Chapter 38 E: Collection of Oral Evidence, Dying Declaration, and Confessional Statements PDF

CHAPTER - XXXVIII (E) COLLECTION OF ORAL EVIDENCE, DYING DECLARATION AND CONFESSIONAL STATEMENTS 1722. Under Section 161 of the Code of Criminal Procedure, the Investigating Officer is empowered to examine orally any person (including a suspect) who is supposed to be acquainted with t...

CHAPTER - XXXVIII (E) COLLECTION OF ORAL EVIDENCE, DYING DECLARATION AND CONFESSIONAL STATEMENTS 1722. Under Section 161 of the Code of Criminal Procedure, the Investigating Officer is empowered to examine orally any person (including a suspect) who is supposed to be acquainted with the facts and circumstances of the case, and he may reduce into writing the statement of each such person and when he does so, he shall make a separate record of the statement of each such person whose statement he records. The person so questioned shall be bound to answer all questions relating to such a case put to him, other than questions, the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. 1723. If there is sufficient evidence or reasonable ground to justify the sending up of the accused to a magistrate on a Police report, the Station House Officer shall require the complainant, if any, and so many of the persons who appear to such officer to be acquainted with the circumstances of the case as he may think necessary, to execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence, as the case may be, in the matter of the charge against the accused. 1724. In order to examine a witness, the Investigating Officer should, as far as possible contact him at his place, but may, if necessary under section 160 Cr. PC require the attendance before himself on any person being in the limits of his own or adjoining Police Station. In such cases a notice in the following form should be served on the witness, which should be acknowledged. If a person, so called intentionally fails to attend in spite of a notice served on him, he could be prosecuted under section 174 of the Indian Penal Code after complying with section – 195 Cr.P.C. POLICE NOTICE/ORDER TO REQUIRE THE ATTENDANCE OF A PERSON U/S 160 OR 175 Cr. P.C. Thiru. (name) ……………….. …………s/o ………………………….. ……….residing at …………………………………………………………………. Whereas the presence of the aforesaid person is necessary for the purpose of investigation/Inquiry into the offence reported to have been committed in Cr.No. ……….. under section ……………… of Police Station ………………………; Therefore the said person is hereby directed to appear before the Investigating Officer at …………………..(place) on …………….(date) at ……………(time), as the said person appears to be acquainted with the facts and circumstances of the said case.  If the said person fails to attend the inquiry at the above place, it amounts to an offence under section 174 IPC. INVESTIGATING OFFICER (NAME OF PS) 1725. Under no circumstances, an Investigating Officer should require any person under the age of 15 years or a woman, to attend at any place other than the place in which such person or woman resides (provision to Section 160 of the Cr.P.C). 1726. When an employer of the department of essential services including the Railway administration is required under section 160 Cr.PC, Prior notice shall be given to the official concerned in order that he may take steps to replace him without affecting the object of the investigation. PERMISSION TO POLICE OFFICERS TO ENTER JAILS FOR INTERROGATION ETC. 1727. The Superintendent of Police in charge of the Sub-division may address the chief Superintendent of Jails, Puducherry to permit the Investigating Officer of a particular case to interrogate such prisoners in the presence but not within the hearing of the Jailor or some other prison officer approved by him. 1728. Police Officers of lower rank than that of an Inspector who are in uniform and who have been detailed for the duty shall be permitted to enter the jail for the purpose of recognizing old offenders or for making arrangements for the identification of prisoners during working hours on any week day. The Superintendent or Jailor shall take great care to see that prisoners required for identification are paraded with a number of other prisoners similarly clad. RECORDING OF STATEMENTS OF WITNESSES 1729. Under sub-section (3) of Section 161 Cr.P.C., it is only the Police Officer making an investigation under Chapter XII of the code or a Police Officer not below such rank as the State Government may by general or special order prescribe, who is competent to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to reduce under sub-section (3) of the section, into writing, his statement. 1730. When it is necessary to examine any person and record his statement during an investigation, the Police Officer making an investigation should himself do so invariably. But, in cases where it is impracticable, the Head constable or the writer attached to the Police Station may record the statements of witnesses. In that case both the recording officer and the investigating officer should sign the statement recorded u/s 161 (3) Cr.P.C. 1731. It is desirable to reduce into writing the statements of all witnesses who are acquainted with the facts and circumstances of the case and who may have to be cited in the court as witnesses. The statement of each witness should be recorded separately. Statements recorded by Police Officers under Section 161(3) Cr.P.C. should not be in the indirect form of speech. The language of section 162 Cr.P.C and Section 145 of Evidence Act clearly indicates that the writing should be describable as a statement of the witness himself and further that it should be as nearly as possible, a complete record of what he has said. The writing should, therefore be a record in the first person of the whole of the account he gives. While it would not be proper that the Investigating Officer should be saddled with the responsibility of noting down every statement made to him during the course of the investigation, it would not be equally proper that he should fail to take down the statements of persons who are likely to be examined as principal witnesses for the prosecution. According to sub-section (7) of Section 173 Cr.P.C. there is a statutory obligation cast on the prosecution to furnish to the accused copies of statements recorded under sub-section (3) of Section 161, Cr.P.C. of all persons whom the prosecution proposes to examine as its witnesses, before the commencement of the inquiry. So, sub-section (3) of Section 161 Cr.P.C. read together with sub-section (3) of 173, Cr.P.C. clearly indicates that separate statements of all persons whom the prosecution proposes to examine as its witnesses should be recorded and copies thereof must be furnished to the accused before the commencement of the inquiry. It shall also be remembered that Police reports and other documents are supplied to the accused, as per Section 207 Cr.P.C. These provisions should be strictly complied with. 1732. The case diary is intended for recording such particulars as what the Investigating Officer did, the places he visited, the people he met and the things he saw. The detailed statements of witnesses examined need not find a place in it. It is a privileged document and is covered by sub- section (2) of Section 172, Cr.P.C. But statements of witnesses if recorded in the case diary are covered by Section 161 and 162, Cr.P.C. and the privilege assigned to the case diary does not extend to the statements of the witnesses recorded therein. Only the gists of the statements of witnesses recorded u/s 161 (3) Cr.P.C need be mentioned in the case diary. The case diaries should be written in the Form 16-A. QUESTIONING OF ACCUSED PERSONS 1733. When an Investigating Officer considers that the case against an accused person has been proved, he should, before arresting him, always give him an opportunity to explain the facts in evidence against him. It is then open to the Investigating Officer to put him such questions as he considers necessary for the purpose of enabling him to explain or elucidate any circumstances that may have been ascertained in the course of the investigation. This is particularly necessary in lengthy or complicated cases so that details may not be forgotten or overlooked in the course of enquires for their verification. The replies may sometimes disclose the line of defence of the accused person and may also at times indicate sources from which independent evidence may be available. If the accused person continues to make reference to his defence, further questions may be put to bring out the fact. But the leading questions should not be asked. 1734. Immediately after the arrest, when the accused person makes a voluntary statement, the Investigating Officer should listen to him. Of course, such statements of the accused shall be subjected for confirmation and contradiction. The practice of resorting to persuasion, trickery or oppression to induce an accused person to confess or make any statement is prohibited. DYING DECLARATION 1735. The statement made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that persons death comes into question, is admissible in evidence under Clause (1) of Section 32 of the Indian Evidence Act. Such statement is relevant whether the person who made it was or was not, at the time when it was made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. 1736. The dying declaration recorded by the Judicial Magistrate is looked with favour. Hence, a Police Officer may get the dying declaration recorded by the Judicial Magistrate. 1737. Such person shall, if possible, be examined by a Medical Officer, with a view to ascertaining that he is in a sufficiently fit condition to make his statement. Where for any reason, the presence of a Medical Officer cannot be procured without delay, the Magistrate or the Officer recording the dying declaration should satisfy himself that the declarant is in a sufficiently fit condition to make a statement and record the fact. 1738. If no Magistrate can be secured, such statement shall be recorded by the Investigating Officer in the presence of two or more witnesses. 1739. If no such witnesses can be obtained without risk of such person’s death before his statement can be recorded, it shall be recorded by the Investigating Officer in the presence of one or more Police Officer and in the presence of the staff of the Health Department/Hospital. 1740. The declaration may be recorded by any person. Even if the declaration is made to a Police Officer, it is admissible in evidence and its use is not barred by Section 162, Cr.P.C. Even if it has been made orally in the presence of any person, it may be proved in court by the oral evidence of that person. The declaration becomes admissible, if the declarant subsequently dies. If he survives, it will be useful, if made before a Magistrate, or any one other than a Police Officer, to corroborate his oral evidence as a witness in court. If it was made before a Police Officer, it will be treated as a statement under Section 162, Cr.P.C. 1741. The declaration must, as far as possible, be complete by itself. The person making the declaration must be speaking from personal knowledge of the facts. If reduced to writing by the police, the declaration should, as far as possible, be in the form of questions and answers and in the very words of the declarant. The signature of the declarant should invariably be taken on the dying declaration. But, if the declarant is an illiterate or is incapacitated from signing for any reason, such as his hand being maimed, his thumb impression should be taken. A note should be made in the dying declaration giving reasons why the signature of the declarant was not taken. 1742. When the declarant, being in a serious condition and unable to speak makes signs by hand or head, the person recording the dying declaration must record the precise nature of the signs which the declarant made. 1743. When the dying declaration is recorded by a person other than a Magistrate, it should be forwarded forthwith after retaining a copy, to the court having jurisdiction to inquire into or try the case under investigation. If the dying declaration is recorded by a Magistrate, a copy there of should be obtained for purposed of further investigation. 1744. Incomplete dying declarations are not by themselves inadmissible in law. Though a dying declaration is incomplete by reason of the deceased not being able to answer further questions in his then condition, yet the statement, so far as it goes to implicate the accused, could be relied upon by the prosecution, provided it is quite categoric in character and complete by itself so far as the implication of the accused is concerned. If there is corroboration for the dying declaration, it is so much the better, as the incomplete dying declaration would then be invested with the stamp of truth. MEDICAL OFFICER-IN-CHARGE OF INJURED PERSON TO GIVE IMMEDIATE NOTICE TO POLICE AND MAGISTRATE WHEN IN DANGER 1745. Whenever any person injured by violence is taken by the police to a hospital or dispensary, the Police Officer taking him will draw the attention of the Medical Officer to the fact that the evidence of the injured person will be required, so that in case his life is in danger, the Medical Officer may immediately give notice to the Police and the nearest Magistrate. 1746. No Police Officer shall require any Medical Officer to leave his duties in order to attend upon a wounded person, unless in cases in which the latter can not, without imminent danger to life, be conveyed to a hospital or dispensary. INVESTIGATING OFFICER TO MOVE THE MAGISTRATE TO RECORD THE STATEMENT OF AN INJURED ACCUSED PERSON 1747. If an accused person is wounded and can not be removed without risk to his life the Police Officer making the investigation shall report the fact to the magistrate having jurisdiction (through the Superintendent, if such Magistrate is in Headquarters) and invite him to come to the place where such person is and record his statement. MEDICAL EXAMINATION OF WOMAN IN CASE OF MISCARRIAGE 1748. In cases in which a woman accused of having caused herself to miscarry, of having concealed a birth by disposal of the dead body of the child, or of having murdered here infant in order to conceal the facts of its birth, denies the offences and a medical examination of the person appears desirable in order to test the truth of her denial, the police must, on no account, send her to the Medical Officer, to be examined unless here consent for the examination and the order of a Magistrate are formally obtained. The consent must be recorded in writing in the presence of witnesses and embodied in a report to be sent to the Magistrate having jurisdiction with whom the responsibility for sending the woman for examination rests. RECORDING OF STATEMENTS OF WITNESSES AND CONFESSIONS OF ACCUSED PERSONS BEFORE A MAGISTRATE 1749. Under Section 164 Cr.PC. any Metropolitan Magistrate or Judicial Magistrate is competent to record confessions made to them in the course of an investigation under Chapter XII Cr.PC. or any at time afterwards but before the commencement of the enquiry or trial. 1750. In important cases, witnesses may be produced before a Magistrate empowered to record the statement under Section 164 Cr.PC and their statements got recorded by the Magistrate on oath before the commencement of the inquiry or trial. Such statements cannot be used as evidence by themselves, as they have been made behind the back of the accused. If the witnesses were to resile subsequently in court during the inquiry or trial from their earlier statements made on oath, they can be charged under Section 193 IPC. 1751. If an accused person, on being arrested, expressed his willingness to make a confession, his confession should be promptly got recorded by a Magistrate empowered to record statements under Section 164 Cr.PC. It is essential that the Magistrate is not the one who will eventually try the case or hold committal proceedings. The confession shall be recorded in open court and during the court hours, save for exceptional reasons. The following instructions have been laid down by various High Courts for recording confession statement.: (1). When an accused person is produced before a Magistrate for recording a confession statement, the Magistrate shall explain to him that he is before a Magistrate, that he is under no obligation at all to answer any question, that he is free to make a statement or refrain from making any as he pleases, that it is not intended to take him as an approver and that anything said by him will be taken down and thereafter used against him. (2). A Magistrate may put such questions as he considers necessary to assure himself that the accused is making the statement voluntarily. (3). Further, the Magistrate shall put the following questions (a) When were you arrested? (b) When the police first questioned you? (c) How often did they question you? (d) Were you detained anywhere before you were taken to custody? If so, when and where? (e) Where you induced to make a confession statement and are you making the statement as a result of any ill-treatment? (The Magistrate shall examine the body of the accused, if feasible) 1752. The questions put by the Magistrate as well as the answers given by the accused shall be reduced to writing. (4). If the accused person, after being so questioned, still expresses a desire to make a statement, the Magistrate shall give him reasonable time for reflection, which shall ordinarily be not less than 24 hours. During this period he shall be kept in judicial custody. (5). When the accused person is produced before the Magistrate after the expiry of the period so granted, he shall again warn the accused that he is not bound to make any statement and that any statement made by him will be used against him during the trial of the case. (6). If the accused still desires to make a statement, and the Magistrate is satisfied that he is doing so voluntarily, the Magistrate shall record the statement of the accused. (7). The Magistrate shall record the statement of the accused in the court and during the court hours, save for exceptional reasons to be recorded in writing. (8). The Magistrate shall see that during the questioning of the accused and the recording of his statement, there are no Police Officers either in the court house or in the vicinity. (9). Every question put to the accused and every answer made by him shall be recorded in full. (10). The accused person shall be questioned in the language known to him and the answer given by him shall be recorded in his own words, as far as possible. (11). After recording the statement of the accused, the same shall be read out and explained to hi m in the language known to him and the fact of having read the statement to the accused and the accused having admitted its correctness shall be recorded. (12). Thereafter, the Magistrate shall append a certificate as required by Section 164(3) of code of Criminal Procedure. (13). When a requisition for recording a statement under section 164 Cr.PC is received by a Magistrate having jurisdiction to try the offence or commit the accused for trial, he shall direct the accused to be taken before another Magistrate for that purpose, unless the Magistrate, for reasons to be recorded in writing, deems fit to record the statement himself; and when he so does, he shall transfer the case to any Magistrate subordinate to him or report the case to the District Magistrate/ Sessions Judge, who shall take the case on his own file or transfer it to another Magistrate”. 1753. CONFESSIONAL STATEMENTS MADE TO THE POLICE (1). Confessional statements made to Police Officers are admissible in evidence under Section 27 of the Indian Evidence Act, provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of information whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved. (2) The discovery of a fact includes the object found, the place from which it is produced and the knowledge of the accused person as to its existence. (3) If it appears to the Investigating Officer that any voluntary statement made by an accused person while in custody will lead to the discovery of any fact which can be proved under Section 27 of the Indian Evidence Act, he should record the statement clearly and carefully. The statement should be recorded in the first person, that is to say, in the very words and language of the accused. It must neither be paraphrased nor written in third person. (4) If an accused person is dumb and volunteers information by making signs and gestures from which it can be made out what he has been stating, a clear record of what is conveyed by such signs and gestures should be made. (5) It is not necessary that witnesses should be secured for attesting the record of the information. Such practice has been deprecated. (6) If, however, witnesses, by chance, happen to be present at the time an accused person volunteers information, it is not illegal to have the record of the information attested by them. The accidental presence of the witness should be clearly explained in the case diary. (7) When a discovery is made as the result of the statement of the accused a separate seizure memo should be drawn up for the discovery of the material fact (in Form I-F-4). It is the information given by an accused person that determines his mens-rea and that has a direct bearing on his guilt. (8) When one of the several accused persons who have taken part in an act, for example the burial of property at a certain place, offers to point out the place and the property is found in consequence, his confessional statement is relevant against him under Section 27 of the Indian Evidence Act. But if other accused persons suspected to have taken part in burying the property at the place subsequently point out the same place separately and in the absence of one another these confessional statements cannot be said to have led to the discovery of the property which has already been discovered and are not, therefore, relevant under that section. There is, however, nothing objectionable in the Investigating Officer trying to see for his moral satisfaction whether such persons point out the same place as the one previously shown by one of them. 1754. SEIZURE MAHAZAR (PROPERTY SEIZURE MEMO) FOR RECOVERY OF STOLEN PROPERTY OTHERWISE THAN ON HOUSE SEARCH-RECORD OR MATERIAL FACTS (1) When property is recovered by a Police Officer other than on a formal search a contemporaneous record of the facts relating to such recovery may be prepared in duplicate by him in Form No.IF.4 and may be attested by witnesses present at the time of such recovery. The record so made is admissible in evidence to corroborate the testimony of the Police Officer who prepared it or may be used to refresh his memory. The signatures of the attesting witnesses may be used in evidence only to corroborate the statement of the Police Officer that they were present at the time of the recovery and attested the record prepared by him. Statements which read as statements of persons other than the Police Officer who prepares the record and the accused should not be entered therein. The record should reach the Magistrate with the least possible delay. (2). Persons, who attested the Seizure Memo prepared for such recoveries, should invariably be examined as witnesses in court. Their statement should be recorded under section 161(3) Cr.P.C. 1755. PROPERTY SEIZURE MEMO (1) The occasions on which documents which are popularly styled as the Observation Memo (Crime details Form IF 2) and the seizure memo (IF 4) required by law to be drawn up are when (i) the scene of crime is observed and explained and (ii) the case properties, objects and other incriminating materials are seized after a search conducted under section 100 (5) Cr.P.C. or in pursuance of the confession statement of the accused. It is merely a memorandum of what has been observed by the witnesses and the Investigating Officer, who are not to forget many of the details observed by them, in the interval between the events themselves and the day on which they are called on to testify to them in court. Hence, a memo is useful only as a piece of corroboration of the oral evidence of the witnesses, the Investigating Officer (Section 157, Evidence Act) or as a memorandum of facts observed by them, which they may use to refresh their memory while giving evidence of those facts (Section 159, Evidence Act). For the latter purpose, it is essential that the person using the memo must either have written it himself immediately after having observed certain facts or must have personally read it soon after it was written up by some one else, and found it to be correct. (2) In view of the above legal position of Observation memo the witnesses to be selected, should be respectable and disinterested. (3) The witnesses should be present from the beginning to the end of the transaction. (4) The Crime details Form should begin with a mention of the full names, age, occupation and address of the witnesses followed by a preamble explaining the purpose, for which the observation is being done. It should contain full and accurate statements of the articles or other relevant circumstances found and the exact spots at which they were found. It should state clearly what articles, if any, were seized and from where they were seized. After it has been written up, it should be read over by or to the panchayatdars and they should be asked to sign it after they have admitted it to be a true account of what they observed. The name of the writer should be mentioned and his signature taken. The time when it was commenced and completed, the date and the place should also be mentioned in it. (5) The observation mahazar (Crime details Form) should be written up immediately at the place where the proceeding is held. (6) It should be held ordinarily during day time, but if the circumstances demand it, it may be held even during night time. (7) The observation should be written up carefully, so as to avoid the need for insertions or erasures. All erasures or insertions, if inevitable, should be initialed by the witnesses. 1756. TENDERING OF PARDON (APPROVER) (1) In cases where it is otherwise impossible to establish the guilt of the accused from other evidence, conditional pardon can be tendered to an accomplice in a crime with a view to securing the evidence of such a person and bringing home the guilt to the other accused. (2) In the case of any offence triable exclusively by the Court of Sessions or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 or any offence punishable with imprisonment which may extend to seven years the Chief Judicial Magistrate at any stage of investigation or inquiry into or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as Principal or abettor, in the commission thereof. ACCOMPLICE 1757. The uncorroborated testimony of an accomplice is strictly admissible and a conviction based on it is not illegal. But the rule of prudence, which is now recognized as a rule of law, is that evidence of accomplice, before it is utilized for convicting an accused person, must be corroborated in material particulars in so far as it involves the accused. But such independent corroboration need not cover the whole of the prosecution story or even all the material particulars. It would be sufficient if them is substantial corroboration to afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true. 1758. The Investigation Officer, whenever he finds it necessary to make an accused person an approver should obtain the permission of the Superintendent. More than one accused person may be made approver in a case if it is necessary and advisable to do so in that particular case. After a person has accepted pardon, arrangement should be made to keep him in a separate cell and to protect him. An under trial prisoner who has been admitted as an approver by a court should be kept separate at all times from the other prisoners in the same case and all communication between them must be prevented.