“Confession” And “Statement” Under Section 164 CrPC- Questions & Answers By Justice V. Ramkumar [Part-VIII]

Q.36 Can a statement recorded as a “dying declaration” be treated as a “statement” under Section 164 (5) Cr.P.C. in case the declarant survives ? Ans. Yes. Where a statement is recorded by the Magistrate as a dying declaration and the maker thereof survives, the statement so recorded can be treated as a statement recorded under Section 164 Cr.P.C. and can be used for corroboration or contradiction. (Vide Sunil Kumar v. State of M.P. (1997) 10 SCC 570 = AIR 1997 SC 940 – M. K. Mukherjee, B. N. Kirpal – JJ.) Such a statement recorded as a dying declaration is not then a statement under Section 32 of the Evidence Act but a statement under Section 164 Cr.P.C. It can, therefore, be used under Section 157 of the Evidence Act for the purpose of corroboration and under Section 155 of the Evidence Act for the purpose of contradiction. (Vide para 5 of State of U.P. v. Veer Singh (2004) 10 SCC 117 = 2004 Cri.L.J. 3835 – Doraiswamy Raju, Arijit Pasayat – JJ.) Such a statement recorded by the Magistrate as a dying declaration is neither admissible as res gestae nor as dying declaration. It can be used to corroborate or contradict the testimony of the maker. (Vide Gentela Vijayavardhan Rao v. State of A.P. (1996) 6 SCC 241 = AIR 1996 SC 2791 – Dr. A. S. Anand, K. T. Thomas- JJ.) Q.37 What is the impact of a “statement” under Section 164 Cr.P.C. on the subsequent testimony of the witness in Court ? Ans. The mere fact that the statement of the witness was earlier recorded under Section 164 Cr.P.C. will not in any manner discredit his evidence given before Court. (Vide Ramesh Singh v. State of A.P. AIR 2004 SC 4545 – N. Santhosh Hegde, B. P. Singh – JJ.) But, the earlier rule of caution as laid down in Ramcharan v. State of U.P. AIR 1968 SC 1270 – S. M. Sikri, J. M. Shelat, V. Bhargawa – JJ, must always be borne in mind because such witnesses feel tied down to their earlier statement given on oath. (Vide Balakram v. State of U.P. AIR 1974 SC 2165 – H. R. Khanna, Y. V. Chandrachud - JJ; Somasikhar v. State of Karnataka AIR 2005 SC 1510 – Doraiswamy Raju, Arijit Pasayat – JJ.) Q.38 What is the legal status under the Evidence Act of a “confession” or a “statement” recorded under Section 164 Cr.P.C. ? Ans. The “confession” of an accused or the “statement” of a witness recorded under Section 164 Cr.P.C. is a public document under Section 74 of the Evidence Act. (Vide State of Madras v. G. Krishna AIR 1961 Madras 92 (FB) Somasundaram, R. Iyer, Anantanarayanan - JJ; Guruvindappali Anna Rao v. State of A.P. 2003 Cri.L.J. 3253 (A.P.) – Ramesh Madhav Bapat, S. R. K. Prasad - JJ; Raju Janki Yadav v. State of U.P. 2013 KHC 2125 = 2013 Cri.L.J. 78 (Allahabad) – Dharnidhar Jha, Ramesh Sinha - JJ.) Q.39 Can copies of the “confession” or the “statement” recorded under Section 164 Cr.P.C. be obtained by the Investigating Officer or the accused during the crime stage (investigation stage) ? Ans. The accused cannot but the investigating officer can obtain copies of the “confession” or “statement” during the investigation stage. A Full Bench of the Allahabad High Court in Raju Janki Yadav v. State of U.P. 2013 KHC 2125 = 2013 Cri.L.J. 78 (Allahabad) - Dharnidhar Jha, Ramesh Sinha – JJ, has taken the view that recording of statement of witnesses under Section 164 (5) Cr.P.C. indicates performance of official and judicial function by a Magistrate and as such the statement is a “public document” and the accused is entitled to a certified copy of the same. A learned single judge of the Kerala High Court in Unnikrishnan Nair v. State of Kerala 2014 KHC 2515= 2014 (1) KLT 146 – B. P. Ray – J, had also taken the view that a statement under Section 164 (5) Cr.P.C. being part of the record cannot be denied to the accused. However, a Full Bench of the Madras High Court in State of Madras v. G. Krishna AIR 1961 Madras 92 - Somasundaram, R. Iyer, Anantanarayanan – JJ, had taken the view that although a statement recorded under Section 164 (5) Cr.P.C. may be a “public document” under Section 74 of the Evidence Act, the right of the accused to get copies of the same before the filing of the charge sheet, has been taken away by Section 173 (4) of the 1898 Cr.P.C. corresponding to Section 173 (7) of the present Code. It may be noted that a “confession” or a “statement” recorded under Section 164 (4) or Section 164 (5), as the case may be, is a document to be directly forwarded by the recording Magistrate to the Jurisdictional Magistrate under Section 164 (6) Cr.P.C. It is not one of the documents referred to in Section 173(5)(a) Cr.P.C. and the Police officer filing a charge sheet under Section 173(2) Cr.P.C. is obliged by Section 173(7) Cr.P.C. to furnish to the accused only copies of all the documents referred to in Section 173(5) Cr.P.C. which do not include a statement under Section 164 Cr.P.C. It should not be forgotten that a ...

“Confession” And “Statement” Under Section 164 CrPC- Questions & Answers By Justice V. Ramkumar [Part-VIII]

Justice V Ramkumar

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