Whether investigating officer can seek Production warrant U/S 267 of CRPC for recording statement of a witness during investigation?

 Section 267(1) of the Cr.P.C under which the appellant had moved an application before the trial Court reads as under: 

“267. Power to require attendance of prisoners. (1) Whenever, in the course of an inquiry, trial or other proceeding under this Code, it appears to a Criminal Court,- (a) that a person confined or detained in a prison should be brought before the Court for answering to a charge of an offence, or for the purpose of any proceedings against him, or (b) that it is necessary for the ends of justice to examine such person as a witness, the Court may make an order requiring the officer in charge of the prison to produce such person before the Court for answering to the charge or for the purpose of such proceeding or, as the case may be, for giving evidence. (2)…………………………………………………………………..

(3)………………………………………………………………….

30 Form a plain reading of Section 267(1), it clearly transpires that a Criminal Court, in the course of an enquiry, trial or other proceedings under the Code of Criminal Procedure, can direct a person confined or detained in a prison to be produced before the Court for answering to a charge of an offence or for the purpose of any proceedings against him. The criminal Court is further empowered to direct the officer in-charge of the prison to produce any person who is required to be examined as a witness for the purpose of giving evidence.

 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

CrlA(D) No. 46/2022 ,CrlM No. 1474/2022

National Investigation Agency Through Its Chief Investigating Officer, Jammu Vs Mr. Vishal Sharma, DSGI.

CORAM:

HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

HON’BLE MR. JUSTICE MOHAN LAL, JUDGE

Author: Sanjeev Kumar, J.

Pronounced on 13..12.2022.

Read full Judgment here: Click here

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Why statement of witness is recorded U/S 164 of CRPC?

Object for recording statements of a witness under section 164 of the code is three-fold:

1. To deter witness from changing their versions subsequently: and
2. To get over the immunity from the prosecution in regard to information given by the witness under section 162 of the code. Another reason for recording statement of witnesses under the section 164 of the code is to minimize the chance of changing the versions by the witness at the unit under the fear of being involved in perjury.
3. To obtain authentic version of statement of witness at early stage as it is recorded before Magistrate which has more authenticity than statement recorded before police.

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Whether a person can be contradicted by his statement in dairy kept by him?

 Again, section 39 shows that a statement may be contained in a document which forms part of a book. In this case also there is no question of any communication of that statement to another person in order to make it a statement.

11. Then, there is section 145, which lays down that a witness may be cross-examined as to previous statements made by him in writing or reduced into writing for the purpose of contradicting him. Under this section a witness may be contradicted by statements in a diary kept by him, though there is no question of any communication of those statements to another person.

12. Then comes section 157, which we have already set out above. Here also the words used are 'Statement made by'. We see no reason why the word 'statement' should not have been used in its primary meaning in this section also. There is nothing in the section which in any way requires that an element of communication to another person should be imported into the meaning of the word 'statement' used therein. It was urged that if we do not imply communication to another person in the meaning of the word 'statement' in this section, it would result in a witness corroborating himself by producing some writing made by him and kept secret and that this would be very dangerous. Now, a distinction must be made between admissibility of such a writing and the value to be attached to it. Section 157 makes previous statements even of this type admissible; but what value should be attached to a corroboration of this nature is a different matter to be decided by the court in the circumstances of each case. The witness who is sought to be corroborated is produced in the witness-box and is liable to cross-examination. The cross-examiner may show that no reliance should be placed on such an earlier statement. The danger, therefore, which the learned counsel for the appellant emphasised is really no danger at all for the witness is subject to cross-examination. The main evidence is the statement of the witness in the witness-box and a document of this nature is only used to corroborate him. If the main evidence is shaken by cross-examination, corroboration by such a document would be of no use. There is, therefore, no reason to give a different meaning to the word 'statement' in this section because of this alleged danger, which really does not exist.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 31 of 1958

Decided On: 04.11.1958

Bhogilal Chunilal Pandya Vs.The State of Bombay

Hon'ble Judges/Coram:

K. Subba Rao, K.N. Wanchoo and N.H. Bhagwati, JJ.

Citation:1959CriLJ389 :

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Whether legal necessity can be proved by statement of deceased recorded before tenancy court?

Exhibits 133 and 134 record of tenancy
proceeding which was filed by Laxmibai against husband
of Anjanibai shows that the proceeding was filed for
possession by Laxmibai on the ground that the husband of
Anjanibai was not giving crop share to her. These
documents include evidence of Laxmibai recorded before
the tenancy Court and there is both, the examination-inchief
and the cross-examination of Laxmibai. This record
is considered by the Courts below as Laxmibai is dead and
it is relevant matter under section 32 of the Evidence Act.
This record shows that maximum quantity of six mans
food-grains was given to Laxmibai by the husband of
Anjanibai in one year and in one year only three mans
food-grain was given. The record shows that Laxmibai had
tried to convince the husband of Anjanibai to give more
food-grains as crop share for her survival and that was
done through mediator also. But the husband of Anjanibai
had refused to give her crop share. In the cross
examination of Laxmibai it was suggested to her that

under agreement with husband of Anjanibai, land was
given for cultivation and she had no objection against the
husband of Anjanibai to cultivate the land if he was acting
as per the terms and conditions of lease. It was brought
on the record that Laxmibai had made attempts to give
the suit land to one Mohan for cultivation. Laxmibai had
stated that due to husband of Anjanibai, Mohan had
refused to cultivate the land. Thus, difficulties, which
Laxmibai had faced in cultivating the land and get it
cultivated through others were stated before the authority
by Laxmibai.
27) The aforesaid discussion shows that Laxmibai
had become helpless. The family of the plaintiff was not
taking care of her. She was not in a position to personally
cultivate the land. Further the land was not giving
sufficient income and for survival she was required to take
some steps. Considering the value of the land it was not
possible for her to raise money by mortgaging the land for
her survival. Further there would have been question of
repayment of loan. In view of these circumstances
Laxmibai sold the property to Tatyaba. It is specifically

mentioned in the sale deed that she wanted to repay the
loan and she wanted to use the remaining money, part of
the consideration, for family expenses, for maintenance.
This evidence was certainly sufficient to create probability
that there was legal necessity and there was no other
alternative before Laxmibai than to sell the property. The
effect of the aforesaid circumstances ought to have been
considered by the Courts below in view of the law laid
down in that regard. The aforesaid circumstances are not
separately and cumulatively considered by the Courts
below.
THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No.55 of 1989
 Kisan Ramchandra Kokane

V
 Anjani w/o Laxman Kapase,


 CORAM: T.V. NALAWADE, J.
 DATE : 20th JUNE 2016.
Citation: AIR 2017 (NOC) 64 Bom

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Whether evidence relating to discovery becomes inadmissible if statement made by accused is not recorded?

Mr. Apte, the learned Counsel for the accused thereafter placed his reliance on the decision of the Supreme Court in the case of Niranjan Panja Vs. State of West Bengal reported in MANU/SC/0386/2010 : (2010) 6 SCC 525. Mr. Apte pointed out that in the said decision, it has been stated that for effecting a discovery, a statement has to be recorded on the part of the accused showing his readiness to produce the material object and it is only that part of the statement which is not incriminating and leads to discovery which becomes admissible. In the said case, the recovery was not relied upon because the weapon which was allegedly produced by the accused was never produced before the Court and the prosecution has also not given any explanation whatsoever about the disappearance of this weapon. On carefully going through this decision, we find that again it deals with the aspect as to what part of statement made by the accused is admissible and the ratio in this decision is that only the part of the statement which is not incriminating and leads to discovery becomes admissible. The ratio of this decision does not appear to be that if a statement made by the accused is not recorded, evidence relating to the discovery becomes inadmissible. Mr. Apte also relied upon two judgments delivered by the Supreme Court namely (1) Aher Raja Khima Vs. State of Saurashtra reported in MANU/SC/0040/1955 : AIR 1956 SC 217 and (2) Vijender Vs. State of Delhi reported in MANU/SC/1224/1997 : (1997) 6 SCC 171. The said two decisions also deal with Section 27 of the Indian Evidence Act and the fact of discovery at the instance of accused.

28. It is well settled that the observations in a judgment cannot be de hors the point which is sought to be raised and the facts in which such point is raised. The observations cannot by themselves form the ratio of the decision. The ratio of the decision is to be drawn after considering the facts of the case, the point which is sought to be raised in the matter, the arguments which are canvassed in support of rival contentions in relation to such point, the discussion made by the Court with reference to such point canvassed by the counsel for the parties and the ultimate decision arrived thereupon. On taking into consideration all these aspects, the ratio of the decision has to be gathered. Any sentence in a judgment cannot be read as a statutory provision and the ratio in that regard is well settled by catena of decisions of the Apex Court. This has been clearly explained in different decisions of the Apex court including in the matter of Union of India & Ors. Vs. Dhanwanti Devi & Ors. reported in MANU/SC/1272/1996 : (1996) 6 SCC 44. It has clearly ruled therein that the decision is what it decides and not what follows from it.

29. In the decisions in the case of Prabho (supra) and Niranjan Panja (supra), the question did not arise specifically for consideration as to whether failure to record the information given by the accused would render the evidence relating to discovery by the accused inadmissible. However, this question arose directly for consideration before the Supreme Court in the case of Mohd. Arif alias Ashfaq Vs. State (NCT of Delhi) reported in MANU/SC/0919/2011 : (2011) 13 SCC 621 on which the learned APP has placed reliance. In the said case, the same question as in the present case specifically arose for consideration which can be seen from paragraph 169 of the judgment which reads thus:--

"Now coming to the second argument of failure to record the information, it must be held that it is not always necessary. What is really important is the credibility of the evidence of the investigating agency about getting information/statement regarding the information from the accused. If the evidence of the investigating officer is found to be credible then even in the absence of a recorded statement, the evidence can be accepted and it could be held that it was the accused who provided the information on the basis of which a subsequent discovery was made. The question is that of credibility and not the formality of recording the statement. The essence of the proof of a discovery under Section 27 of the Evidence Act is only that it should be credibly proved that the discovery made was a relevant and material discovery which proceeded in pursuance of the information supplied by the accused in the custody. How the prosecution proved it, is to be judged by the Court but if the Court finds the fact of such information having been given by the accused in custody is credible and acceptable even in the absence of the recorded statement and in pursuance of that information some material discovery has been effected then the aspect of discovery will not suffer from any vice and can be acted upon."

30. In Suresh Chandra Bahri Vs. State of Bihar reported in 1955 Supp (1) SCC 80, no discovery statement was recorded by the investigating officer of the information supplied by the accused to him. Further no public witness was examined by the prosecution to support the theory that such an information was given by the accused to him in pursuance of which some material discovery was made. The Supreme Court, however, in spite of these two alleged defects, accepted the evidence of discovery against the accused on the basis of the evidence of the police officer. In the present case, we find the evidence of police officer PW-15 Bhimrao Waghmare to be wholly credible and reliable. He has not at all been shaken in his cross-examination. In such circumstances, we have no hesitation in relying on his evidence which shows that the spot where the dead body of the victim girl was buried was shown by the accused in presence of PW-8, the panch witness. In our view the decisions cited by the learned Counsel for the accused are of no help to him.

IN THE HIGH COURT OF BOMBAY

Confirmation Case No. 1 of 2015 and Criminal Appeal No. 923 of 2015

Decided On: 14.03.2016

 The State of Maharashtra
Vs.
 Vitthal Tukaram Atugade

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Whether filing of false affidavit, false document and making false statement on oath amounts to contempt of court?

The swearing of false affidavits in judicial proceedings nor only has the tendency of causing obstruction in the due course of judicial proceedings but has also the tendency to impede, obstruct and interfere with the administration of justice. The filing of false affidavits in judicial proceedings in any Court of law exposes the intention of the concerned party in perverting the course of justice. The due process of law cannot be permitted to be slighted not the majesty of law be made a mockery by such acts or conduct on the part of the parties to the litigation or even while appearing as witnesses. Anyone who makes an attempt to impede or undermine or obstruct the free flow of the unsoiled stream of justice by resorting to the filing of false evidence commits criminal contempt of the Court and renders himself liable to be dealt with in accordance with the Act. Filing of false affidavits or making false statement on oath in courts aims at striking a blow at the Rule of Law and no Court can ignore such conduct which has the tendency to shake public confidence in the judicial institutions because the very structure of an ordered life is put at stake. It would be a great public disaster if the fountain of justice is allowed to be poisoned by anyone resorting to filing of false affidavits or giving of false statements and fabricating false evidence in a Court of law. The stream of justice has to be kept clean and pure and anyone soiling its purity must be dealt with sternly so that the message percolates loud and clear that no one can be permitted to undermine the dignity of the Court and interfere with the due course of judicial proceedings or the administration of justice in Chandra Shashi v. Anil Kumar Verma MANU/SC/0558/1995 : 1994ECR636(SC) the respondents produced a false and fabricated certificate to defeat the claim of the respondent for transfer of a case. This action was found to be an act amounting to interfere with the administration of justice. Brother Hansaria, J. speaking for the Bench observed: (At P. 4995, of AIR)

"The stream of administration of justice has to remain unpolluted so that purity of Court's atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are, therefore, required to be well taken care of to maintain the sublimity of Court's environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned. Anyone who takes recourse to fraud deflects the course of judicial proceedings; or if any thing is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be property dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice."

Thus, if any person tries to either file any false affidavit, forged document or even makes false statement on oath, the conduct of such person has a tendency to interfere with the administration of justice or the due course of judicial proceedings. This conduct is having tendency of impeding, obstructing or interference striking a blow on the role of law and no Court can ignore such conduct which has the tendency to shake the confidence of the public and in the judicial institution. It would be in our view a great public disaster if the fountain of justice is allowed to be poisoned by anyone resorting to file false affidavits by giving false statements or fabricating false evidence even by impersonation in a Court of law and as such, this type of acts clearly fall within the definition of criminal contempt as defined under Section 2(C) of the Contempt of Courts Act.

IN THE HIGH COURT OF KARNATAKA

Cr. C.C.C. No. 26/2000

Decided On: 30.07.2003

Advocate General, High Court of Karnataka
Vs.
 Chidambara and Anr.

Coram:
A.M. Farooq and S.R. Bannurmath, JJ.
Citation: 2004 CRLJ493

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Whether Statements made to person authorized by state govt to investigate matter is admissible u/s 157 Evidence Act ?

 Shri R.R. Singh had conducted the enquiry under the

orders of the Government of Haryana, therefore, he was

competent to investigate/enquire into the allegations made in

the Memorandum. As such, all the statements recorded by

him are admissible under Section 157 of the Indian Evidence

Act for the purpose of corroboration. Shri J.K. Duggal and

Shri B.S. Ojha are independent witnesses and they have no

grudge against the appellant-accused as alleged by the learned

senior counsel. For the sake of arguments, even if it is

assumed to be correct that there was some dispute over the

control of HLTA between them, it was not such a big issue

which would have induced them to implicate the

appellant-accused falsely. There is no evidence on record to

substantiate the allegations that these two officers were in any

way instrumental in preparation of Memorandum or

implicating the appellant-accused in the case. There is also no

evidence on record to suggest any nexus of these two officers

with Shri Anand Prakash (PW-1) and Shri S.C. Girhotra

(PW-15). There is no evidence to suggest any enmity between

the appellant-accused and PW-1 to implicate him in a

fabricated case. It is further the case of the appellant-accused

that statement recorded by Shri R.R. Singh cannot be used by

the prosecution for the purpose of corroboration under Section

157 of the Evidence Act. The contention of the accused is not

tenable at all. This section envisages two categories of

statements of witnesses, which can be used for corroboration.

First is the statement made by a witness to any person at or

about the time when the incident took place. The second is the

statement made by him to any authority legally competent to

investigate the matter. Such statements gain admissibility, no

matter that it was made long after the incident. But if the

statement was made to non-authority, it loses its probative

value due to lapse of time. Shri R.R. Singh was an authority

legally competent to investigate the incident. He was asked by

the State Government to enquire into the facts given in the

Memorandum and report thereon. To make a person an

authority legally competent to investigate, it is not necessary

that he should be having authority which flows from a Statute.

It is sufficient that such person was authorized legally by the

State Government to investigate the matter. Hence, we are of

the view that Shri R.R. Singh was authority competent to

investigate the fact in question and the statements given by

the witnesses before him are admissible in evidence

irrespective of time gap between the time when incidents

occurred and the date on which the statements were given.

Shri R.R. Singh was in fact competent to investigate the

matter since the enquiry conducted by him was merely a fact

finding enquiry. 
REPORTABLE

IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION

 CRIMINAL APPEAL NO. 2126 OF 2010

S.P.S. Rathore 

Versus

C.B.I. & Anr.

Dated:SEPTEMBER 23, 2016.

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Whether statements given by witness in departmental enquiry should be on affidavit?

 In the above backdrop and the Standing Orders applicable, coupled with the fact that the Enquiry Officer is neither a Judge nor could the domestic enquiry be said to be a judicial proceeding, the statement in written form put forth by any witness need not necessarily be by way of an affidavit or a notarized document.

25. In the light of the above, the Labour Court as well as the Industrial Court have erroneously concluded that an affidavit alone can be relied upon by the Enquiry Officer. The impugned order and the judgment are, therefore, perverse.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition Nos. 9133 and 9140 of 2015

Decided On: 24.02.2016

 Siddheshwar Urban Co-Op. Bank Ltd. Vs. Ganesh and Ors.

Hon'ble Judges/Coram:R.V. Ghuge, J.

Citation: 2016(2) MHLJ 880

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Whether court can prevent prosecution to examine any person U/S 311 of crpc whose statement is not recorded under S 161 of crpc?

 By order dt.14.8.2015 on Exhibit 143, the learned Magistrate relying upon the decision of this Court in Kishor Singnapurkar & Ors. Vs. The State of Maharashtra & Ors. (Cri. Application No.346 of 2012) has directed the Investigating Officer to record the statement of the witness Dnyaneshwar Khutwad and has further permitted the prosecution to examine him as a prosecution witness. Suffice to say that Section 311 of Cr.P.C. neither mandates recording of the statement under Section 161 of Cr.P.C. nor does this section provides any embargo on summoning any person as a witness, whose statement has not been recorded underSection 161 of Cr.P.C. The only mandate of Section 311 of Cr.P.C. is that the evidence of such person is essential for the just decision of the case.

This being the position, in my considered view, the law neither mandates recording of statement under Section 161 of every such person who is proposed to be examined as a prosecution witness nor bars examination of any persons as a witness, whose statement has not been recorded under Section 161 of Cr.P.C. Needless to state that provisions of Section 161 and311 of Cr.P.C. have got different object, scope and operate in different spheres. Therefore, preventing the prosecution from examining any person whose statement is not recorded underSection 161 of Cr.P.C.

would in my view, render the provisions of Section 311 Cr.P.C. nugatory.

Bombay High Court

Sanjay Vasant Kadam vs The State Of Maharashtra on 29 October, 2015

Bench: Anuja Prabhudessai

DATED : 29th OCTOBER, 2015.

Citation;2016 CRLJ(NOC)103 Bom

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Whether prosecution can confront a witness on the basis of statement recorded U/S 162 of crpc?

The proviso is vital and important.  That clarifies that

any witness is called for the prosecution in the enquiry or the trial and
whose statement has been reduced into writing in terms of sub­section (1)

of Section 162, any part of his statement, if duly proved, may be used by

the accused and with the permission of the Court by the prosecution to

contradict such witness in the  manner provided by Section 145 of the

Indian Evidence Act, 1872 and when any part of such statement is so used,

any part thereof can also be used in re­examination of such witness, but for

the   purpose   only   of   explaining   the   matter   referred   to   in   his   cross-

examination. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1309 OF 2013

Shri Pappu @ Suresh Budharmal Kalani


Versus

The State of Maharashtra       .. Respondent

Read full judgment here;click here

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Whether statement of victim recorded under S 164 of crpc should be kept confidential till filing of chargesheet?

(i) Upon receipt of information relating to the commission of offence of rape, the Investigating Officer shall make immediate steps to take the victim to any Metropolitan/preferably Judicial Magistrate for the purpose of recording her statement under Section 164 Cr.P.C. A copy of the statement under Section 164 Cr.P.C. should be handed over to the Investigating Officer immediately with a specific direction that the contents of such statement under Section 164 Cr.P.C. should not be disclosed to any person till charge sheet/report under Section 173 Cr.P.C. is filed.

   REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICITON

                 SPECIAL LEAVE PETITION (CRL.) NO. 5073/2011

State of Karnataka  V  Shivanna @ Tarkari Shivanna 

          

Dated: April 25, 2014

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Guidelines to Magistrate for recording statement of child victim of sexual assault U/ S164 of CRPC

As per the provisions of Section 118 of the Evidence Act, all persons
are competent to testify, unless the Court considers that by reason of tender
years they are incapable of understanding the questions put to them and of
giving rational answers but then it is for the Judge to satisfy himself as
regards fulfilment of the requirement of the said provision. Thus, as regards

competency of a person to appear as a witness, the legislature has underlined
the basic requirement of a person's understanding of the obligation to speak
the truth and to give an accurate impression and possession of the mental
capacity at the time of the occurrence concerning which he has to testify and
to receive an accurate impression of it. This would be more so in case the
witness is a child of tender years. An assessment by the court of the
competency of a child who is to appear as the witness on these issues is
essential. It is also necessary to ascertain as to whether the witness had a
memory sufficient to retain an independent recollection of the occurrence;
capacity to understanding simple questions about it and the capacity to
express his/her memory of the occurrence.
46.
The evidence of a child witness cannot be rejected per se, but the court
as a rule of prudence is required to consider such evidence with close scrutiny
and if it is convinced about the quality thereto and the reliability of the child
witness it can record conviction based on his testimony. If after careful
scrutiny of the testimony of child witness the court comes to the conclusion
that there is impress of truth in it then there is no reason as to why the court
should not accept the evidence of child witness.
47.
The position of law relating to evidence of child witness was succinctly
stated by the Supreme Court in the decision reported as (1997) 5 SCC 341
Dattu Ramrao Sakhare vs. State of Maharashtra in the following terms:-
"A child witness if found competent to depose to the facts and
reliable one such evidence could be the basis of conviction. In
witness can be considered under Section 118 of the Evidence
Act provided that such witness is able to understand the
questions and able to give rational answers thereof. The
evidence of a child witness and credibility thereof would
depend upon the circumstances of each case. The only
precaution which the court should bear in mind while assessing
the evidence of a child witness is that the witness must be a

reliable one and his/her demeanor must be like any other
competent witness and there is no likelihood of being tutored.
The decision on the question whether the child witness has
sufficient intelligence primarily rests with the trial Judge who
notices his manners, his apparent possession or lack of
intelligence, and the said Judge may resort to any examination
which will tend to disclose his capacity and intelligence as well
as his understanding of the obligation of an oath. The decision
of the trial court may, however, be disturbed by the higher
court if from what is preserved in the records, it is clear that his
conclusion was erroneous. This precaution is necessary
because child witnesses are amenable to tutoring and often live
in a world of make-believe. Though it is an established
principle that child witnesses are dangerous witnesses as they
are pliable and liable to be influenced easily, shaken and
moulded, but it is also an accepted norm that if after careful
scrutiny of their evidence the court comes to the conclusion that
there is an impress of truth in it, there is no obstacle in the way
of accepting the evidence of a child witness."
48.
It is trite that the children have been accorded special treatment by the
legislature (of various countries) and courts because of their special needs.
The environment of a court room is unfamiliar and definitely intimidating to a
child who is required to testify as a witness. The trauma faced by a child
witness where a child witness is a victim as well is further aggravated. This
important subject has received attention of the United Nations as well which
has framed the ‘United Nations Guidelines on Justice in matters involving
Child Victims and Witnesses of Crime 2005’. The UN guidelines prescribe
that the children are particularly vulnerable and need special protection,
assistance and support appropriate to their age, level of maturity and unique
needs in order to prevent further hardship and trauma that may result from
their participation in the criminal justice process. The UN guidelines further
prescribe that female child witness is more vulnerable than the male child
witness and may face discrimination at all stages of the justice system. The

UN guidelines stresses the importance of ensuring dignity and physical,
mental and moral integrity of the child witness; the justice process should be
sensitive to child’s age, wishes, understanding, gender, sexual orientation,
ethic, cultural, religious, linguistic and social background, caste, socio-
economic condition as well as special needs of the child including health,
ability and capacities.
49.
The assessment of competence of a child witness is not an easy task
and fraught with various difficulties, some of which are being enumerated
herein under:-

A court operates in an atmosphere which is intended to be imposing. It
is an atmosphere which is foreign to a child. The child has to testify in the
presence of accused person and other strangers including the presiding
judicial officer, the counsel of the accused, the prosecutor and court officials.
The testimony of child is recorded in an atmosphere which is probably
bewildering and frightening to the child. Unless appropriately adapted to a
child, the effect of the courtroom atmosphere on the child may be to reduce
the child to a state of terrified silence. Instances of children who have been so
frightened by being introduced into the alien atmosphere of the courtroom
they refuse to say anything are not unknown.

The child is required to give evidence in the presence of the accused.
The accused will be a few paces from the child, and will invariably be staring
at the child while the child gives evidence. This scares the child to no lengths
and he often thinks that he would be punished for speaking the truth. In fact,
children worry about seeking the accused again. The research shows that this
is the most common and intense court-related worry among testifying
children.

Children worry about not being believed while testifying, especially the
children who are victims of sexual abuse. The research on children who are
victims of sexual abuse shows that fear of disbelief is a major impediment to
disclosure by children. Children assume that the word of an adult will always
be taken over the word of a child.

Children worry about people finding about the offence while testifying.
A courtroom is a public place and few witnesses relish the public exposure
that testifying entails. Children are no different.
Children worry about getting yelled at, getting into trouble or being
hurt while testifying.
Children worry about getting their facts mixed up or forgetting things
while testifying.
Children may be afraid or embarrassed to say what happened. The
content of a child’s testimony may involve something the child is reluctant to
say out loud, perhaps because it involves body parts, sexual acts or the need
to repeat rude words or bad language someone said to them.
Children worry about repercussions and retaliation by or against their
family while testifying. It is normal for witnesses to worry about retaliation
for testifying. Children are no different, except they might feel more
vulnerable than an adult would.
Since children see the world differently from adults, some details which
may appear to be important to adults like time and place may be missing from
the recollection of children.
Children see adults as authority figures and will therefore accede to
what they say to them.
Young children can be susceptible under specific conditions. These
include: when they are asked about personal events that happened a
substantial period of time age, with no ‘refresher’ interview in the interim;
when they are questioned by a biased interviewer who pursues a hypothesis
single-mindedly.
Very young children (those aged between three and under) have
difficulty understanding that scale models can represent real objects and are
confused about their bodies that require them to represent touching on
anatomical bodies.

Children can assign different meanings to words than those generally
understood by adults. For example, ‘touch’ often means only by hand to the
children. ‘Private part’ often means anything under clothing to the children.

Children often use words without knowing what they mean or have
different understanding from adults as to meaning of a word. For example, a
child could use the word ‘glue’ to mean semen.
Some concepts are developmentally difficult for children to understand
such as ‘behind’, ‘in front of’, ‘above’, ‘beneath’ etc.
Children are reluctant to relate their sad and often sordid experiences to
several different people. As a result, repetition tends to heighten the sense of
shame and guilt of children as to what happened to them.
Children have special difficulty in identifying the source of their
beliefs, so if false information is introduced, they will confuse it with the
event.
It is not only cognitive abilities, memory and social and emotional
factors that affect children’s abilities to give detailed and reliable statements
that can be used in child abuse prosecutions. Their ability to understand and
interpret the questions put to them is also crucial.
50.
Over the years, much research has been done into children’s linguistic
abilities and understanding, and a number of very important points may be

distilled from research, some of which are being enumerated herein under:-
Young children are very literal in use of language, so it is essential to
find out what they mean when they use words and not to assume that they
have the same meaning as an adult would give them.
It takes children longer to process words, so it is essential to give them
time to think and respond to the question; passing during questioning can be
very productive.
Children will not say they do not understand, whether because they do
not realize that they do not understand or because they do not want to show
ignorance; they may not be aware that this is an option.
Use one question for each idea and start the question with the main
idea. For example, ask children ‘did the bell ring when you were eating?’
rather than asking ‘when you were eating, did the bell ring?’
Avoid jumping from one topic to another while questioning the
children.
Do not use word ‘any’ (anything, anyone, anywhere) as these are not
specific and will tend to generate the answer ‘no’; a very young child will not
know what ‘anyone’ means and if asked ‘did you see anyone’ will answer
‘no’. Instead ask ‘who did you see?’ or ‘did you see X?’
Avoid using ‘different’ or ‘the same’ while questioning children:
asking a child ‘was it same as this?’ is confusing for the child; by age five or
six, children may be able to distinguish between ‘the same’ toy – meaning the
actual one they played with – and a similar one, but it may take several more
years to appreciate that things generally similar are regarded by adults as
different.
The word ‘inside’ is problematic for children: in sex abuse cases
involving suspected penetration, a child may need to be asked if an object was

inserted ‘inside’ an orifice and could also be asked how far; this is fraught
with difficulties; it is essential to find out what the child understands by
‘inside’. (For example, anything between the legs could be perceived as inside
by the child) and the question needs to be asked in an age-appropriate way.
Avoid using either/or questions: adults recognize that neither choice
may be accurate; this is difficult for children to do;
How/why questions: in relation to ‘why’, this is seen by a child as
requiring the child to defend herself to justify why something happened;
‘why’ also requires a child to be able to look at motivations, reasoning from
effect back to cause, which children cannot do until about ages 7 to 10.
‘How?’ may require memory of concepts; ‘how many times did that happen?’
may require ability to recognize intention and flow of events; instead of
asking ‘how did he do that?’ ask ‘what did he do?’ ‘Show me what he did?’

Leading questions are confusing for children and result in children
giving incorrect responses.

Pronouns (he, she, they) confuse children. It is better to name the
person being talked about or to ask the child to do so.
(The aforesaid points have been compiled from various materials available on
the internet regarding interviewing/questioning of a child witness).
51.
In this regard, we note an article/paper titled as „Child Witness
Competency: When Should the Issue be Raised‟ written by Ms.Sherrie Bourg
Carter, a renowned Psychologist in U.S.A. The author (Ms.Sherrie Bourg
Carter) notes that the Courts should test following parameters while assessing
the competence to testify of a child witness:-
“*Adequate intelligence and memory to store information.
* The ability to observe, recall, and communicate information.

* An awareness of the difference between truth and a lie.
* An appreciation of the meaning of an oath to tell the truth.
* An understanding of the potential consequences of not telling
the truth.”
52.
Guidance on the nature of questions which could facilitate a fair
evaluation of the child’s competency is also found in said article/paper.
Some questions which have been suggested by Sherrie Bourg Carter for
enabling the judges to determine the competency of the child include the
following:-
“I. For determining Intelligence and Memory-For a young
child, questions about family, school, counting, and knowledge
of the alphabet and colours can provide sense of the child‟s
intelligence and memory. With older children, more difficult
intellectual skills determining their literacy level would provide
information about their intelligence and memory.
II. Ability to Observe, Recall and Communicate-Examples of
recent experiences about which child can be questioned should
include what the child ate or who the child saw that day. An
example of the distant past events should include what
happened say on the child‟s birthday or memorable holiday or
a field trip or a vacation. Further questioning could be about
attended, and what gifts were received. (Of course, these
questions are required to be put keeping in view the socio-
economic background and literacy of the child, especially in
our country).
III. Understanding of Truth and Lie-To assess a child‟s
understanding of these concepts, questions about right and
wrong, real and make-believe, truth and lie typically are
asked.”
It is important to recognize that some types of questions are
more developmentally appropriate than others. For example,
when assessing children‟s understanding of these dichotomies,

interviewers routinely ask children if they know the difference
between them. However, asking children to explain the
difference between two concepts is a more developmentally
difficult task than asking what each concept means. In other
words, questions such as, "What does it mean to tell the truth?"
and "What does it mean to tell a lie?" are more
developmentally appropriate for young children than asking,
"What is the difference between the truth and a lie?
It also is important to recognize that very young children often
are unable to answer even these easier questions in a narrative
form due to their underdeveloped language skills. In one study,
researchers found that none of the four-year-olds in their
sample were able to define either truth or lie whereas 87.5% of
the eight-year-olds were able to define both concepts (Michelle
Aldridge & Joanne Wood, Interviewing Children: A Guide for
Child Care and Forensic Practitioners, 1998). This does not
necessarily mean that four-year-olds do not understand the
meaning of truth and lies. It also does not mean that the open-
ended questions should not be asked. Some developmentally
advanced children may be able to answer in a narrative form,
but if not, there are acceptable alternative questions to help
determine if and how much a child understands these concepts.
For example, young children usually have an easier time
answering multiple-choice questions, such as "If I said my hair
is brown, is that the truth or a lie?" In fact, it is quite common
for interviewers or legal professionals to ask several of these
basic questions. While there is nothing wrong with doing this,
such questions really are not sufficient for several reasons.
First, although most children can correctly answer these types
of basic questions, they do not provide an answer to the real
question of whether the child understands what it means to tell
the truth and what it means to tell a lie. While they may be
appropriate preliminary questions; the standard "If I said my
hair is brown..." type of questions mostly establishes whether a
child knows his or her colours and can provide a correct or
incorrect answer. Secondly, such questions do not place
children in scenarios similar to what judges are ultimately
considering when determining witness competency. The
pertinent question is whether a child who is placed in a

particular situation (the courtroom) and asked questions about
an event they either witnessed or experienced (the alleged
incident) can distinguish what is the truth and what is a lie.
Therefore, in addition to the relatively simple questions, more
situationally relevant questions should be asked when assessing
a child‟s competency to testify, such as:
* If I told your mom that you just yelled at me, would that be
the truth or a lie?
* If you told your mom that I hit you, would that be the truth or
a lie?
* If you told your teacher that something bad happened to you,
but it really didn't happen-you were making it up-would you be
telling the truth or a lie?
Competent children should be able to consistently provide
correct answers to these multiple-choice questions.
IV. Meaning of Taking an Oath-
Children usually are not familiar with the word, oath, but most
recognize the word, promise. Because taking an oath and
making a promise are similar concepts, it is more
developmentally appropriate and more productive to ask
children if they know what it means to make a promise.
Furthermore, substituting the word, promise, for the word,
oath, when swearing in child witnesses has become
increasingly more common and accepted throughout the legal
system (Task Force on Child Witnesses, American Bar
Association Criminal Justice Section, The Child Witness in
Legal Cases, 2002).
Still, as with other open-ended, definition-type questions, young
children may not be able to readily answer the question, "What
does it mean to make a promise? If this is the case, follow-up
questions also should be asked to better assess the child‟s
appreciation, such as:
* If you promise your mom that you are going to eat your
lunch, what should you do? and „Why?‟
* If you promise to tell the truth today, what should you do?

and „Why?‟
Children also should be asked what might happen, both to the
child and the person being lied about, if they said something
happened to them and it was not true. Examples of such
questions are:
* When you get caught telling a lie, what usually happens to
you?
* If you said that your classmate hit you and it was not true-you
were making it up-what could happen to you for lying?
* If you said that your sister hit you and it really didn't happen,
but your dad believed you, what could happen to your sister?”

IN THE HIGH COURT OF DELHI AT NEW DELHI

 Judgment Delivered on: October 13, 2014
 CRL.A. 1190/2014

STATE Vs  SUJEET KUMAR

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
PRADEEP NANDRAJOG, J.
Dated;OCTOBER 13, 2014

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Whether statement recorded u/s 164 of CRPC is substantive evidence?

The second submission which is made by the learned Counsel appearing on behalf of the appellant is that the statement of the prosecutrix which was recorded under Section 164 of the Code of Criminal Procedure cannot be used as a substantive evidence also in my view has to be accepted. It is a settled position that a statement under Section 164 can be used only for the purpose of corroboratiou and contradiction and cannot be used as a substantive piece of evidence. In the case reported in Audumbar Digambar Jagdane and Anr. v. State of Maharashtra,1999 Cri. L. L. 1936 a Division Bench of this Court has observed in para 12 as under:-

"In our opinion once Narayan has not supported the prosecution, the statement given under 164. even if proved, can never be accepted as substantive evidence. In that behalf reference to the decision of the Privy Council is extremely

fruitful. The Committee of the Privy Council speaking through Sir John Beaumont, J. in the aforesaid decision on page 41 (of AIR): (at p.338 of Cri.L.J.) of the report has observed as under:

"...The learned Judges discussed in great detail the statements made by Haliman and Mahabir under Section 164 and gave reasons for accepting the facts or most of the facts, deposed to in those statements, in preference to the evidence given by the witnesses in Court, which in no way helped the prosecution. This was an improper use of such statements. A statement under Section 164 can be used to cross-examine the person who made it, and the result may be to show that the evidence of the witness is false. But that does not establish that what he stated out of Court under Section 164 is true".

8. The Supreme Court also in a number of cases has time and again held that a statement which is recorded under Section 164 can be used only for the purpose of corroboration and contradiction and not as a substantive piece of evidence.1

Bombay High Court

Sajji Kumar S/O Pappu Kumar vs State Of Goa (Through Public ... on 10 June, 2005

V.M. Kanade, J.

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Whether Statement of person recorded U/S161 of Act could be treated as dying declaration after his death?

2011(1)ACR605(SC), AIR2010SC3692, 2010CriLJ4721, JT2010(9)SC322, 2011(1)N.C.C.65, (2010)12SCC224, (2011)1SCC(Cri)318, [2010]9SCR632

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 15 of 2010

Decided On: 04.08.2010

Appellants: Mukeshbhai Gopalbhai Barot
Vs.
Respondent: State of Gujarat

Hon'ble Judges/Coram:
H.S. Bedi and C.K. Prasad, JJ.

Criminal - Conviction - Section 302 of Indian Penal Code, 1860 and Section 32 of Indian Evidence Act, 1872 - High Court reversed judgment of Trial Court and convicted Respondent-accused for offence of murder and under Section 3(ii)(v) of Atrocities Act - Hence, this Appeal - Whether, it was case of homicidal death - Held, perusal of Section 162(2) of Criminal Procedure Code, 1973 with Section 32 of Evidence Act revealed that statement of person recorded under Section 161 of Act could be treated as dying declaration after his death - Thus, Ex.44, first dying declaration made to Magistrate was First Information Report - However, Ex.44 and 48 had completely exonerated Appellant from wrong doing and had attributed burn injuries to accident - No material was produced to indicate Appellant's presence at time of dying declaration - Moreover, reading of Ex.44 and Ex.31 indicated that allegation of attempted rape of deceased was story created long after incident by PW7 in order to take compensation - Statement of doctor was more compatible with version of accidental death than homicide - Thus there was no evidence of homicide and deceased had suffered accidental death - Judgment of High Court set aside and Appellant was acquitted - Appeal allowed.

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