Evidentiary Value Of FIR, Statements Made to the Police and the Magistrates

Evidentiary Value Of FIR, Statements Made to the Police and the Magistrates | Overview

• Setting the Frame
• Evidentiary Value of FIR
• What is FIR?
• Why is FIR needed?
• Who can give FIR?
• What is the Evidentiary Value of FIR?
• Evidentiary Value of Statements made to Police
• What is Police Statement?
• Why is the Statement Needed?
• What is the evidentiary value of such statements?
• Evidentiary Value of Statements made to Magistrates
• What is a Confession?
• Inculpatory and Exculpatory Confession
• Evidentiary Value of Section 164 Statement

Setting the Frame

The article discusses the Evidentiary Value Of FIR, Statements Made to Police and Statements Made to Magistrates. Before proceeding with anything relevant, it is essential to understand the procedure of investigation under the Criminal Procedure Code, 1973. Under Section 157, when a police officer receives any FIR that relates to the commission of an offence within the area of that police station, the police shall proceed to the crime scene, take statements from the people who saw the incident, who are related to the victim or who live nearby.

The police, after the first day’s investigation, sends the report to the magistrate who is also empowered to record the statements of those people whom the police interrogated. Now, here we see three statements in the picture. The FIR, statements made to police and statements made to the Magistrate. The question is can these statements be used in the court as evidence of what actually happened.

This article endeavours to answer this question and look into the evidentiary value of the FIR, statements made to police and to Magistrates under the Code of Criminal Procedure, 1973

Evidentiary Value of FIR

• What is FIR?

The information given by any person to the police of an offence which the police is empowered to investigate under the Code (Cognizable Offence), is called ‘first information’. Under Section 154, this information must be reduced to writing and the police officer must make a note of the receipt of this information in a diary maintained by him every day. This written information is called the “First Information Report” (FIR).

• Why is FIR needed?

For common understanding, it is believed that FIR is recorded to set the criminal law into motion. Precisely, the police cannot investigate unless any information of criminal act or conduct is received by it. As soon as the police receive the information, the process of arrest, search and trial start. Thus, it is said that FIR is needed to set the criminal law into motion.

However, in State of Maharashtra v. Ahmed Shaikh Babajan, the apex court observed that “FIR is not a condition precedent to the setting of criminal law into motion”[1]. It means that the police can take action even before the FIR is recorded, for e.g., if the police witnesses an offence or when the information is given on the road to a circle inspector instead of a police station. Another essential purpose of FIR is to record the information of the offence and the accused before the memory of the informant fails or before s/he gets time to fabricate or embellish the information.

• Who can give FIR?

FIR can be given by any person who has been a victim of the offence or one of the victims of the offence. Further, it can be given by any person who witnessed the commission of an offence by eyes or ears or who has knowledge or suspicion of commission of any offence.

• What is the Evidentiary Value of FIR?

In a nutshell, it can be said that FIR is not a substantive piece of evidence and cannot be relied on by the prosecuting agency for conviction of the accused. FIR is not recorded on oath and is a mere statement made to the police without any swearing. Further, its veracity is not tested by cross-examination.

The evidentiary value of FIR was discussed in detail in Dharma Rama Bhagare v. The State of Maharashtra.[2] The observations of the court can be summarised as follows:

1. FIR cannot be admissible as evidence before a court of law in a trial.
2. It can be used only to discredit the maker of the FIR by contradicting him.
3. It can be used for corroborating any statement made by the maker of the FIR in a court during the trial.

FIR can be given by the accused himself. An FIR given by the accused can be either in nature of a confessional statement and non-confessional statement.

For instance, (i) ‘A’ is accused of the murder of ‘B’. He goes to the police and informs that he murdered ‘B’ by stabbing him and throwing his body into the river. (ii) ‘A’ murders ‘B’ and apprehends that he will be caught. To keep himself out of suspicion, ‘A’ informs the police that he saw an unknown person killing ‘B’.

The first instance is where the FIR given by accused ‘A’ is confessional in nature and the second one is non-confessional. If a statement is confessional in nature, it cannot be used in the court as evidence under Section 25 of the Indian Evidence Act, 1872. The landmark case for considering the evidentiary value of FIR given by an accused is Aghnoo Nagesia v. the State of Bihar.[3] The court, in this case, held that:

1. FIR given by accused is categorically inadmissible as evidence.
2. If the FIR given by the accused is non-confessional in nature, it can still be admitted by the maker of the FIR in the court. However, unless specifically admitted, the FIR of the accused cannot be used against him.
3. If it is confessional in nature and will expose the accused to criminal charges, it will become inadmissible except as provided under Section 27 of the Evidence Act. Section 27 allows the confessional statement of the accused to be used for further investigation for discovery if new and relevant facts and if any fact is discovered, it can be used in court.
4. If an FIR is partly confessional and partly non-confessional, it is entirely inadmissible in court. However, if the no-confessional part is absolutely exclusive of the confessional part, it can be a relevant fact under Section 18 of the Evidence Act and if admitted by the maker under Section 21, can be admissible as evidence.

In certain circumstances, the FIR itself becomes a substantive piece of evidence. Under Section 32 of the Evidence Act, if the person making the FIR is dead or cannot be found or if his attendance cannot be procured without unnecessary delay in the trial, the FIR becomes a substantial piece of evidence. If the FIR mentions the details of the accused, it can be used to convict him though it cannot be the sole reason to convict him. Moreover, if the FIR is a part of a transaction which is admissible in court, the FIR becomes admissible.

Evidentiary Value of Statements made to Police

• What is Police Statement?

Section 161 of the Code titled “Examination of Witness by Police” empowers the police officers to record any statement of any person who is acquainted with the facts of the case. The examination means oral examination and refers to such statements and these statements are specifically recorded by those officers who are investigating the case.

• Why is the Statement Needed?

The purpose of the Statement is to provide evidence and lead the investigation finally reaching to a conclusion. When an offence is committed, many people may have witnessed the crime, many people know why it might have been committed and many people may know where the offender is. The statements of all these people are necessary to know the intention and motive behind the crime and the recovering of the accused.

• What is the evidentiary value of such statements?

Precisely, any statement made to a police officer is never admissible in court as evidence. It is not hidden that the condition of the police in the country is not very good and oftentimes, maximum statements are given after 1^st degree or 2nd-degree torture. In such circumstances, people tend to nod to whatever the police ask them to do to avoid pain. Thus, making such statements admissible will defeat the purpose of criminal law, i.e. justice. Hence, such statements are inadmissible in court as evidence.

Section 162 of the Code provides that any statement recorded by the police under Section 161 shall not be signed by the maker of the statement and it shall not be admissible as evidence before the court during any trial. The law specifically requires that the statements should not be signed so that it cannot be proved that it was given by that specific person.

The law requires that whatever a person has to state, it must be stated before the court and during the trial. Thus, the purpose of Section 161 Statement is not to establish witnesses against the accused but to assist the police in the investigation.

In Baleshwar Rai v. State of Bihar[4], the court held that to apply the provisions of Section 162, the Statement must be made “during the investigation” and not “during the period of investigation”. For instance, A was murdered by B and police while investigating asked A’s friend C if A had any enemies who can kill him.

The statement made by C to the police is under Section 161 and cannot be proved in court. On the contrary, imagine A was murdered by B and the police are investigating the case. During the period of investigation, the police received a letter written by A’s close friend C that he saw B killing A but he is scared to come out. This statement, though made to police is not during an investigation but during the period of investigation. It can be proved in court.

Now, it has been settled that statements made under Section 161 Cr.P.C are inadmissible as evidence in court. However, the proviso to section 162 (1) states that if a witness is brought from the side of Prosecution (i.e. victim or State) before the court to testify, s/he can be contradicted[5] using such statements provided s/he is shown the statement[6]. Moreover, if there is a statement of a defence witness recorded by police in its day to day diary, it can also be used to contradict the defence witness under Section 145 and 161 of the Indian Evidence Act, 1872.

Evidentiary Value of Statements made to Magistrates

Section 164 of the Code empowers the Judicial Magistrate or Metropolitan Magistrate to record the statements of any witness or accused whether confessional or non-confessional. First of all, it is a common misunderstanding that Section 164 provides for recording of confession of the accused. Nevertheless, the provision accredits the Magistrate to record both confessional and non-confessional statements of the accused and also the Statements of the witnesses if it is required to be made before the Magistrate.

• What is a Confession?

The classic case to define confession is Pakala Narayan Swami v. Emperor. In this case, His Lordship (as he was then) Lord Atkins spoke for the Privy Council and observed that “A confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence.

An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not in itself a confession, for example, an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused death with no explanation of any other man’s possession” [7]. The case is still relied upon by the Indian courts to determine whether a statement amounts to a confession or not.

• Inculpatory and Exculpatory Confession

The statement of the accused where the accused person directly admits his guilt is known as an inculpatory confession. Exculpatory confession, on the contrary, is that confession which absolves the accused from his liability. For instance, where the accused accepts being part of the offence but claims that it was committed completely by the co-accused, it is exculpatory.

• Evidentiary Value of Section 164 Statement

A statement recorded by the Judicial or Metropolitan Magistrate according to the procedure laid down in Section 164 is admissible in the court as evidence and can also form the sole basis for conviction. In Parmananda v. State of Assam[8], the court held that endeavour of the court should be to apply its mind to the question whether the accused was free from threat, duress or inducement at the time of making the confession. If the statement was made voluntarily, there is no bar against its admission.

A statement is not necessary to be made to any other person to be called a confession. In Sahoo v. State of UP[9], the accused who was charged with the murder of his daughter in law with whom he was always quarrelling was seen on the day of murder going out of the home, saying words to the effect “I have finished her and with her the daily quarrels”. The statement was held to be a confession relevant in evidence, for “it is not necessary for the relevancy of a confession that it should be communicated to some other person”[10].

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[1] State of Maharashtra v. Ahmed Shaikh Babajan, 2009 (1) RCR (Criminal) 224.

[2] Dharma Rama Bhagare vs The State of Maharashtra, AIR 1973 SC 476.

[3] Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119.

[4] Baleshwar Rai v. State of Bihar, [1963] 2 SCR 433.

[5] Raghu Nandan v. State of AP, 1974 Cri. L.J. 453.

[6] §145, Indian Evidence Act, 1872.

[7] Pakala Narayan Swami v. Emperor, AIR 1939 P.C. 47.

[8] Parmananda v. State of Assam, 2004 (2) ALD Cri. 657.

[9] Sahoo v. State of UP, AIR 1966 SC 40.

[10] Ibid.

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