This article has been written by Bidisha Banerjee, a 2nd year B.A LL.B student of Jogesh Chandra Chaudhuri Law College, University of Calcutta.

INTRODUCTION

Evidence is considered as the most important ingredient in taking a case forward. Evidence can flip the course of a case and alter the course through which the case has been flowing. There is no way a case can stand without evidence. 

A witness is a person who testifies in front of the court of law about what they personally know regarding the incidents, crimes or happenings. They can be any person who can perceive any fact using their senses. A person will be considered a competent person if he can perceive anything through his eyes or ears or smell or sensation or touch or any other reasonable mode.They can shed light on facts, unknown or hidden in the case. In other words, they can also be called the “eyes and ears of justice”. 

A witness statement is a document recording the evidence of a person, which is signed by that person to confirm that the contents of the statement are true. In India, ‘witness statement’ falls within the purview of Section 161 of the Criminal Procedure Code, 1973(Cr.P.C). 

BODY

The dictionary meaning of the word ‘statement’ is the act of stating or reciting. Although the term ‘statement’ is not defined under the CrPC Act, the term has whole other connotations. In general, statements are actually recorded in Sections 161 and 162 of the CrPC. 

Titled “Examination of witnesses by police”, Section 161 of the Criminal Procedure Code provides that a police officer must conduct an oral examination of a person, who is supposed to be acquainted with some information pertaining to the facts and circumstances of the case. The purpose for and the manner in which the police statement recorded under Section 161 Cr.P.C can be used at any trial are indicated in Section 162 CrPC. As per Section 162, it is prohibited to sign the statement recorded under Section 161.
In the State of Rajasthan v. Teja Ram and others (1999), the Supreme Court held that the provisions of the 

Section 162 of the CrPC does not render a statement by the witness in the court inadmissible. Rather, it further signals the court to be cautious and thoroughly examine the facts, if it is found that the witness signed the statement of witnesses recorded during the investigation at the officer’s request.

In H.N. Rishbud and Inder Singh v. State of Delhi (1954), the Apex Court laid down the steps that a criminal police enquiry was composed of. They are as follows:

1. Going to the crime scene.
2. Investigation of the case’s facts.
3. Detection and arrest of the alleged perpetrator.
4. Gathering of evidence.
5. Determining whether it is necessary to present the accused before a Magistrate for trial and if so, taking all required procedures by compiling a charge sheet by Section 173, CrPC, 1973.

How is the examination done by the police?

‘Civilised people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable’: this was the observation made by the Hon’ble Supreme Court in Appabhai Vs. State of Gujarat AIR 1988. Section 161 empowers the police to make enquiries regarding the case and lays down how the police must examine the witness for evidence.

1. Any police officer who is investigating under this Chapter, or any police officer not below such rank as prescribed by the State Government, by general or special order,acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case. ‘Any person’ includes someone, who has the possibility of being accused subsequently.
2. That person must answer the questions relating to the facts and circumstances of the cases truthfully. But, he may choose not to answer any question by the officer, which might lead to his incrimination. This is in line with the fundamental right mentioned in the Article 20(3) of the Indian Constitution. According to this Article, no one can be forced to testify against oneself, if one is accused of crime. One can remain silent or refuse to answer. 
3. It must be made sure for the statement to be recorded in first person and not in indirect speech. There is no such requirement as to administer an oath or affirmation for recording a witness statement. It is prohibited to make a synopsis of the witness statement. Also, the statement can be recorded in audio visual format.  

 It must also be kept in mind that the statement of a woman against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of The Indian Penal Code is alleged to have been committed or attempted, shall be recorded, by a woman police officer or any woman officer.

Statements made under Section 161 can only be used to contradict the witness during the trial. Witness statements must be taken as early as possible. While a delay of a few hours can be entertained, the delay must not be such that it raises suspicions of it being intentional. If the delay in investigation cannot be explained, then the truthfulness behind the evidence will be questioned, as held in Ranbir v State of Punjab (1973).  

Contradiction and Omission

If the witness gives the statement before the Court about the existence of a certain fact while not mentioning the same before the case, his statement before the court and the police becomes contradictory. Thus his statement before the police could be used to contradict his testimony before the court.

If the witness testifies a certain fact in his examination-in-chief, while he did not mention such fact in his statement during the police investigation, the court has to decide whether such omission is minor or not. If the Court finds such omission to be material to the court, it would be material contradiction.

In Syyed Husan v. State(1958), it was held that the correct way and the proper way of proving a contradiction or omission is to ask the investigating officer (SI) about it in his evidence, as to whether a certain statement was made before him by a witness. If such a procedure is not adopted, it cannot be said that there was proof that in fact the statement concerned was not made by the witness. It is for the trial judge to decide in each case, after comparing the part or parts of the statement recorded by the police with that made in the witness box, to give a ruling having regard to the aforesaid principles whether the recital intended to be used for contradiction satisfies the requirements of law.

 In Ponnuswamy Chetty v Emperor, it was held that a minor omission could not be called a contradiction.

CONCLUSION

Interrogation forms a very important part of the criminal enquiry. Collecting witness statements by abiding by the procedure mentioned in law plays a fundamental role in providing assistance to the prosecution, leading up to conviction. While Section 161 of the CrPC provides protection to the witnesses from fanatical police officers, it is not devoid of flaws. More stringent rules must be brought into practice for the porvision to be more effective.

REFERENCES

https://www.writinglaw.com/witness-and-types-of-witness/#:~:text=Witness%20is%20a%20person%20who,or%20any%20other%20reasonable%20mode.

https://legalserviceindia.com/legal/article-8565-the-art-of-examination-of-witness-as-per-indian-evidence-act.html

https://districts.ecourts.gov.in/sites/default/files/scjrajam.pdf

https://blog.ipleaders.in/witnesses-under-the-indian-evidence-act/

https://blog.ipleaders.in/section-161-crpc/#Statements_recorded_under_Section_161_CrPC
https://www.leadindia.law/blog/en/recording-of-statement-under-section-161-of-crpc/