Delay In Recording Witness Statements Under Section 161/164 CrPC Not Fatal If There Is Adequate Explanation : Supreme Court

The Supreme Court held that a delay in recording an eyewitness's testimony would not draw an adverse inference against the prosecution's case if the delay is adequately explained.

The bench comprising Justices Abhay S Oka, Ahsanudding Amanullah, and AG Masih refused to interfere with the conviction of the appellants who challenged their conviction under Section 302 (murder) read with Section 34 (common intention) of the IPC. The appellants raised a ground that the eyewitnesses examination was conducted after 3/4 delays of the incident. They referred to the case of Ganesh Bhavan Patel v State of Maharashtra, (1978) 4 SCC 371 to argue that the delay caused in their examination is always fatal to the prosecution's case.

However, the Respondent-State argued that the delay in recording the eyewitness's testimony was due to the investigating officer's involvement in maintaining the law and order of the affected area, where the violence took place. Thus, the State argued that the delay caused was sufficiently explained, hence the accused cannot claim benefit.

Rejecting the Appellant's argument, the judgment authored by Justice Amanullah observed that when the delay occurred in recording an examination of an eyewitnesses was sufficiently explained than no adverse inference would be drawn against the prosecution's case.

“Insofar as the delay of 2/3 days in recording the statements of the eye-witnesses under Section 161(5) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code') is concerned, the said delay has been thoroughly explained by the witnesses, including the Investigating Officer, to the effect that there were riots in the area. On this score, the Investigating Officer was involved in maintaining law and order in the affected area. In the attendant facts and circumstances, the course of action adopted by the police cannot be termed unjustified and no adverse inference can be drawn on this count.”, the court observed.

“Thus, stricto sensu, delay in recording witness statements, more so when the said delay is explained, will not aid an accused. Of course, no hard-and fast principle in this regard ought to be or can be laid down, as delay, if any, in recording statements will have to be examined by the Court concerned in conjunction with the peculiar facts of the case before it. Our reading of the above shall apply on all fours to delays in the context of Section 164 of the Code.”, the court added.

The Court referred to the case of Lal Bahadur v. State (NCT of Delhi) (2013) 4 SCC 557, where a delay of 27 days in recording the witness's statement was held to be non-fatal to the prosecution's case due to break out of communal violence.

The Court noted that the decision passed by the co-ordinate bench in the case of Ganesh Bhavan Patel's case cannot be said to be authority on the point because in that case “the delay in recording statements of the material witnesses was accompanied by a delay in registering of the FIR and the surrounding circumstances, which led the Court to hold that there was a 'a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story.”

Accordingly, the Appeal was dismissed, and the conviction was upheld.

Case Title: FIROZ KHAN AKBARKHAN VERSUS THE STATE OF MAHARASHTRA

Citation : 2025 LiveLaw (SC) 349

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Appearances:

For Appellant(s) Mr. Kiran Suri, Sr. Adv. Ms. Nidhi, AOR

For Respondent(s) Mr. Aaditya Aniruddha Pande, AOR Mr. Siddharth Dharmadhikari, Adv. Mr. Shrirang B. Varma, Adv. Mr. Bharat Bagla, Adv. Mr. Sourav Singh, Adv. Mr. Aditya Krishna, Adv. Ms. Preet S. Phanse, Adv.