SWETA SINHA (LA) 06 June 2015

Non recording 161 of police witness

In a CBI trap case(2006), there were 7 cbi officers apart from one complainant and two independent witnesses. Out of 7 CBI officers who were ocular witness of the crime, only three were made Pros witness but their statement u/s 161 were neither recorded nor provided to the accused .

1. Is it going to hamper the prosecution story

2.is the Non recording U/S 161 of the occular witness , acceptable in law?

3. Any judgement in favour or against it

4. Non providing the statement of any of the CBI officers- pros witness (as it has not been recorded) will it go against the prosection

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6 Replies

Atur Chatur (LAWYER ADVOCATE NOT REQD BECAUSE I FIGHT MYSELF PARTY-IN-PERSON (aturchatur@yahoo.com)) 07 June 2015

seems to be an academic query.

can u provuide real facts with dates changed?

SWETA SINHA (LA) 08 June 2015

Non recording of statement u/s 161 of police officers who were occular witness and also made prosecution witness by CBI , to the crime /trap case - is it sanctioned in the eye of law?

Atur Chatur (LAWYER ADVOCATE NOT REQD BECAUSE I FIGHT MYSELF PARTY-IN-PERSON (aturchatur@yahoo.com)) 08 June 2015

Originally posted by : SWETA SINHA
	Non recording of statement u/s 161 of police officers who were occular witness and also made prosecution witness by CBI , to the crime /trap case - is it sanctioned in the eye of law?

If only we read the above quoted ignoting what's written above then as per me:-

(1) YES they can of course make them a witness, BUT

(2) but if you don't like it i.e., you find it fishy citing STATE in itself using their officers are trying to trap SOME1 then option left for SOME1 is to CHALLENGE it.

Thanks & Regards

SAINATH DEVALLA (LEGAL CONSULTANT) 09 June 2015

Swetha,

Can U further elaborate the case history to deliver a correct analysis.

SWETA SINHA (LA) 10 June 2015

Mr X a group A central govt officer was trapped red handed by CBI on 22.6.06 in Tatanagar. There were 10 persons including one complainant ,two independent witnesses and 7 CBI officials in the raiding party.

Out of them , the complainant,,two independent witnesses and three of the CBI officials including the Investigating officer were made the Prosecution witness.

Now, out of the 7 CBI officials(all were ocular witnesses) ,only three were made Prosec witnesses .The statement U/S 161 in respect of even these 3 prosec witnesses were not recorded . It is apprehended that in the absence of their statements u/s 161, it would be impossible to controvert him in the court of law, which is the fundamental right of the accused.

Is there any ruling or judgement in this regard?

What is your take on in this matter?

Sweta sinha

SAINATH DEVALLA (LEGAL CONSULTANT) 10 June 2015

go through this judgement:

Omkar Namdeo Jadhao & Ors vs Second Additional Sessions Judge ... on 4 January, 1996

It is seen that the observation made by the Sessions Judge, as confirmed by the of Bombay High Court, Nagpur Bench in the impugned judgment dated 10.3.1992 made in Criminal Application No.20/91 is based on 161 statements recorded during the investigation. Admittedly, no evidence has been recorded. The court Should not come to the conclusion on the basis of 161statements which are not evidence. It can be used at the trial only for contradictions or omissions when the witness was examined. Nor it could be contradicted by looking at the physical features of the witnesses even before they are examined. The Additional Sessions Judge had discharged them concluding that the police officers had fabricated the record. It would appear that the learned Sessions Judge had overstepped his jurisdiction in recording a finding, while looking at the physical features of the accused, that the police had fabricated the record. The High Court has also not properly considered the matter while going into the question regarding discharge of the accused for other offences. Under these circumstances, we hold that in view of the finding recorded by the Sessions Judge of fabrication of the record and that the case is false one, issuance of notice under Section 340, Cr.P.C. is wholly unjustified. The said order of the Sessions Judge is accordingly quashed.