Heinous crimes such as rape, murder, dacoity with murder, dowry death among others are of a very grave nature and perpetrators of such crimes shall be brought to justice. In pursuit of justice, one of the main roles is played by the witness. From lodging an FIR to providing evidence in court, he plays an indispensible part of the justice delivery system of our country.
This paper deals with one aspect related to witnesses of heinous crimes, which is recording of their statement by Magistrate under Sec. 164 of Code of Criminal Procedure(CrPC) and its use. Statements recorded are given different importance in different cases depending upon the circumstances prevailing. The jurisprudence involving Sec. 164 is still evolving with the help of judicial pronouncements and scholarly writings.
The paper first deals with the rationale and purposes of legislature behind enacting Sec. 164, CrPC. Thereafter, with the aid of case laws relating to grave offences such as murder, rape etc., it attempts to analyse how and when statements under Sec.164 can be used. Finally, it deals with the problem of retracting of statements and hostile witnesses, which has become a common occurring in our criminal justice system. While examining case laws, the researcher has also suggested some possible measures to curb this menace
The researcher has followed the qualitative method for the purpose of this research work. The data used in the paper is from credible sources such as government publications, case laws, statutes and legislations.
1. Recording of Statement : Rationale, Purpose and Uses
Section 164, CrPC empowers any Metropolitan or Judicial Magistrate whether or not he has jurisdiction in the case to record any confession or statement of a person made in the course of investigation by the police, or (when investigation has been concluded) at any time afterwards but before the commencement of the inquiry or trial. It applies only to statements recorded in investigation under Chapter 12 and is limited to the period before the inquiry or trial [1] .
Since, it does not specifically mention any person whose confession or statement has to be recorded; it may be of an accused or a witness or victim. For the purpose of this project, we are mainly concerned with statement of witnesses and victims.
1.1 Rationale for recording statements :-
Maxim of habemus optimum testem, confitentem rem (confession is the best evidence against the maker). The rationale behind this rule is that ordinary, normal and sane person would not make a confession which would incriminate him unless urged by promptings of truth and conscience [2] .
However, an admission by a witness that his statement was recorded and that what he had stated there was true would not in itself make the statement admissible and substantive evidence in the case [3] .
1.2 Purpose : -
Signature of witness on the statement acts as an accountability mechanism by keeping him in a fix, not resiling from his earlier statement.
Because of the unreliability of the police and their tendency to adopt third degree methods for extorting statements, all statements by witness to the police are prohibited from being used as evidence by Sec. 162, except for the strictly limited purpose of contradiction of prosecution of witnesses during the trial [4] . The intention for enacting Sec. 164 is to protect witness against extortion and oppression by police. The presence of Magistrate being a safeguard, is equivalent to removal of police influence and if a confession is made before a Magistrate, it can be relied upon [5] .
However, sometimes the total ban imposed on statements to the police results in the loss or neglect of useful information. The first information of an offence under Sec. 154 is recognized to be of considerable value as it is the original story given shortly after an offence before there is time to forget, embellish or fabricate the facts. It has also been held that statements made soon after the incident are far more trustworthy than later statements or embellishments [6] .
1.3 Use of Statement recorded Under Sec. 164 :-
First of all, a distinction has to be drawn between a 'statement' and a 'confession'.
'Statement' under Sec. 164 refers both to the statement of a witness and that of accused, irrespective of whether the latter amounts to a confession or not. The distinction is not between persons making the "statement" but in the mode of recording a statement and a confession as laid down in sub ss. (4) and (5) [7] . A confession is an admission of the offence by a person charged with the offence [8] . But a statement which contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed [9] .
The statement recorded under Sec. 164 cannot be used as a substantive evidence. It can be used either for contradiction or for corroboration of the witness who made it, as per Sec. 145 and 157 of Indian Evidence Act [10] , but not for contradiction of other witnesses [11] . It can be used to cross examine the witness and show that the evidence given by him is false or unreliable. This, however, does not establish by analogy that what he has stated under Sec. 164 is true [12] .
It can also be used to impeach the credit of prosecution witness under Sec.155, Evidence Act, with the Court's permission [13] .Witness, however, cannot be prejudiced as to be unreliable on the sole ground that his statement was recorded under Sec. 164 [14] .
Any statement made before a Magistrate and duly recorded under Sec. 164 considered a public document under Sec. 74, Indian Evidence Act of 1972 [15] . The effect of recording statement under S. 164 is a question primarily relating to the appraisement of evidence. Statements under Sec. 164 are construed differently under different circumstances. They are case specific.
For e.g., in a murder case, statements of injured witness recorded by Magistrate as dying declaration who survived, was treated to be a statement recorded under Sec. 164 and was held valid for the purposes of corroboration [16] . In a case under Sec. 396, IPC relating to dacoity with murder, court held that statement by witness recorded in identification parades are also recorded under Sec. 164 [17] .
Statements given by a person at a time when he was not accused are valid. In case of Collector of Customs, Madras v. Kotumal Bhirumal Pihlajani, statements were recorded following recovery of a consignment of gold from certain persons in the course of investigation under Sec.107 of Customs Act, 1962. But at the time when the statements were recorded, the investigation has not reached the stage when particular persons had been accused of an offence. It was held that such statements were valid under Sec. 164, CrPC and constitutional protection under Art.20(3) could not be availed of, in respect of such statements [18] . Also, a person who makes a statement under this section, which is knowingly false, is punishable for an offence under sec. 193, IPC [19] .
In case of heinous crimes such as rape, murder, dacoity with murder, attempt to rape, dowry death etc, additional care should be taken while recording statement of victim, as disregard of provisions may lead to serious difficulties. For example, the apex court has held that statements made by the accused to the Magistrate in verification proceedings are inadmissible if not recorded under Sec. 164 [20] . Thus, in the case where pointing out the accused by a girl, when she was questioned by the Police Officer as to whether the accused was the person who raped her, was observed to be a statement made to Police Officer, and thus inadmissible [21] .
Supreme Court, however, has shown some leniency in interpretation of the provision in case of serious offences. In the case of State of AP v. Sheikh Mazhar, which involved murder of a 10 year old girl child, the court refused to accept the contention that statement of witness, which was recorded under Sec. 164 after an interval of one month from the date of occurrence of crime, amounted to belated revision [22] . Nevertheless precaution to be taken in such cases, is to record statement in due time. Court in a murder case, Bachan Lal v. The State has deemed a statement under Sec. 164 recorded after investigation has concluded and inquiry has commenced, to be inadmissible [23] . It is also to be noted that the recording of statement under Sec. 161 is a condition precedent for recording statement under Sec. 164, CrPC [24] .
A Magistrate may record statement under Sec.164 even though the investigating agency have not taken any initiative to request the Magistrate to record the statement. Magistrate should, though, look into the police diary and give sufficient time for reflection and also ascertain the bona fides of the parties concerned before recording statement suo moto [25] . This power can be used by Magistrates in cases of murder, rape etc. whenever he suspects inaction on the part of the police in inquiring for the same. The Calcutta High Court has severely condemned the procedure of the Magistrate who recorded the statement previously taken by the Investigating Police Officer [26] .
A major area of concern is cases where a witness whose statement had been recorded under Sec. 164 is not produced by the prosecution. Then, the accused may invoke in his favour the presumption under sec. 114, ill. (g) of the Evidence Act, according to which if witness had been produced and offered for cross-examination by the accused, it would have damaged the prosecution case [27] . The concern is similar to that observed in cases of retracted confessions and hostile witnesses, which have been examined in the following section.
2. Retracted Statements and Hostile Witnesses
The admissibility or value of a retracted statement belongs to the subject of evidence. It has been held by the Supreme Court that its use does not contravene Art. 20(3) of the Constitution [28] . Also, a statement is not to be regarded as involuntary or unlawfully induced merely because it has been retracted. The person should give sufficient reasons as to why and how he made it [29] .
2.1 Hostile witness :-
Hostile witnesses are mostly the one who are "harassed" and "intimidated" and should be considered as another category of 'victims'.
The term viction has not been defined under CrPC. The U.N. Declaration of Basic Principle for Victims of Crime and Abuse of Power, 1985 defines 'victims' as [30] ,
" 'Victims', mean persons who, individually or collectively have suffered a harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights."
Article A 2 widens the ambit, to include [31] , "immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent 'victimization'."
Thus, as per the definition given by UN, witnesses, who are intimidated and harassed, fall under the category of a 'victim'.
Supreme court in Gura Singh v State of Rajasthan [32] tried to define hostile witness and laid down that under the common law the hostile witness is described as one who is not wilful of disclosing the facts at the request of one party calling him and an unfavourable witness is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such facts or proves the opposite test.
Supreme Court has observed the following in the case of State of UP v. Ramesh Prasad Misra [33] :
"it is equally settled 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."
Witness turning hostile many a times lead to fall of prosecution case, especially so in cases of odious crimes such as murder, rape, child slavery etc. In our criminal justice system, benefit of doubt is always given to accused. This proposition has been analyzed below with help of few high profile cases including Jessica Lal murder case, BMW hit and run case and Best Bakery Case.
Jessica Lal Murder Case : She was shot after she refused to serve drink to two men in a South Delhi bar. The prime accused in the case was Manu Sharma, son of a former Union Minister. This was an open and shut case, still it took 8 years for the court to deliver the verdict. The prime reason of this delay was that all three key witnesses, who were Jessica Lal's friend, turned hostile [34] .
Suggestion : If statements made under Sec. 164 are made admissible in the court of law, it will deter witnesses from frequently changing their stance. 48th Report of Law Commission of India has also suggested that statements to Magistrate shall be made admissible in trial courts.
BMW hit and run case : A black BMW car hit seven people in Delhi on Jan 10, 1999. The initial testimonies of witnesses and a film recorded by police led to the conclusion that hit-and-run was caused by three drunk men, Siddhanth Gupta, Manik Kapoor and the driver Sanjeev Nanda [35] , who is the son of arms dealer Suresh Nanda and grandson of former Navy Chief Admiral S.M. Nanda. By 2003, all except one eyewitnesses turned hostile.
Suggestion : There is a need for a witness protection program in our country. Witnesses are frequently intimidated, harassed or bribed, especially in high profile cases such as that of Sanjeev Nanda. Many countries such the Canada, Australia, Thailand, United States of America, South Africa among others have endorsed witness protection legislations. The gravity of the situation can be observed by analyzing the Best Bakery Case, which led to undermining of public confidence in criminal justice system of our country.
Best Bakery Case : It involved burning down of a Bakery in Vadodra, Gujarat taking lives of 14 people, which included 12 Muslims. This happened in the background of 2002 Gujarat communal riots. A report by human rights organization Amnesty International showed that police failed to collect witnesses statements [36] . In case of a witness, Rahish Khan Pathan, as per doctors at a hospital in Vadodara had stated, due to serious injuries his mental state did not permit him to give any statement. Still, his statement was recorded, which was later held to be inadmissible. The main controversy was regarding frequent change in statements made by Zaheera Sheikh, a key witness. So much so that she was sentenced for perjury by Supreme Court [37] .
Suggestion : A debate that emerged after this case was that the statements made to police shall be made admissible in the court of law. Since it could be then taken as substantive evidence, it would deter witnesses to retract their statements made to investigating agencies. This concept has already been applied by legislature in certain circumstances. For e.g., under Sec. 15 of TADA(Terrorist and Disruptive Activities(Prevention) Act, 1987), statements made to police officers of certain rank were admissible in trial courts. Similar provision was incorporated in Sec. 32, Prevention of Terrorism Act, 2002.
Malimath Committee has suggested for recording of witness's statement in question-answer form, which will be duly signed by them and would be treated at par with any previous statements for the purpose of corroborating or contradicting such witnesses [38] .
Conclusion
The purpose of Sec. 164, CrPC is to keep witnesses from retracting their statements. It also helps as a safeguard against oppression by Police, as it provides for a judicial authority rather than executive such as Police Officers for recording of statements. Magistrates, however, should record the statements with due diligence as non-observance of procedural aspects of the law leads to serious impediments in delivering justice, as has been noted in many cases analysed above. Statements, though are not admissible as substantive evidence in court of law, they go a long way in collection of evidence and prosecution of accused.
At present, however, many witnesses retract from their statements recorded under Sec. 164 or turn hostile. This especially happen in cases of heinous crimes involving high profile members of the society. Such witnesses fall under a special category of victims and should be provided protection by law. The researcher is of the opinion that one possible solution is a refurbishing of procedural and evidence laws in the country as mentioned earlier. Also, a witness protection cell can be constituted by states to provide assistance to witnesses during all stages of trial.
