Examination of Witness and Recording of Their Statement

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examination of witnesses

The term statement is not defined in the Code of Criminal Procedure but its dictionary meaning is the act of stating or reciting. Section 161 and 162 deal with the oral examination of witnesses by police, the record to be made of the statements and their use subsequently.

Section 161 Code of Criminal Procedure, 1973 headed as “Examination of witnesses by police” provides for oral examination of a person by any investigating officer when such person is supposed to be acquainted with the facts and circumstances of the case. The purpose for and the manner in which the police statement recorded under Section 161 can be used at any trial are indicated in Section 162. 

Examination of Witnesses By police- Section 161

The object of section 161 is to obtain evidence which may later be produced at the trial. In case of trial before a court of session or in case of trial of a warrant-case, a charge maybe framed against the accused on the basis of the statement recorded by the police u/s 161.

This section empowers the police to examine witnesses during the course of an investigation. Any person who is supposed to be acquainted with the facts and circumstances of the case may be examined orally. The words “any person” used in Section 161 (1) also include a person who may be accused of the crime and suspects as held by the Privy Council in Pakala Narayana Swami v. Emperor.[i]

Sub-section (2) bounds a person who is examined by police in course of investigation, to answer all questions put to him truly other than questions the answers to which are likely to incriminate him or expose him to a criminal charge. This section as well as Article 20(3) of the constitution gives protection to such person against questions exposing him to a criminal charge. Article 20(3) lays down a fundamental right that no person accused of any offence can be compelled to be a witness against himself.

In Nandini Satpathy v. P.L Dani[ii], the Supreme Court held that the accused person cannot be forced to answer questions merely because the answers thereto are not implicative when viewed in isolation and confined to that particular case. He is entitled to keep his mouth shut if the answers sought has a reasonable prospect of exposing him to guilt in some other accusation, actual or imminent, even though the investigation under way is not with reference to that.

The statements of witnesses under Section 161 should be recorded in the first person, and they should not be in indirect form of speech. No oath or affirmation is – required in an examination of witnesses under this section. It is not mandatory for the investigating officer to reduce in writing the statement of the person examined. But the statement, if recorded, must be recorded as it was actually made. As sub-section (3) prohibits making of précis of a statement recorded under Section 161 of the Code. It is also provided that statement made under this sub-section may also be recorded by audio-video electronic means. Also it is provided that a statement made by woman shall be recorded, by a woman police officer or any woman officer.

The Supreme Court in State of NCT of Delhi v. Ravikant Sharma[iii] explained the privilege in respect of statement of witnesses recorded under Section 161 during investigation and held that any direction to supply “gist” of such statements was unsustainable because such statement of witnesses recorded during investigation does not include interpretation of Investigation Officer.

Statements to police not to be signed; Use of statements in evidence- Section 162

In general, statement made to the police cannot be considered as substantive evidence i.e. as evidence of facts stated therein. Because it is not made during trial nor given on oath and nor tested by cross examination. If the person making any such statement to the police subsequently appears and gives evidence in court at the time of trial, his former statement could, however, be used to corroborate, or to contradict his testimony if it is a statement made during police investigation.

The object of Section 162 is to protect the accused both against overzealous police officers who cannot be trusted for recording the statement correctly and untruthful witnesses. Section 162 can be used for three-fold purposes namely:

  • It may be used by the defense for contradicting the prosecution witness;
  • It may be used by the prosecution for contradicting the prosecution witness with the permission of the court. This might be desirable if a prosecution witness is won over by the other side;
  • The witness whose previous statement is so used may be re-examined by way of an explanation if necessary[iv]

Sub-section (1) prohibits an Investigation Officer from taking the signature of the person questioned when his statement is recorded in writing. Violation of this mandate may weaken the testimony of the witnesses in trial Court. This bar also extends to the statements of the accused person. Such statements are not rendered inadmissible because they necessitate need deeper scrutiny before being accepted in evidence. The Supreme Court in Narpal Singh v. State of Haryana[v], held that the statements made in inquest report are hit by Section 162 and are inadmissible in evidence if the signatories were not examined, as witnesses.

In Laxman Kalu v. State of Maharashtra[vi], the Supreme Court held that when a person whose statement has been recorded under section 161, is not examined as a prosecution witness but as a witness in defense, the proviso to Section 162(1) does not come into play at all, and the prosecution cannot be allowed to confront a defense witness with his previous statement recorded during the examination under Section 161.

The protection under Section 162 is granted to the accused and that protection is unnecessary in any proceeding other than an enquiry or trial in respect of the offence under investigation and hence the bar created by the section is a limited bar. It has no application for example, in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution[vii] and a statement made before a police officer in the course of an investigation can be used as evidence in such proceedings provided it is otherwise relevant under the Evidence Act.

The explanation added to this section provides that an omission to state a fact or circumstance in the statement under Section 162 may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs. The fact whether any omission amounts to contradiction in a particular context is a question of fact depending upon circumstances of each case.

Evidentiary Value of Statements Made to Police

A statement recorded by a police officer during investigation is not given on oath or tested by cross-examination. According to the law of evidence this is not evidence of fact, so it cannot be treated as substantive evidence. Section 162 bans the use of the statements collected by the police in the course of investigation for corroboration.[viii] The reasons for the prohibition of the use of the statement made before police during the course of the investigation for the purpose of corroboration is that the police cannot be trusted for recording the statement correctly and as they are often taken down in an undetermined manner in the midst of confusion.

However, the proviso says that if the person giving the statement is called as a witness in court, the statement can be used to contradict his testimony. Defense witnesses cannot be contradicted using such statements. The proviso only applies to prosecution witnesses.

Provision of Examining Witness by Police in Other Countries

In Singapore, Criminal Procedure Code provides for the taking of statements by the police under Section 22 which allows the police to examine orally any person whom he believes to have knowledge of the facts and circumstances of the case under investigation. The examined person is bound to state the truth about the facts of the case, but the accused need not mention things that might expose him to a criminal charge. Such a statement made by the person is the witness statement.

Pakistan’s Code of Criminal Procedure has similar provision for examination of witnesses by police as in India. The law is exactly similar on this point (Section 161 and 162). The Canadian common law also provides for examining a witness by police before framing of charge. The witness has to answer all the questions truly but he also has Right to Silence and and against Self-Incrimination.

 In United Kingdom a “witness statement” is a written record of that evidence. An investigator may take a statement from a witness in the course of an investigation. The evidence that the statement contains can affect a number of important decisions connected with the investigation.  If there is a prosecution that leads to a trial, the witness may be called to give oral evidence. However there are procedures whereby the contents of a witness statement may be used as evidence in criminal proceedings without the witness being required to attend court. ‘Statements’ can be those taken voluntarily on a form compatible with section 9 of the Criminal Justice Act (CJA) such as an LP70 and written record of compelled information taken under section 20 of the HSW Act., the LP7 form. The latter has limitations on how it can be used in court proceedings.

Illustration

1. If a statement is recorded by police, under the provisions of Section 162 the accused must not be asked to sign the same as it is barred by the section and violation of this provision may sometimes diminish the value of the testimony of the witnesses when they come to court

2. If a person X is supposed to be acquainted with the circumstances of a case, police officer investigating the case is allowed to examine such person orally and reduce the statement made by such person into writing.

3. If a person C was asked questions self-incriminatory in nature during investigation by police, such a person is not bound to answer those questions by the virtue of Section 161 and 162 of the code.

4. If some statement has been recorded of a person Y, such statement can be used to contradict such witness but not to corroborate in the later stage of trial.

Frequently Asked Questions 

1. Can a statement recorded under Section 161 be treated as substantive evidence?

Statement made to the police cannot be considered as substantive evidence because it is not made during trial nor given on oath and nor tested by cross examination.

2. Can the accused person also be examined under Section 161 of the code?

Yes, the accused person can also be examined under the scope of section 161 as the expression “any person” includes accused person as well.

Reference

[i] Pakala Narayana Swami v. Emperor, AIR 1939 PC 47

[ii] Nandini Satpathy v. P.L Dani, 1978 SCC (Cri) 236

[iii] State of  NCT of Delhi v. Ravikant Sharma (Crl.) No. 3480, 2006

[iv] Mahabir Mandal v. State of Bihar, (1972) 1 SCC 748

[v] Narpal Singh v. State of Haryana, 1977 AIR 1066

[vi] Laxman Kalu v. State of Maharashtra 1968. SCR 685

[vii] Khan Mohd. Reas Ahmad v. State of Maharashtra

[viii] Baleshwar Rai Vs State of Bihar (Crl) No 176 to 178 of 1961

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Ayushi Tripathi
I am Ayushi Tripathi from Amity Law School, Lucknow pursuing my BA.LLB (H). My areas of interest are Criminal Law, Company Law, and Human Rights. In my free time, I love to read about legal topics and current issues. I have presented various research papers mainly focussing on human rights and have participated in moot courts, debates, youth parliament, etc. I aim to become a part of Indian Judiciary to be able to serve the country. Exploring new places and writing is my favorite pass time.

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