What Is The Procedure Of Recording Statement Of A Witness By An ‘Investigating Officer’? Section 161

Which section empowers police to call witness for recording statement? Is it must that you respond to police summon? 

Publish date: 20-07-2020

Section 161 – Recording of Statement

Recording of statement of a witness by police officer (Investigating Officer) is done u/s 161 Cr PC.

The oral statement given by witness is recorded as a written statement, in case diary.

 

The word statement u/s 161 Cr PC includes both written and oral statement, undersigned by both witness and investigating officer.

 

 

What is prescribed procedure to record statement u/s 161  

The section 161 Cr PC provides the format and guidelines for recording statement from individual witness or group of witnesses:

  1. Separate statement shall be recorded from every witness. The section prohibits the joint statement by a group of witnesses
  2. The statement shall contain the details essential to the offence and trail
  3. The language of statement must be in first person account. For example, the statement shall be like “I saw the victim crossing the road and entering the grocery store”
  4. It is not necessary for Investigating Officer to record in much detail. Statement shall cover the summarized events & circumstances.  A good example of statement shall be like as below :

 

The witness can speak as:  “I saw a person in black coat walking and then recognized him to be Ram. While he was trying to pay the shopkeeper, an argument occurred which further led the physical assault by shopkeeper”.

 

The Investigating Officer can record the statement as : “I saw Ram in argument with shopkeeper, and then was assaulted by shopkeeper”

 

  1. An example of an Invalid Statement, (Joint statements aren’t permitted to be recorded). Every individual is required to provide a singular statement :

 

 “I was going to buy with my brother and we jointly saw that the person was arguing with the shopkeeper.

Special Case u/s 160 Cr PC  :

  • If Witness is Deaf or Dumb then the police can get the written statement or examines by signs. The police officer shall take the help of someone who knows the sign.  
  • For females & people aged less than 15 years, the statement recording shall be done at their residence or place, in the presence of respectable persons or relatives.
  • No joint statements can be recorded

The provisions u/s 160 Cr PC enables the provisions to police for examining & gathering the facts & knowing the complete circumstances of an offence. With this provision, the police can gather the information and locate the offender(s) related to the offence.

 

 

Can you identify objects or provide documents during examination by Investigating Officer

 Section 161 Cr.PC allows:

  • An Investigating Officer to ask you to identify an object if it amounts to recording a statement when your identification of such object is being documented.
  • You may provide a document during examination to support your evidence or statement. Such documents are considered as public documents.

 

“How to record statement if you don’t know the name or identity of accused”

To record a statement u/s 161, as a witness, you may be asked to identify the accused in an identification parade. Basis of identification done in identification parade, statement can be registered as witness evidence.

 

 

 

 

 

Legal Position

The fundamental and elementary legal position is that any person examined by a police officer in the course of investigation, recorded u/s 161 Cr PC, is Not & Can Not be treated as “substantive evidence”

 Substantive evidence is the kind of evidence that is self-explanatory and doesn’t require any support to prove it. Examples of substantive evidence are : 1) bank statement of transactions showing fraud  2) images of child pornography

  • The court examines the piece of evidence provided as statement to police ( u/s 161 Cr PC), If this evidence is proved, it can be used by accused in court for any contradiction
  • Prosecution may also use the statement of his own witness, with the permission of court [section 145, Indian Evidence Act]
  • The prosecution can use this statement for ambiguity or uncertainty found in reply given by witness during cross examination.

 

 

Can You Have Lawyer Assistance During Interrogation?

 If an accused wants the presence of Lawyer at the time of his interrogation, the police may allow engaging a counsel for that purpose.  Ref(1981 Cr LJ97)

 

 

 

 

 

 

Implications of the statements recorded u/s 161 Cr PC &  162 Cr PC 

 In court, the statements have much importance in examination and cross examination. Here the delicate intricacies of finer knowledge of law play an important role, because all the evidences u/s 161 Cr PC isn’t considered as substantive in nature. A counsel with clarity of legal implications, statements examination can be a great contributor in the fairness and accuracy of trail.  

 

Statement made under provisions of Section 162 can be used only for contradiction and not for corroboration.

Following are also important aspects :

  1. Prosecution may use the statement as “dying declaration ” of witness under section 32 of Indian Evidence Act, & Section 27 of Indian Evidence Act
  2. When a person becomes a defence witness, his prior contradictory statement to police cannot be used. This means even if you have given a contradictory statement to police, the statement cannot be used in court if the court recognizes you as a defence witness

 

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