BhagwanDass ( God’s servant) has despised and dishonored his Divine name by an honor killing and was convicted by the apex court. Bhagwan Dass Vs State (NCT of Delhi) (2011) 6 SCC 396, (2011) 2 SCC (Cri)985.
Honour killings have to be stopped. It dishonours the society. Even its nomenclature is misleading and it is to be rewritten as “dishonor killings”
The apex court verdict is welcomed. But the revolting method that was adopted for evaluating a particular set of evidence is against the basic principles of Evidence and is apparently shocking.
Bereft of details the story goes like this. Being aggrieved by the conduct of his daughter in having an incestuous relationship with her uncle, the accused killed her to save his honour. Immediately after the incident the accused told his mother about it. That statement / extra judicial confession to his mother was recorded by the police u/s 161 Cr.P.C. While under examination in the box she denied that statement/ extra judicial confession. She was declared hostile and statement was put to her and on her denial it was marked as a prosecution document.
The apex court took this piece of evidence as an incriminating factor against the accused, by finding shelter under the proviso to Sec 162(1) Cr.P.C. and treated the statement as an extra judicial confession.
Para 16 of the judgment reads “We are of the opinion that the statement of Dhillo Devi to the police can be taken into consideration in view of the proviso to section 162(1) Cr.P.C and her subsequent denial in court is not believable because she obviously had after thoughts and wanted to save her son ( the accused) from punishment. In fact in her statement to the police she had stated that the dead body of Seema was removed from the bed and placed on the floor. When she was confronted with this statement in court, she denied that she had made such a statement before the police. We are of the opinion that her statement to the police can be taken into consideration in view of the proviso to 162(1) Cr. P.C”
The privilege of golden silence, the corner stone of Evidence Act
The procedure adopted by the court is a colossal mistake and is against the scheme of the Cr.P.C and Evidence Act. A police officer can record the statement u/s 161 Cr. P.C. of any person acquainted with the facts and circumstances of the case. This includes the accused since he is also a person who is acquainted with the facts of the case. (1972 SC 1331; (1991)4SCC 341)Nevertheless he is protected u/s 161(2) Cr. P.C. which says that the person need not answer questions which have a tendency to expose him to a criminal charge. (This is the right to golden silence which has its roots under article 20(3) of the constitution of India, 313(3) and 315(b) Cr. P.C.). But there is a blanket bar u/s 162(1) Cr. P.C. which prohibits the police to get it signed by the author of the statement. This has various reasons and the prominent among them are :
(And if the police want a person to be loyal to the prosecution in the later stage of the trial, the recourse should be U/s 164 Cr.P.C, in which the statement is recorded by the magistrate during the investigation stage)
Hence the use of such statements before the police are totally barred except for the purpose of contradicting the said witness during the trial as is provided in the proviso to Section 162 Cr. P.C. Confronting the statement before the police which is inconsistent with the evidence before the court, is for the purpose of contradicting the said witness. The apex court erroneously used this proviso and used it as piece of evidence against the accused. It is a massive mistake.
If we go beyond these basic rules of evidence, it will unnecessarily give more weight to the unsigned statement before the police than to the evidence adduced before the court of law on oath and thus will shake the base of a judicial proceeding and the sacredness ofthe oath.
Police statements in lieu of proof affidavits !
The purpose of contradicting a witness u/s 162 Cr. P.C. is to impeach the credit of witness in terms of Section 155(3) of the Evidence Act. When the credit of witness is impeached it has to be chewed out of considerations while evaluating his/her evidence. (1946)2 Cal 339; 1926 Cal 139 followed in AIR 1975 SC 1400. The Supreme Court has repeatedly said that the ‘contradicted’ statement of the hostile witness cannot be used for the purpose of giving assurance to the Prosecution story. (Sat Paul Vs Delhi AIR 1976 SC 294 ; Prakash Chand Vs Delhi AIR 1979 SC 400)
And if such contradictions are permitted to be used in favour of the prosecution, a trial before the criminal court will become a farce. And if that be so , the court need only to peruse the statements before the police and render a judgment.
Should we welcome a Police Raj ?
This paradox will invite “Police Raj”. James Fritzjames Stephan had foreseen it and incorporated it in Sec.25 in the Evidence Act, ( by adopting the same from the Cr.P.C of that time) and later it hasdeveloped into a statutory bar U/s 162 Cr.P.C and also as a protection U/s 316 Cr.P.C, by deriving the force from Art.20 (3) of the Constitution.
These are elementary. But how could the Apex Court come to such a finding and allow the statements before the police to go in evidence that is contradictory to what the witness affirmed on oath. It will be against the statutes and law declared by the courts in India through ever so many judgments.
Robert Jackson of the US Supreme Court said "We are not final because we are infallible, but we are infallible only because we are final “ So let’s hope that a larger bench will rectify this erroneous proposition and thereby prevent a Police Raj.
Image from here.
Adv. John S. Ralph is a Lawyer practising at High Court of Kerala.