How to appreciate evidence of a prosecution witness whose statement is not recorded by the police?

  It appears that the learned counsel for the appellant is entertaining an apprehension regarding the prejudice which may likely to be caused to the appellant if the investigating officer has not recorded the statements of the witnesses questioned. In such case, the previous statements of the witnesses will not be available and veracity of the witnesses cannot be tested with reference to their previous statements, is the contention. If that be so, the witnesses examined under Section 311 Cr.P.C and the witnesses examined as defence witnesses also suffer the very same infirmity. Law never envisages such an eventuality. The court has to appreciate the evidence of witnesses by taking it as a whole and conclude whether the evidence rendered by the witness is trustworthy or not. {Para 17}

18. The upshot of the above discussion is that under Section 161(3) Cr.P.C it is not obligatory on the police officer to record the statement of all the witnesses examined by him during the course of investigation. But if he exercises his discretion of reducing the statements into writing and the prosecution purposes to examine that witness in court, the accused it entitled to get the copy of the statement and prosecution is bound to furnish it to the accused. The failure to comply with the requirements of section 161(3) may affect the credibility to be attached to the evidence of the witnesses. But it does not render the evidence as inadmissible and it will not destroy the fabric of the prosecution case. The legitimate object of the prosecution is not to secure a conviction, but to see that justice is done in a proper manner. Doubtless, the probative value of the evidence tendered by such witnesses is left open, which could be challenged by the appellant at the  appropriate time and before the appropriate forum in accordance with law.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

      P.A SHADULY @ HARIS Vs   STATE

  Coram:
          MR.JUSTICE C.K.ABDUL REHIM
                                           
         MRS. JUSTICE SHIRCY V.
 Dated: 11TH DAY OF APRIL 2017
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