeo Missir died during the course of the trial. The Trial Court by its judgment dated 5th September, 1991, convicted the accused for the aforesaid offence and sentenced them to five years rigorous imprisonment. An appeal was thereafter taken to the Patna High Court and the learned single Judge altered the conviction from one under Sec.366-A to Sec.363 of the IPC, released Parvati Devi on the basis of the sentence already undergone and reduced the sentence of the appellants Baij Nath Sah and Prabhunath Sah, to one year's R.I.
A special leave petition was subsequently filed in this Court by Baij Nath Sah - the appellant and his brother Prabhunath Sah but as the latter did not surrender to custody, his special leave petition was dismissed. We are told that he has undergone the sentence as of now. This appeal by special leave filed by Baij Nath Sah is before us.
Mr. Gaurav Aggarwal, the learned counsel for the appellant has argued that there was no evidence whatsoever against the appellant herein. He has pointed out that his name had not figured in the FIR and that the only evidence used by the Courts below to convict the appellant was the statement under Sec.164 of the Cr.P.C. made by Suman Kumari before the Magistrate on the 25th July, 1984. He has further pointed out that this statement was inadmissible in evidence but even if taken into account did not involve or implicate the appellant in any manner.
Mr. Tanmay Mehta, the learned counsel appearing for the State of Bihar has however supported the judgment of the Trial Court and has submitted that in addition to the aforesaid statement the other evidence with regard to the involvement of the accused was also available on record. -3-
We have heard the learned counsel for the parties and have gone through the record. We see from the judgments of the Courts below that the only material that has been used against the appellant is the statement under Sec.164 of the Cr.P.C. This Court in Ram Kishan Singh vs. Harmit Kaur and Another ((1972) 3 SCC 280) has held that a statement of 164 Cr.P.C. is not substantive evidence and can be utilized only to corroborate or contradict the witness vis-a-vis. statement made in Court. In other words, it can be only utilized only as a previous statement and nothing more. We see from the record that Suman Kumari was not produced as a witness as she had since been married in Nepal and her husband had refused to let her return to India for the evidence. In this light her statement under Section 164 cannot be used against the appellant. Even otherwise, a look at her statement does not involve the appellant in any manner. The allegation against him is that after she had been kidnapped by the other accused she had been brought to their home, where the appellant was also present. In other words, when she had been brought to the appellant's home the kidnapping had already taken place. The appellant could therefore not be implicated in the offence under Sec.363 or 366-A of the IPC de hors other evidence to show his involvement in the events preceding the kidnapping.
We accordingly allow the appeal and set aside the judgment impugned. The appellant is acquitted. -4-
The appellant is on bail. His bail bonds shall stand discharged.
05 July 2011
suman kumari is not an accused in this case she is victim and may be put in the category of witness.what my query is all along that whether confession is substatntive or not.and from the discussion above i found it is substantive and other statements are used to corroborate it.
07 July 2011
Hi everybody, Friends here have made sincere efforts to resolve the issue of differentiating statements u/ss.162 & 164 CrPC.Anyways 'both statements have status of being "PREVIOUS STATEMENT" & have to be dealt with u/s.145 & 157 EA.Nevertheless,S.164 is composite one (i)statement of the witness & (ii) confessional statement of the accused.When it is to be compared with statement u/s.162,we cannot talk about 'confession' u/s.164.It will only be an added comment.