S.164 CrPC Statement Recorded By Judicial Magistrate Can't Be Retracted By Witness On Flimsy Grounds : Supreme Court

The Supreme Court observed that the statements recorded under Section 164 of Cr.P.C. cannot be easily retracted as greater amount of credibility is associated with such statements because they are recorded by a judicial magistrate.

The bench comprising Justice Bela M Trivedi and Justice Satish Chandra Sharma heard a criminal appeal filed by the accused who challenged their conviction based on the retracted version of the two prosecution witnesses who initially in their Section 164 Cr.P.C. statements supported the prosecution's case. After the recording of the statements before the judicial magistrate, the prosecution witnesses claimed that the statements they gave were under threat and coercion from the Investigating Officer.

Upholding the conviction, the Court observed that the retraction from the signed statements before the judicial magistrate under Section 164 Cr.P.C. was not permissible when the statements were admitted by the witnesses. The Court reasoned that otherwise, it would not make a difference between the statements recorded by the police under Section 161 Cr.P.C. and the judicial magistrate under Section 164 Cr.P.C.

“Having said so, we deem it fit to observe that a statement under Section 164 CrPC cannot be discarded at the drop of a hat and on a mere statement of the witness that it was not recorded correctly. For, a judicial satisfaction of the Magistrate, to the effect that the statement being recorded is the correct version of the facts stated by the witness, forms part of every such statement and a higher burden must be placed upon the witness to retract from the same. To permit retraction by a witness from a signed statement recorded before the Magistrate on flimsy grounds or on mere assertions would effectively negate the difference between a statement recorded by the police officer and that recorded by the Judicial Magistrate. In the present matter, there is no reasonable ground to reject the statements recorded under Section 164 CrPC and reliance has correctly been placed upon the said statements by the courts below.”, the Court observed.

Justice Sharma, in the judgment, said that although no substantive values are attached to Section 164 Cr.P.C. statements, they can be used under Section 157 of Evidence Act, 1872 for contradiction and corroboration of witness. Based on this assertion, the Court faulted the intention of the appellants to not cross-examine the Investigating Officer (IO) against whom they alleged that the prosecution witnesses Section 164 statements were recorded under his (IO's) threat.

“PW-3 and PW-4 have deposed that they were under threat from the concerned Investigating Officer who was present along with them before the Magistrate. The concerned Investigating Officer has been examined as PW-8 in the present case and during his examination, there is not even a suggestion from the appellants to the effect that he was present along with PW-3 and PW-4 at the time of recording their statement under Section 164 or to the effect that he had threatened them to give incriminating statements against the appellants. Furthermore, the concerned Magistrate could have been examined as a witness in the present matter to clear the controversy on this aspect and for unexplained reasons, he was never called for examination especially when a completely hostile version was being provided by the witnesses qua the proceedings which were conducted before him. The appellants failed to place any material on record to justify the allegation of threat and as discussed above, the statements of PW-3 and PW-4 recorded under Section 164 CrPC reflected the correct version of the events that transpired on the fateful day.”, the court observed.

Also, the Court overruled the possibility of retraction upon finding that the prosecution witnesses' statements were recorded by the judicial magistrate after a long gap of 25 days from the date of the incident, thus eliminating any chance that the statements were given hurriedly.

“In the present case, the statements of PW-3 and PW-4 were recorded by the Judicial Magistrate on 09.10.2003 i.e. almost after the incident. Thus, their statements were recorded after the passage of a considerable time and could not be termed as hasty statements as there was sufficient cooling period for the witnesses to think over and contemplate the consequences of their statements. During this entire period, both PW-3 and PW-4 remained with their family and it is not their case that they were kept under influence or were tutored during this period. Pertinently, PW-1 has also deposed that on certain occasions, PW-3 had accompanied the deceased Devaki to her maternal home, which indicates that PW-3 had a sense of attachment with the deceased and the same could have been the reason for giving a statement against her own brother and mother (accused).”, the court said.

Since the case was based on circumstantial evidence no chain of events was disproved by the appellants, thus, the Court affirmed the impugned judgments convicting the appellants.

“In light of the foregoing discussion, we are of the considered view that the Trial Court and High Court have correctly appreciated the evidence on record. We are unable to find any infirmity in the findings of the courts below and the impugned order is sustainable in the eyes of law. In the absence of a finding of illegality or perversity or impossibility of the impugned findings, consistent views taken by two courts cannot be disturbed on mere conjectures or surmises. Accordingly, the present appeal is dismissed.”

Appearance:

For Appellant(s) Mr. Sachin Patil, Adv. Mr. Satyajit A Desai, Adv. Mr. Siddharth Gautam, Adv. Mr. Abhinav K. Mutyalwar, Adv. Mr. Sachin Singh, Adv. Ms. Anagha S. Desai, AOR

For Respondent(s) Mr. Sudarshan Singh Rawat, AOR Ms. Saakshi Singh Rawat, Adv. Ms. Rachna Gandhi, Adv.

Case Title: VIJAYA SINGH & ANR. VERSUS STATE OF UTTARAKHAND, CRIMINAL APPEAL NO. 122 OF 2013

Citation : 2024 LiveLaw (SC) 928

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