This article has been written by Adv. Aniket P. Kamtam, a 2nd Year MBA-LAW Student from SVKM’s NMIMS SBM College, Vile Parle West.
The terminology Witness-statement is the joint of two individual words “Witness” and “Statement”.
Let’s see what does this word means in black’s law dictionary.
Witness: One who sees, Knows, or vouches for something. Like: A Witness to a testator’s Signature. One who gives testimony under oath or affirmation; in person; by oral or written deposition; or by affidavit Like: A witness to the signature signed the affidavit. A witness must be legally competent to testify, that means he is sound enough to understand the nitty-gritty and able to express through his expressions whether by action, orally or written.
Statement: Evidence. A verbal assertion or nonverbal conduct intended as an assertion. A formal and exact presentation of facts, also termed (for plaintiff) statement of cause of action. Criminal procedure; an account of a person’s knowledge of a crime, taken by the police during their investigation of the offense.
Under CRPC the witness statement is taken by investigation agency or by magistrate under section 161 & 164.
As per Section 161(1) of CrPC the police can examine orally any person supposed to be acquainted with the facts and circumstances of the case.
Expression ‘any person’: meaning of
An order can be made requiring the attendance of ‘any person’ (except women and males under 15 years of age). The expression ‘any person’, in its ordinary meaning, including any person, though he might thereafter, become an accused. Investigation in crime often includes examination of a number of persons none of whom or all of whom might be suspected at the time. The words ‘any person’ will, therefore, include any person who may be possibly not even suspected then but subsequently be accused of the crime; Pakala Narayana Swami v. Emperor :AIR 1939 PC 47.
Under Section 161(2) of CrPC such person is bound to answer truly all questions relating to such case put to him by such officer, but such person is not required to answer those questions, the answers to which could or may have the tendency or scope to expose himself to a criminal charge or to a penalty or forfeiture.
Statement recorded under this section is not substantive evidence. A statement made to the police officer by any person examined in the course of investigation recorded under section 161 of the Code is not and cannot be treated as substantive evidence except when falling within the provisions of Clause (1) of section 27 of the Indian Evidence Act. It may be used only for the purpose of contradicting the evidence of the prosecution witnesses and not for the purpose of corroborating their evidence nor for contradicting a person examined in the course of investigation who later figures either as a court-witness or as a defence witness; Shamim v. State of Bihar, 1986 Cr LJ 1383.
Under Section-161(3) police officer may or may not reduce the statement of question and answer between him and the person so-called for investigation, in writing.
Section 161(3) of CrPC gives discretion to a police officer to reduce into writing any statement made to him during investigation. If he exercises his discretion in favour of reducing the statement into writing, he is bound to make a separate and true record of the statement of each person whose statement he records. The matter does not rest with his direction here; Shive Sharnagat v. State, AIR 1953 Bhopal 21 (23). Failure to comply with the requirements of section 161(3) might effect the weight to be attached to the evidence of the witness, it does not render it inadmissible; Tilakeshwar v. State of Bihar: AIR 1956 SC 238 (240).
Under Section- 162(1) the statements made to any police officer by any person in the course of investigation and if it is reduced in writing by that police officer, the person making such statement is not required to sign those written statement or any record. Under section 162(1), the person making any statement in connection with the investigation being conducted by a police shall not sign the statement if it is reduced to writing, nor can this statement or any other record thereof can be used for any purpose (except those mentioned) at any inquiry or trial in respect of any offence under investigation at the time when such statements were made.
Under Section- 164(1) A Metropolitan magistrate or judicial magistrate may, whether or not he has jurisdiction in the case record any statement made to him in the course of an investigation under chapter 12 of CrPC or under any law for the time being in force or at any time afterwards before the commencement of the inquiry or trial. Magistrate also include the District magistrate or Executive magistrate of police or any other administrative authority empowered with the magistrate power.
This statement can be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence.
Distinction between recording of statements of accused and of witnesses: There is a vital distinction between recording statements of accused persons and the recording of statements of witnesses. The same precautions which are prescribed for recording the confession of accused persons need not be observed while recording the statements of witnesses, and, therefore, it is not necessary to exclude the police from the court, though the Magistrates have the power, if they think it necessary to ensure the voluntary character of the witnesses’ statements and have any reasons to apprehend that the police are exercising influence over them, to exclude the police or in fact any other person from the court during their examination under this section. But they do not require to do so by law and the practice is likely to lead to the statements of witnesses being incomplete, as only the police who have investigated the case know the information which the witnesses are likely to give and the Magistrate without their help will not be able to elicit all that the witnesses are able to speak about. In such a case, it is difficult to discount the evidence of the witnesses in Court if their statements under this section contain any omissions and are, therefore, not fully corroborative of the evidence in Court; Pullamma v. Emperor, 1932 Mad Cr C 67.
Section- 164(5) of CrPC states that Any statement (other than a confession) made under section 164(1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate (can be any kind of magistrate as empowered), best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.
Most importantly the magistrate recording the statement under Section 164(1) as per 164(5) shall as per 164(6) forward that statement recorded, to the magistrate by whom the case is to be inquired into or tried. That means the right and proper court of law having jurisdiction over that case for which the magistrate has recorded the statements under section 164(1) & (5) of CrPC.
Precedential Interpretation for Section- 161 of CrPC:
(a)The value of prompt interrogation of a witness during investigation cannot be over emphasised because the same eliminates to a very large extent, the possibility of an adulterated occurrence creeping in the testimony of a witness. [1]
(b) Investigating officer has to perform his duties with the sole object of investigating the allegations and in the course of the investigation he has to take into consideration the relevant material whether against or in favour of the accused. [2]
(c) Court’s failure to put any question on reference to statement under section 161, advance impression cannot be drawn by court. [3]
(d) Court while using a previous statement recorded under section 161 should bear in mind the restrictions imposed under section 162. [4]
- State of Maharashtra v. Joseph Mingal Koli, (1997) 2 Crimes 228 (Bom).
- Mohd. Jainal Abedin v. State of Assam, (1997) 2 Crimes 660 (Gau).
- Dandu Laxmi Reddy v. State of Andhra Pradesh, AIR 1999 SC 3255
- State of Kerala v. Babu, AIR 1999 SC 2161