NULLIFYING IMPACT OF SECTION 162 Cr.P.C. ON STATEMENTS MADE DURING INVESTIGATION

A M U R D E R C A S E

There are two eye-witnesses to the incident of stabbing. Both these witnesses are neighbours of the deceased victim. The first witness (PW1) is the first informant. The second witness is PW2. The First Information Statement of PW1 under Section 154 Cr.P.C. and the 161 statements of both PWs 1 and 2 are almost identical. PW 1 gave evidence in accordance with his First Information Statement. We are concerned with the testimony of the second witness (PW2). A The 161 Statement of PW 2 is to the following effect:-

The accused and the victim were arch enemies. This witness (PW2) is distantly related to the victim and not keeping good relations with the accused. On the ill-fated day the accused who is residing 2 Kms away from the house of the victim was seen approaching the victim’s house at about 6 PM. At that time this witness (PW2) was engaged in the house of the victim for cleaning the house. Seeing the accused coming towards his house, the victim took a knife from his kitchen and stepped into his courtyard and attacked the accused with the knife. The accused while warding off the attack sustained a minor injury on his left arm. There was a scuffle between the victim and the accused. The accused soon overpowered the victim and snatched the knife from him and stabbed the victim on his front left chest. The victim who sustained a deep penetrating injury to his chest died on the spot.


B The version regarding the incident in the oral evidence of the witness (PW2) during the trial of the case:-


When the accused approached the victim’s house there took place an altercation and a push and pull between the accused and the victim in the

courtyard of the victim’s house. During the scuffle the accused took out a knife kept concealed in his waist and stabbed the victim on the front left chest. The penetrating injury inflicted by the accused was so deep that the victim succumbed to the injury then and there.

SOME COMMENTS ABOUT THE TESTIMONY OF THIS WITNESS

This is a case where, presumably due to his rancour towards the accused, this witness (PW2) was turning out to be a cunning performer in the witness-box. PW2 seemed to deliberately suppress his own 161 statement wherein he had told the police that it was the victim who brought the

knife from his kitchen and armed with the said knife it was the victim who was the aggressor. The witness made a new case in his testimony in Court to say that the knife was with the accused who had kept it concealed in his waist. Since PW2 was fully implicating the accused, the Public

Prosecutor did not choose to declare the witness hostile.


CROSS EXAMINATION BY THE DEFENSE

Q.1 Is it true that seeing the accused approaching his house, the victim took a knife from his kitchen?

Wit. It is not true.

Q.2 Did you tell the police that the victim took a knife from his kitchen?

Wit. No. I did not.

Q.3 I put it to you that you had made such a statement to the police? (The relevant portion in the 161 statement is read over to the witness).

Wit. No. I did not say so to the police.

Q.4 If the police have made a record of your statement as read out to you above, what have you got to say?

Wit. I don’t know.


My question to the viewers: Is this a “contradiction” or “omission”?

How to mark the contradiction?

Is it subject to proof?


Cross-examination continued

Q.5 Is it correct to say that it was the victim who initially stabbed the accused?

Wit. No. It is not correct.

Q.6 Did you tell the police it was the victim who initially stabbed the accused?

Wit. No. I did not.

Q.7 I put it to you that you had given such a statement to the police? (The defense counsel reads the relevant portion of the 161 Statement to the witness).

Wit. No. I did not say so to the police.

Q.8 If the police have made a record of your statement as read out to you above, what have you got to say?

Wit. I don’t know.

My question to the viewers: Is this a “contradiction” or “omission”?

How to mark the contradiction?

Q.9 You deposed before this Court that the accused took out the knife from his own waist. Did you say so before the police when you were questioned during investigation?

Wit. Yes. I had told the police.

Q.10 Your 161 statement does not say that you had made such a statement. What have you got to say?

Wit. It is not correct. I had said so to the police.


My question to the viewers: Is this a “contradiction” or “omission”?


Cross-Examination Continued

Q.11 Did you not tell the police that the victim had kept the knife on the front parapet of his house during the altercation and the accused had picked it up from there ?

(The public prosecutor objected to the question)

Wit. Yes, I said so to the police.

Q.12 But in your 161 statement you do not appear to have said so to the police. What have you got to say ?

My question to the viewers: Is the objection sustainable ?


THE IMPACT OF SECTION 162 (1) Cr.P.C

Q.1 Is not a statement made to the Station House Officer (SHO) leading to the registration of a crime, hit by Section 162(1) Cr.P.C ?

Q.2 A newly wed couple takes a house on rent in the town where the husband is working. One night they go for a second show movie. When they return to the house they find that the house has been burgled. The wife, to her agony, finds that all her gold ornaments kept in the bedroom cupboard missing. A written complaint is prepared for lodging in the local police station. The missing ornaments and their description are enumerated in the complaint which is soon handed over to the S.H.O at the police station. An FIR is registered against unknown culprits. After reaching home the wife recollects that she omitted to mention 5 more missing ornaments. The couple rushes to the police station and gives an additional list of missing ornaments. During the trial of the case, after marking the F.I Statement of the first informant, the additional list of ornaments is sought to be marked as part of the F.I Statement. The defense objects to the marking. Is the objection sustainable?

Q.3 Is not the bar under Section 162 (1) Cr.P.C applicable to a dying declaration falling under Section 32(1) of the Evidence Act and recorded by the investigating police officer ?

Q.4 A charge witness who was given up by the prosecution is examined as a defense witness. During his cross- examination by the P.P. a case diary contradiction is sought to be marked by the P.P. The defense counsel objects to it.

Is the objection sustainable ?

Q.5 Assailing the detention order passed under the National Security Act, 1980 which is a Central Law for preventive detention, the Advocate appearing for the detenue contends that the Detaining Authority erred in placing reliance on the statements of witnesses recorded by the

Police under Section 161 Cr.P.C. The Advocate relies on para 23 of the decision of the Supreme Court in Pebam Ningoi Devi v. State of Manipur (2010) 9 SCC 618 to contend for the position that such statements, being hit by Section 162 Cr.P.C., cannot be relied on as substantive

evidence. Is not the argument sound?

Q.6 A Charge witness given up by the prosecution is examined as a “Court witness”. Is the embargo under Section 162 (1) Cr. P.C applicable to him ?

Q.7 The statement of a witness given to the police officer under Section 161 (3) Cr.P.C is attempted to be made use of to contradict the very same witness in a civil case. Is it permissible ?

Q.8 Does the embargo under Section 162 (1) Cr.P.C operate in the case of a witness for the prosecution in a trial on a protest complaint pursuant to a closure report (refer report) filed by the police ?

Q.9 A police report filed under Section 173 (2) Cr.P.C for an offence punishable under Section 306 Cr.P.C is challenged in a petition filed before the High Court under Section 482 Cr.P.C. Is it permissible for the High Court to rely on the statements recorded under Section 161 Cr.P.C ignoring the bar under Section 162 (1) Cr.P.C ?

Q.10 A prosecution witness is declared hostile during chief examination and the P.P with the permission of the Court examines him by putting leading questions. Is it chief examination or cross-examination ?

Q.11 What is the relevance of the terms “hostile witness”, “adverse witness”, “unfavorable witness” or “unwilling witness” in the context of the Indian Evidence Act ?

Q.12 When can the Public Prosecutor treat his own witness hostile ?

Q.13 Can the P.P. seek permission under Section 154 of the Evidence Act during re-examination ?

Q.14 During the trial of a case instituted on a police report, when the prosecution witness turns hostile to the prosecution by deviating from his 161 statement, is the P.P. expected to seek the permission of the Court and, if so, under what provision of law ?

Q.15 Is it correct to say that an omission, in order to be significant, must depend upon the fact whether the specific question, the answer to which was omitted, was put to the witness ?

Q.16 During the course of an inquiry under Section 202 Cr.P.C, the Magistrate forwards the complaint for investigation by the police. The police officer, after conducting investigation, files a report along with signed statements of the witnesses interrogated by him. Is it legal and can those statements be used for contradiction and corroboration ?

Q.17 In a cheating case where a bank was defrauded, the investigating officer, with a view to find out whether the name and address given by the accused to the bank, was fictitious or not, sends a registered letter to the address furnished by the accused to the bank. The letter was

returned unserved by the postal authorities with the endorsement “no such addressee”. The investigating officer sends a written requisition to the postman who had attempted service to find out whether the addressee was fictitious. The postman sends a reply to the investigating

officer stating that there was no such addressee. When the correspondence between the I.O and the postman are sought to be marked, the defense objects to the same. Can the objection be sustained ?

Q.18 Section 133 of the Motor Vehicles Act, 1988 reads as follows:-

“The owner of a motor vehicle, the driver or conductor of which is accused of any offence under this Act shall, on demand of any police officer authorised in this behalf by the State Government, give all information regarding the name and address of, and the license held by, the driver or conductor which is in his possession or could by reasonable diligence be ascertained by him”

In a prosecution for offences punishable under Sections 279, 338 I.P.C. and Secs. 183 to 185 of the Motor Vehicles Act, the defence objects to the marking of a written reply given by the owner of the bus regarding the name and other particulars of the driver of the bus. According to the

defence, the said reply is hit by Sec. 162 Cr.P.C. The A.P.P. argues that the reply was given in obedience to a statutory obligation under Sec. 133 of the Motor Vehicles Act and is admissible. Is the defence objection sustainable ?

Q.19 On receiving information, a Sub Inspector of Police proceeds to the spot and seizes contraband articles in the presence of witnesses. He, thereafter registers the crime by recourse to Sec. 154 Cr.P.C. During the trial of the case, the Public Prosecutor, by placing reliance upon (2001) 9 SCC 581 and (2007) 1 SCC 630 which held that the registration of a crime is sine qua non for the commencement of investigation,

argues that since the statement of witnesses were recorded even prior to the registration of the crime, those statements were not made to an investigating police officer so as to attract the bar under Sec. 162 (1) Cr.P.C. and consequently those statements can be used for corroboration as well. Is not the above argument sustainable?

Q.20 Does the statement of a witness to a Police officer holding an inquest attract the embargo under Section 162(1) Cr.P.C?

Q.21 What about the statement of a witness recorded in the words of the I.O in the body of the inquest report ?

Q.22 What about signed statements of witnesses annexed to the inquest report ?

Q.23 The investigating Police Officer who had not seen the occurrence has marked the exact spot of crime in the scene

mahazar. Is it hit by Section 162(1) Cr.P.C?

Q.24 One Balu who had witnessed the abduction of a boy by the accused was murdered by the accused. During the trial of the murder case of Balu the statement of Balu recorded under Section 161 Cr.P.C. in the abduction case is sought to be proved by the prosecution. The defence objects to the admissibility of Balu's statement. The Public Prosecutor argues that the statement of Balu will fall under Section 32 (1) of the Evidence Act and is not hit by Section 162 (1) Cr.P.C. since it is saved under Section 162 (2) Cr.P.C. Is the defence objection sustainable ?

Q.25 Is a signed statement taken by an officer of the Railway Protection Force during an enquiry under Sec. 8 (1) of the Railway Property (Unlawful Possessions) Act, 1966 hit by Sec. 162 Cr.P.C.?

Q.26 In a corruption case, after the tainted currency notes were accepted by the accused public servant from the complainant, the police officer who laid the trap entered the office room of the accused and asked him as to where he had kept the tainted money. The accused then took out

the money from the second drawer on the right hand side of his table saying that it was there that he kept the money. Is not the above statement hit by Section 162 Cr.P.C. and Section 25 of the Evidence Act ?

Q.27 During the inquiry under Section 452 Cr.P.C for the final disposal of the property in a theft case, the Magistrate relies on the case diary statements of the goldsmith, the accused etc. The defense counsel objects to the action of the Magistrate by contending that those statements are hit by Section 162 Cr.P.C which covers even inquiry. Was the Magistrate justified in relying upon the case diary statements ?

Q.28 The Division Bench of a High Court made the following observation in the course of disposing of a Criminal Appeal in a murder case:-

“19. It is settled law that even a statement recorded by the Magistrate in terms of Section 164(5) can only be used for the purpose of contradiction. The statement recorded under Section 164(5) cannot have any validity as such and cannot be treated as evidence before a Court. It has the same characteristics of a statement recorded by the Police under Section 161 and can be utilized only for the purpose as provided in the proviso to Section 162 r/w Section 145 of the Indian Evidence Act, 1872. Therefore, no prejudice will be caused to the accused even if there is any irregularity in recording the statement under Section 164 by the learned Magistrate. In the case on hand, the argument is with reference to statement given by PW2, a child witness to the Magistrate under Section 164 of Cr.P.C.”

Is there any fallacy in the above statement of law?


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