Authenticity of an oral statement under Indian Law

Oral evidence is gaining importance, making it a tedious work for most courts. But oral evidence and its significance does not seem to be going out of style or the courtrooms any time soon. Oral evidence is certainly a tricky maze to maneuver.



People living in civilised society are generally insensitive when crime is committed in their presence. They try and do everything possible to withdraw themselves from a Victim and an Accused, unless and untill it seems inevitable. In this case Appabhai Vs. State of Gujrat AIR 1988 SC 696. This observation was made by the Hon’ble Apex Court when prosecution could not produce independent witnesses in that case. In the process of investigation, under Section 161 of Cr.P.C, any Police officer making an investigation is accredited and empowered to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to records statement of witnesses. These statements are predominantly called as section 161 Cr.P.C statements.

Pic Courtesy- Andertoons.com

This job is to gather the important or any evidence against accused. After filing charge sheet, these statements will also be perused by the Court to take cognizance of an offence. Such a statement can only be utilized for contradicting the witness in the manner provided by Section 145 of the Evidence Act.

Evidentary Value

Oral evidence is a much less satisfactory proof than a documentary proof. But justice can not be administered in the most important cases without resorting to it. In all civilized systems of jurisprudence there is a presumption against prejury. The correct rule is to judge the oral evidence with refrence to the counduct of the parties, and the presumption and the probablities legitimately arising in the case. Another test is to see whether the evidence is consistent with the common experience of mankind, with the usual course of nature and of human conduct and with well known principles of human action. 

The requirements

Courts in India are well aware about the fact that oral evidence is far less satisfactory than documentary one. But that in no way can be grounds for the invalidation of oral evidence. To make sure that oral evidence is not misused and does not hamper the delivery of justice, a few guidelines have been laid down-

  • The oral evidence needs to be consistent with the circumstances, whether it stands true and does not deviate during times of cross-examination
  • In case the oral evidence pertains to a fact that has been seen, then it is the witness who needs to have seen the occurrence and cannot give an oral statement based on hearsay
  • If the court finds it so necessary, then proper documents supporting the oral evidence will have to procured and submit.

Contradicting Statements

Contradicting Statements are when the witness testifies before the court that a certain fact is existed without stating in earlier testimony given to the police, Thus, the conflict between the testimony before the court and the statement made before the police can be said as Contradiction.In Appabhai .Vs. State of Gujrat AIR 1988 S.C. 694 [1988 Cri.L.J. 848], The Hon’ble Apex Court has observed as under: “The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded."

Omission

An omission is either skip or slip, it means ‘exclusion’ or ‘leaving out’. If a certain fact is testified by a witness in his Examination-in-Chief’, such fact, which is testified in Court, had been omitted to state before police, it is called an ‘Omission’. Now, it is to be tested by the Court whether it is a material omission or not. If it is a material omission, it amounts material contradiction. The Hon’ble Apex Court opines that relevant and material omissions amount to vital contradictions, which can be established by cross- examination and confronting the witness with his previous statement. (Ref; Tahsildar Singh ..Vrs..State of U.P., 1959 SCR Supl. (2) 875; AIR 1959 1012 (1026)). However, as was held in Ponnuswamy Shetty v. Emperor (A.I.R. 1957 All. 239), 'a bare omission cannot be a contradiction’.

Pic Courtesy- Bostonglobe.com

Non Production of Independent Witness

It is settled law of criminal jurisprudence that conviction can be based on the testimony of official witnesses and it is not necessary that in each and every case, public persons must be joined in investigation.

In the case of “Appabhai Vs. State of Gujrat” AIR 1988 SC 696, it has been held as under, “It is no doubt true that the prosecution has not been able to produce any independent witness to the murder that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties.

The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the spectrum or the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused.”

Witnessess whose Testimony are Important

 Statements made by whatever other persons are not receivable in proof.In this way, the announcements of a few officers conceding their blame that lesser number of persons were appeared on records of the processing plant to keep it out of the utilization of the Central Excise was held to be not an affirmation against the prosecutor.

There are seven classes of persons who can make affirmations

1.            Party to the procedure (Section 18)

2.            Agent approved by such gathering (Section 18)

3.            Party suing or sued in a delegate character (Section 18)

4.            Person who has any exclusive or monetary interest(Section 18)

5.            Persons from whom the gatherings to the suit haveinferred their enthusiasm for the topic of the suit. (Area 18)

6.            A man whose position is in issue or is applicable. (Area19)

7.            Persons explicitly alluded by the gathering to suit.(Segment 20)

The statement of injured which was recorded as a dying declaration which, consequent upon his survival, is to be treated as a statement

In Sunil Kumar and others Vs. State of M.P. ( AIR 1997 SC 940), in this case the Supreme Court, while dealing with the statement of injured witness, which was then recorded as a dying declaration by the Magistrate, observed that the statement of injured which was recorded as a dying declaration which, consequent upon his survival, is to be treated as a statement under Section 164 of the Criminal Procedure and can be used for “corroboration or contradiction”, unlike the statement under Section 161, which can be used only for “contradiction”.

Honest and truthful witnesses may differ in some details

In State of U.P. Vs. M.K. Anthony AIR 1985 SC 48, the Hon’ble Apex Court laid down certain guidelines in this regard, which require to be followed by the courts in such cases. The Court observed as under - "technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer.”

Statement under Section 161 Cr. P. C is not a substantive piece of evidence

In Rajendra singh vs. State of U.P – (2007) 7 SCC 378, “a statement under Section 161 Cr. P. C is not a substantive piece of evidence. In view of the provision to Section 162 (1) CrPC, the said statement can be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the said proviso. Therefore, the High Court committed a manifest error of law in relying upon wholly inadmissible evidence in recording a finding that Respondent 2 could not have been present at the scene of commission of the crime.”

Pic Courtesy- WBUR.org

Party to the proceeding

“When several persons are jointly interested in the subject -matter of the suit, the general rule is that the admissions of any one of these persons are receivable against himself and fellows, whether they be all jointly suing or sued, or whether an action be brought in favour of or against one or more of them separately, provided the admissions relate to the subject- matter in dispute, and be made by the declaring in his character of a person jointly interested with the party against whom the evidence is tendered." Admissions made by a party’s witness cannot be treated as admissions made by the party. Such admissions do not bind the party.

Agent authorized by such party

The admissions of an agent are admissible because the principal is bound by the acts of his agent done in the course of business and within the scope of his authority. A statement made by an agent whom the court regards, under the circumstances of the case, as expressly or impliedly authorized to make it, is admissible though not on oath, e.g., a statement by an agent before a settlement officer that his principal was a bastard. Before the statements of an agent can be relevant as admissions, the facts of the agency must be proved. Where there is no such relationship, the statement in question would not qualify for relevancy.

Thus, where over a matter of sub-letting, the tenant’s brother stated on affidavit before Income-tax Authorities that he was the tenant, there being no agency relationship between the two brothers, nor there being the signature of the tenant, the Supreme Court held that the statement was not admissible against the tenant.

Persons expressly referred by the party to suit.

This section forms another exception to the rule that admissions by strangers to a suit are not relevant. Under it, the admissions of a third person is also receivable in evidence against, and have frequently been held to be in fact binding upon, the party who has expressly referred another to him for information in regard to an uncertain or disputed matter.

If a reference is made over a disputed matter to a third person, not in the nature of a submission to arbitration, but rather as an aid to the settlement of the differences existing between the parties and to enable the parties themselves to effect a settlement on the information, in such cases the party is bound by the declaration of the person referred to in the same manner and to the same extent as if it was made by himself.