Supreme Court: How to appreciate evidence of witnesses who depose that their statement U/S 164 of CRPC was obtained by investigating officer by threat?

The jurisprudence concerning a statement Under Section 164 Code of Criminal Procedure is fairly clear. Such a statement is not considered as a substantive piece of evidence, as substantive oral evidence is one which is deposed before the Court and is subjected to cross- examination. However, Section 157 of Indian Evidence Act, 18723 makes it clear that a statement Under Section 164 Code of Criminal Procedure could be used for both corroboration and contradiction. It could be used to corroborate the testimonies of other witnesses. In R. Shaji v. State of Kerala   MANU/SC/0087/2013 : 2013:INSC:72, this Court discussed the two-fold objective of a statement Under Section 164 Code of Criminal Procedure as:

15. So far as the statement of witnesses recorded Under Section 164 is concerned, the object is two fold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement, and secondly, to tide over immunity from prosecution by the witness Under Section 164. A proposition to the effect that if a statement of a witness is recorded Under Section 164, his evidence in Court should be discarded, is not at all warranted...

The Court also recognized that the need for recording the statement of a witness Under Section 164 Code of Criminal Procedure arises when the witness appears to be connected to the Accused and is prone to changing his version at a later stage due to influence. The relevant para reads thus:

16.... During the investigation, the Police Officer may sometimes feel that it is expedient to record the statement of a witness Under Section 164 Code of Criminal Procedure. This usually happens when the witnesses to a crime are clearly connected to the Accused, or where the Accused is very influential, owing to which the witnesses may be influenced... {Para 27}

28. Considering the conceptual requirement of recording a statement before a Judicial Magistrate during the course of investigation and the utility thereof, as prescribed in Section 157 of Evidence Act, it could be observed that a statement Under Section 164, although not a substantive piece of evidence, not only meets the test of relevancy but could also be used for the purposes of contradiction and corroboration. A statement recorded Under Section 164 Code of Criminal Procedure serves a special purpose in a criminal investigation as a greater amount of credibility is attached to it for being recorded by a Judicial Magistrate and not by the Investigating Officer. A statement Under Section 164 Code of Criminal Procedure is not subjected to the constraints attached with a statement Under Section 161 Code of Criminal Procedure and the vigour of Section 162 Code of Criminal Procedure does not apply to a statement Under Section 164 Code of Criminal Procedure. Therefore, it must be considered on a better footing. However, relevancy, admissibility and reliability are distinct concepts in the realm of the law of evidence. Thus, the weight to be attached to such a statement (reliability thereof) is to be determined by the Court on a case-to-case basis and the same would depend to some extent upon whether the witness has remained true to the statement or has resiled from it, but it would not be a conclusive factor. For, even if a witness has retracted from a statement, such retraction could be a result of manipulation and the Court has to examine the circumstances in which the statement was recorded, the reasons stated by the witness for retracting from the statement etc. Ultimately, what counts is whether the Court believes a statement to be true, and the ultimate test of reliability happens during the trial upon a calculated balancing of conflicting versions in light of the other evidence on record.

29. In the present case, the statements of PW-3 and PW-4 were recorded by the Judicial Magistrate on 09.10.2003 i.e. almost 25 days after the incident. Thus, their statements were recorded after the passage of a considerable time and could not be termed as hasty statements as there was sufficient cooling period for the witnesses to think over and contemplate the consequences of their statements. During this entire period, both PW-3 and PW-4 remained with their family and it is not their case that they were kept under influence or were tutored during this period. Pertinently, PW-1 has also deposed that on certain occasions, PW-3 had accompanied the deceased Devaki to her maternal home, which indicates that PW-3 had a sense of attachment with the deceased and the same could have been the reason for giving a statement against her own brother and mother. In fact, the retraction of these statements by PW-3 and PW-4 before the Court appears to be a result of tutoring and manipulation as the said witnesses could have easily been won over by their family members during the intervening period. Furthermore, the witnesses have admitted that the statements were signed by them and there is no suggestion to the effect that the witnesses could not have understood the statements. The statements have been certified by the concerned Magistrate to the effect that they have been read by the witnesses and their consequences have been explained to the witnesses.

30. PW-3 and PW-4 have deposed that they were under threat from the concerned Investigating Officer who was present along with them before the Magistrate. The concerned Investigating Officer has been examined as PW-8 in the present case and during his examination, there is not even a suggestion from the Appellants to the effect that he was present along with PW-3 and PW-4 at the time of recording their statement Under Section 164 or to the effect that he had threatened them to give incriminating statements against the Appellants. Furthermore, the concerned Magistrate could have been examined as a witness in the present matter to clear the controversy on this aspect and for unexplained reasons, he was never called for examination especially when a completely hostile version was being provided by the witnesses qua the proceedings which were conducted before him. The Appellants failed to place any material on record to justify the allegation of threat and as discussed above, the statements of PW-3 and PW-4 recorded Under Section 164 Code of Criminal Procedure reflected the correct version of the events that transpired on the fateful day.

31. Having said so, we deem it fit to observe that a statement Under Section 164 Code of Criminal Procedure cannot be discarded at the drop of a hat and on a mere statement of the witness that it was not recorded correctly. For, a judicial satisfaction of the Magistrate, to the effect that the statement being recorded is the correct version of the facts stated by the witness, forms part of every such statement and a higher burden must be placed upon the witness to retract from the same. To permit retraction by a witness from a signed statement recorded before the Magistrate on flimsy grounds or on mere assertions would effectively negate the difference between a statement recorded by the police officer and that recorded by the Judicial Magistrate. In the present matter, there is no reasonable ground to reject the statements recorded Under Section 164 Code of Criminal Procedure and reliance has correctly been placed upon the said statements by the courts below.

  IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 122 of 2013

Decided On: 25.11.2024

Vijaya Singh and Ors. Vs. State of Uttarakhand

Hon'ble Judges/Coram:

Bela M. Trivedi and S.C. Sharma, JJ.

Author:  S.C. Sharma, J.

Citation:  MANU/SC/1259/2024.

Read full Judgment here: Click here.

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