To explore statement of witness effectively

THE detection of crime and collection of evidence are one of the major duties of our police force. The prime object of investigation is to detect the accused persons who are involved in commission the offence. However, in many instances the investigating officers are found to be inefficient, negligent and biased in discharging their duties.  The delayed, defective and biased investigation of crimes is one of the major stumbling blocks that haunt our criminal justice system for long.

It goes without saying that very low conviction rate in criminal cases is reflective of our stagnant criminal justice regime. It also appears in many cases that accused persons are acquitted in view of sheer discrepancies in the statements of witnesses before and during trial.

While investigating a police case (GR case), the investigating officer (IO) may require the attendance of any person who is supposed to be acquainted with facts and circumstances of the occurrence (Section 160, Code of Criminal Procedure 1898). IO may examine orally such persons who are legally bound to answer his/ her queries in connection with the occurrence, except those which may expose their criminal implications thereby. Oral examination of the witnesses as such requires to be reduced into writing. This is known as statements of witnesses recorded under section 161. Such statements of witnesses made before the police do not require to be signed by the persons making them.

One of the compelling reasons behind examining the witnesses as such is to ascertain the truthfulness or falsehood of the accusation as spelt out in the First Information Report (Ejahar). Another philosophy behind the recording of such statements is that accused side should be given the opportunity to compare the statements made during investigation and during trial as defence should not be taken by surprise during trial.

If the defence side can show the inconsistencies and vagueness of such statements of the witnesses to the effect that charge is absolutely groundless, the presiding judge is to discharge the accused. On the other hand, at the charge- hearing prosecution side brings notice of such statements to show that there is prima facie ground for presuming that such accused person has committed the offence.

It is a settled principle of criminal jurisprudence that no statement made to a police is admissible as substantive evidence unless something definite is recovered or collected in connection with the previous statements (For details see Ss. 25, 27, Evidence Act 1872). It is a common knowledge that such statements are made before the police in absence of the accused and are not signed by the maker. The maker does not take any oath before making such statements. It cannot be used by the prosecution to corroborate or contradict the statements of its own.

In other words, 'the statements of witnesses thus recorded cannot be used by the prosecution, but can be used by the defence alone under section 162 of Code of Criminal Procedure 1898 to contradict the prosecution witnesses in the manner provided by section 145 of the Evidence Act 1872'.

In practice, IOs are not in the habit of recording the statements of witnesses while examining them, but subsequently make a summary of what the witnesses said at the time of such examination. With the help of private scribe (munshi), they prepare the record of those statements at their 'free time'.  As a result, many vital points are found to be missing in the statements of the witnesses. It is not expected that IOs are required to record the statement of witnesses in minute details. It is also now decided that minor omissions in the statements of witnesses do not materially affect the merit of the prosecution case.

It is also settled by the precedents that recording of witnesses' statements in some boiled form is quite irregular. If these causes substantially prejudice to the accused, the trial may be vitiated. Likewise, recording of joint statements of several persons is not proper in the eye of law. In delving into delicate right of accused, occasionally our apex Court skewed the evidence of witnesses out of consideration because they were examined by the investigating officer after long time.

Recording of statement of witnesses after a long lapse of time positively cast serious doubt if no explanation is given for such inordinate delay. There is also chance of concoction and embellishment of prosecution story if IOs are not vigilant enough to record the statements of the witnesses on time.

The prosecution witnesses also have no idea as to what have been written as their statements because such statements are never read over to them. Many informants have complained in protest petition (naraji) that IOs have not recorded the statements of the witnesses exactly as to what they have said to IOs during investigation. It appears that IOs have either very little idea or somehow oblivious to the importance of statements made under section 161.

It is also apparent that there is no effective pre-trial meeting between the prosecutor and the prosecution witnesses which put the witnesses at bay during trial. Apart from myriad of loopholes apparent in the investigation, lackadaisical and delayed recording of statements of the witnesses during investigation is a sure recipe to acquit the accused while discernable inconsistencies creep in between the statements of witnesses during investigation  (before trial) and during trial.

Following suggestions are forwarded to explore such statements effectively:

a)    Concerned Judicial Magistrate should maintain effective supervision over the activities of the IOs.

b)    Judicial Magistrate should call for the case diary from time to time to review the pen picture of the development of the investigation.

c)    IOs should be compelled to write down the versions of the witness by their own hands.

d)    Sound recording of the speech of the witnesses in some compact disc form etc. should be introduced. This sound recording will form part of the police report.

e)    In case of investigation of heinous crimes, IOs may place the star witnesses before the concerned Magistrate to have their statements recorded.

f)    Suggestion for appending the signatures of the witnesses in the recorded statements may be under consideration. Accordingly, relevant provisions of laws may be amended.

g)    Effective pre- trial conference of public prosecutor and prosecution witnesses is a must so that witnesses are supervised as to what they will depose during trial.

h)    Victims' rights should be high in the agenda of criminal justice reform. Informant/ victim should be sensitised about their rights and duties.

i)    National dialogue should be initiated for establishing separate investigating agency under the direct supervision of judicial magistracy.

j)    Regular Police- Judicial Magistracy conference as contemplated in Criminal Rules & Orders, 2009 is a must.

k)    Permanent prosecution office will ensure the professionalism and quality of justice.

l)    Development of infrastructure of criminal courts with the innovative exploration of modern technology is indispensable for proper administration of criminal justice.

m)    Delinquent investigating officers should be admonished while efficient officers should be rewarded.

n)    Judges, investigators, prosecutors should be trained up at home and abroad.

The writer is Additional Chief Judicial Magistrate at Bangladesh Judicial Service.