prosecution evidence

Can the prosecution witness’ statement given to the police during investigation be used as “evidence” against them?

Ans: "Yes"

In the summary procedure for trial for giving false evidence Under Section 344 of Cr.P.c

The CrPC empowers a police officer to record the statement of a person, who is acquainted with the facts and circumstances of the case being investigated by him (Section 161). This however is not admissible in a court of law. The rationale behind this is that the police coerce witnesses into making statements, and such statements should not be adduced as evidence. Hence, the witness is required to appear before the court at the time of the trial and restate what he stated to the police at the time of investigation. At the time of the trial, the witness may change his statement or deny having made the statement. In such situations, the prosecution prays to the court that such witness be declared hostile and consequently, gets the right to cross-examine the witness. Ultimately, the creditworthiness of the witness is impeached and the prosecution loses the testimony of a witness, which may be crucial to construct its version of the story. Therefore, in most instances of hostile witnesses, the prosecution is unable to prove its case beyond reasonable doubt, as required in law.

Evidential Value Of Statements Given By A Hostile Witness:

Supreme courts in its various judgments has held that declaration of a witness to be hostile does not ipso facto reject the evidence and it is now well settled that the portion of evidence being advantageous to both the parties may be taken advantage of- but the court before whom such a reliance is placed shall have to be extremely cautious in such acceptance. The decision made by the apex court in State of U.P. v Ramesh Prasad Misra and anr.[3] That “ it is equally setteled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but it can be subjected to closed scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted

If the judge finds that in the process the credit of the witness has not been completely shaken , he may after reading and considering the evidence of the witness as a whole with due caution and care , accept in the light of other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. As was decided in the case K. Anbazaghan v superintendent of Police [4]

Effect Of Witnesses Turning Hostile On Our Justice System:

In our criminal justice system witnesses are harassed. The way he is dealt with is a subject of criticism. And when he dose not appear in the court then he is subjected to cross examination and lands himself in a helpless situation. For all these reasons a person abhors from becoming a witness. A lot of witnesses do turn hostile because of threat by the powerful. It was observed by the Delhi High Court. Sometimes witnesses are treated with offending words even by the courts which has been taken in a serious way by the apex court in Tessta Setalvad v State of Gujarat[5] as it directed the lower courts not to use loud and offensive language against the witnesses. The fact is that the accused are able to intimidate the witnesses because there is no provision available under which after the assessment of a particular witness the administration Could give the witness requisite security cover.

At present under the CrPC 1973 a statement made to the police during investigation of a cognizable offence may be recorded in writing. A person is bound under section 161 to answer all questions asked by the police officer except those that tend to expose the person to a criminal charge or to a penalty or forfeiture. Such a statement is not treated as substantive evidence. A statement made to the police can be used at the trial of the offence for a limited purpose of contradicting a person who is actually examined as a prosecution witness. The CrPC further provides in section 162 that no statement recorded by any person during the investigation of an offence shall be signed. The courts have repeatedly held that the intention behind this provision is to protect the accused from being prejudicially affected by any dishonest or questionable methods adopted by an overzealous police officer, who may be inclined to misrecord the statements or bring pressure or influence on the witnesses, and also from persons who may be inclined to tell untruths to the police in order to settle scores.

Sections 340 and 344 of the existing CrPC contain provisions relating to perjury. There is an option before the court of sessions or first class magistrate to initiate prosecution for perjury. Under section 340, the court is required to make an inquiry in respect of perjury and file a complaint before the magistrate for prosecution. The offences of perjury are punishable under the provisions of the IPC. The punishment for perjury tried summarily under section 344 of the CrPC is for a term that may extend to three months or a fine up to 500 rupees or both. In case of prosecution under section 340, the punishment is awarded as per provisions of the IPC, which may be up to life imprisonment, depending upon the punishment prescribed for the offence in the trial where such false evidence was tendered.

The current practice is to try the hostile witness after the completion of the trial and the judgment is delivered.

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SECTION 344 :

SUMMARY PROCEDURE FOR TRIAL FOR GIVING FALSE EVIDENCE.

1.       If, at the time of delivery of any judgment or final order disposing of any judicial proceeding, a Court of Session or Magistrate of the first class expresses an opinion to the effect that any witness ap- pearing in such proceeding had knowingly or wilfully given false evidence or had fabricated false evidence with the intention that such evidence should be used in such proceeding, it or he may, if satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily for giving or fabricating, as the case may be, false evidence, take cognizance of the offence and may, after giving the offender a reasonable opportunity of showing cause why he should not be punished for such offence, try such offender summarily and sentence him to imprisonment for a term which may extend to three months, or to fine which may extend to five hundred rupees, or with both.

2.       In every such case the Court shall follow, as nearly as may be practicable, the procedure prescribed for summary trials.

3.       Nothing in this section shall affect the power of the Court to make a complaint under section 340 for the offence, where it does not choose to proceed under this section.

4.       Where, after any action is initiated under sub- section (1), it is made to appear to the Court of Session or Magistrate of the first class that an appeal or an application for revision has been preferred or filed against the judgment or order in which the opinion referred to in that sub- section has been expressed, it or he shall stay further proceedings of the trial until the disposal of the appeal or the application for revision, as the case may be, and thereupon the further proceedings of the trial shall abide by the results of the appeal or application for revision.

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Section 193 0f IPC:

Punishment for false evidence:

Whoever intentionally gives false evidence in any of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either descripttion for a term which may extend to seven years, and shall also be liable to fine; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either descripttion for a term which may extend to three years, and shall also be liable to fine.

Explanation:-

1.- A trial before a Court- martial 1[ is a judicial proceeding.

2.- An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice.

 Illustration A, in an enquiry before a Magistrate for the purpose of ascertaining whether Z ought to be committed for trial, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceeding, A as given false evidence.

3.- An investigation directed by a Court of Justice according to law, and conducted under the authority of a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice.

Illustration A, in an enquiry before an officer deputed by a Court of Justice to ascertain on the spot the boundaries of land, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceeding, A has given false evidence.

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Proposed Amendment

Section 344 A: Witnesses who turn hostile even after recording statement under Section 164A to be summarily punished with imprisonment for a period of three months which may extend to two years.

Thank you Mr. Aejaz Ahmed for the reply