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06 September 2008  
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Prohibition under Section 162 CrPC against signing of the statement of witnesses recorded during investigation has its origin in the historical distrust about faithful recording of statements by the investigating officers. This practice helps the untruthful police officers to mould statements in the way they like, sometimes to the utter dismay of the witnesses. This becomes possible because of Section 162 CrPC which helps the accused to contradict the witness if during trial in court the witness comes to make contradictory statement. And it is not impossible for the police to record contradictory statement even in the case of a truthful witness who must have said the same thing to the police as well as in the court. This statement in the case diary often helps the accused to get acquitted if the court does not handle the issue carefully. This becomes evident from examination of some recent decisions of the courts.

The decision of the Supreme Court in the case of Harkirat Singh v. State of Punjab (1997) 11 SCC 215 : 1997 SCC (Cri) 1068 provides an instance where the court may acquit an accused because of the infirmity in recording the statements. In this case the FIR alleged accused Harkirat Singh only being armed with a pistol and having fired a shot leading to the death of Khairati Ram. It was mentioned that the other accused persons had no firearm with them. The informant Walaiti Ram died before he could be examined by the trial court. Only PWs 4 and 5 had supported in court the prosecution version regarding accused Harkirat Singh having shot the victim leading to his death. But the case diary indicated that both these witnesses had stated before the police that Harkirat Singh was armed with a dang (stick) and that one of the other accused Raghbir Singh had a pistol and that he fired at the deceased. The trial court acquitted the four accused persons but convicted Harkirat Singh.

The High Court confirming the conviction of Harkirat Singh discarded the said contradictory statement of these witnesses in the case diary and observed:

"PW 4 Kharaiti Lal has made his statement in the inquest proceedings and a perusal of the same shows that he had mentioned in that statement that it was Harkirat Singh who had fired the shots from the pistol. Even in the first information report, it is clearly mentioned that Harkirat Singh had fired the shots. The statement in the inquest report and the statement under Section 161 CrPC were recorded on the same day, i.e., 29-11-1986. The contradiction in these two documents shows that the investigation was not fairly conducted in this case. It appears that an effort was made to give benefit to Harkirat Singh. We do not attach any importance to the fact that the statement under Section 161 CrPC shows that it was Raghbir Singh who had fired the shots."2 

While allowing appeal of Harkirat Singh, the Supreme Court has commented thus:

"In our considered view, the High Court was not justified in treating the statement allegedly made by Kharaiti Lal during inquest proceedings as substantive evidence in view of the embargo of Section 162 CrPC. Equally unjustified was the High Court's reliance upon the contents of the FIR lodged by Walaiti Ram who, as stated earlier, could not be examined during the trial as he had died in the meantime. The contents of the FIR could have been used for the purpose of corroborating or contradicting Walaiti Ram if he had been examined but under no circumstances as a substantive piece of evidence.3 

It is respectfully submitted that the Hon'ble Supreme Court seems to have misunderstood the analysis of the High Court. What the High Court did was to highlight the circumstances which exposed the trick of the investigating officer. It is highly improbable and against common course of behaviour that the witnesses who had, in consonance with FIR, stated in the inquest proceedings that Harkirat Singh had shot at the deceased could have changed the statement recorded on the same day under Section 161 CrPC by the police, so the High Court found it justifiable to discard the manipulated contradictory statement in the case diary and allowed the evidence of these witnesses in trial to pass the test of credibility. The statements in FIR and inquest report were adverted to only with a view to find out whether the later statement under Section 161 CrPC was reliable to affect the credibility of the statement of the witness made in trial. This reading finds full support from the concluding portion of the observation of the High Court which runs thus:

"It appears that an effort was made to give benefit to Harkirat Singh. We do not attach any importance to the fact that the statement under Section 161 CrPC shows that it was Raghbir Singh who had fired the shots." In Ishari Singh v. State of Rajasthan.               1997 Cri LJ 2222 (Raj) Yudhistar, one of the occupants of a car lodged FIR alleging that due to negligent driving by Dharamveer, the driver, the car turned upside down causing death of the other occupant Hanuman Singh. But during the course of investigation the said informant filed an application before the investigating officer stating that a truck had hit the car from behind whose number could not be known. The statement under Section 161 CrPC of other witnesses also came to allege the accident due to hitting of the car by the truck. The police submitted final report exonerating the driver. However, the CJM took cognizance under Sections 279, 337 and 304-A IPC.

The Sessions Judge in revision set aside the order taking cognizance of the offences. The aggrieved petitioner took the matter before the High Court. The High Court justified the order of the Sessions Judge on various grounds including the following which is material for discussion here:

"At this stage all that can be done is to point out the disparity between the version given in the first information report and the version given in the statement recorded under Section 161 of the Criminal Procedure Code. The latter (sic) is relevant for proceeding under Section 204 of the Criminal Procedure Code because it supersedes the former and is likely to be adhered to if the deponent is examined in the Court”  1997 Cri LJ 2222 (Raj)

The Judge came to discard the statement in the FIR and preferred to rely on the statement of the witnesses recorded under Section 161 CrPC because in the opinion of his Lordship the latter statement even though contradictory "supersedes the former and is likely to be adhered to" in trial.

In normal course the informant as well as the witnesses would be expected to adhere to their statements in the FIR and case diary respectively. But in the case under discussion the very filing of the uncalled-for petition by the informant giving a totally new and novel twist to the cause of the accident contrary to what he had stated in the FIR was sufficient to put the Court on guard as to whether the subsequent twist given to the version of the incident is motivated. If so, the witnesses examined by the police should have been allowed to be tested in the trial.

Again, there is no rule or ruling that the statement in the FIR is superseded by the contrary statement of witnesses made under Section 161 CrPC. Rather the Supreme Court had occasion to caution the Court to be vigilant against the motivated or unfair dealings of the investigating officers during the course of investigation. In the case of Karnel Singh v. State of M.P the Supreme Court said:

"In cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective."

In this view it is felt that the order taking cognizance should not have been quashed. Had it been allowed to be tried the veracity of the statements under Section 161 CrPC could have been tested.

A prosecution ought not to be quashed at the initial stage merely on the divergent and inconsistent statements of witnesses in the case diary. The likelihood of witnesses adherence to such statement in trial would depend on the circumstances of each case. In the case of Ishari Singh under discussion the version in the FIR unequivocally attributed negligence of the driver as the sole cause for the accident. But subsequent application of the informant supported by the witnesses as recorded by the police gave a twist by introducing hitting by the truck. In this situation when the former implicated the driver and the latter exonerated him it was just and proper for the Magistrate taking cognizance to have relied upon the statement in the FIR for summoning the driver to face trial. The evidence at the trial court have been relied on for determining the issues.

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Category Criminal Law, Other Articles by - K.C.Suresh