Introduction
Section 157 of the Indian Evidence Act, 1872(“IEA”) allows for the admissibility of statements made by a witness relating to the same fact at a prior point of time. Normally, a witness cannot corroborate himself [i], but under Section 157, the statement can be used as a corroborative (and not conclusive) piece of evidence to supplement the current testimony of the witness. It is used for assessing the witness’ statements reliability by seeing if he/she is contradicting himself/herself.
The logic behind this section lies is two-fold:
- statements made immediately on the occurrence of an event contain truth, for no time has elapsed for concoctions to creep in
- statements solemnly made in the presence of a legally competent authority bear the impression of truth.
Therefore, such statements are a legitimate means of corroboration as they support the credibility of the person whose evidence is corroborated [ii]. Section 157 can be read with a number of sections, e.g. with Section 6 [illustration (a)] and Section 8 [illustrations (f) and (k)]. It can also be admissible as part of res gestae under Section 6, Section 7, Section 8, Section 9 & Section 14 or under Section 33 or under Section 145 or Section 157 of the IEA or as an admission, as was held in Kameshwar Singh v Rex.
Legally Competent Authority
An authority legally competent to investigate the case would naturally include the police officers, investigating offices, the Magistrate, etc. But it seems that the term “authority legally competent” does not purport the strict rule of interpretation. Hence, there is ambiguity as to the applicability of this term. While on the one hand an Inspector of the Criminal Investigation Department is an “authority legally competent” to investigate within the meaning of this section, a statement made before an Investigating Officer is not evidence, but it can be used to corroborate or contradict the witness in the witness box.
Further uncertainty was fueled by the recent Supreme Court case of S.P.S. Rathore v CBI which discussed the scope of “authority of legally competent” to investigate fact. In this case, a girl of 15 years was molested by the appellant(accused). An Inspector General(“IG”) of Police i.e. the DGP at the relevant time was asked by the State Government to enquire into the facts given in the memorandum given by a number of persons regarding the incident, and report thereon. It was contended that this statement cannot be used for corroboration under Section 157. The Court held that the second limb of the statements of witnesses envisages the DGP as a “authority legally competent” to investigate the fact. To make a person legally competent, it is not necessary that he should be having authority which flows from a statute; it is sufficient that such person was authorised legally by State government to investigate the matter, hence he was a competent authority and the statements made before him are admissible in evidence under Section 157 for the purpose of corroboration, irrespective of the time gap between the time when the incidents occurred and the date on which the statements were given.
This judgement is problematic on many levels. There seems to be no rationale behind simply allowing State’s appointee’s to defy the law, and it has to be contrasted with the fact that Section 157 IEA’s general provisions are controlled by the special provisions of Section 162 of the Code of Criminal Procedure(“CrPC”). Section 162 explicitly prohibits the use of the record containing the statement of a witness to the police as evidence against the accused as well as proof of such statement by oral evidence. Such statements cannot be used as corroboration under this section. Statements of witness before investigating officer cannot be used as evidence. Also, the court subtly implies that the time gap between the incident and making of statement is irrelevant. The very meaning of “at or about the time” is discussed in Nathuni Yadav v State of Bihar wherein the Supreme Court held that the time interval between the incident and the statement of the witness should be so short that there may not be any opportunity for tutoring or concoction. Further, in State of Tamil Nadu v Suresh, the court held that whether the statement was made “at or about the time” of the incident would depend on the facts of each case. Hence, the above discussion warrants a more nuanced look towards Section 157 and its possible connotations.
Critique
Section 157 of the IEA is perhaps one of the most important provisions in the Evidence Act as it is one of the few sections inextricably linked to various sections relating to admissibility of facts. Considering its substantial importance, the section is badly drafted and hence there is heavy burden on the judiciary in interpreting this section.
It seems to be fairly vague in its wording, for example, the admissibility of statements obtained through means indicated in the CrPC is not elaborated upon. There is ambiguity as to what all can fall under “statements” under this section. Courts have per discretion, added multiple factors such as documents, account books, tape-recorded statements, diary-entries, letters, Panchnamas, depositions, plaint, post-mortem certificate and even dying declarations. There is uncertainty as to whether FIRs and statements to Magistrate can have corroborative value under this section, and therefore there shall be a specific provision indicating its admissibility.
There is also an inherent contradiction within Section 157. The section allows for admissibility of statements to “any authority legally competent to investigate the fact” which would then necessarily imply the inclusion of investigating officers, police officers and Magistrates. But technically speaking, as per Section 162 of the CrPC (Supra), the statements made to a police officer is not to be signed by the maker and is not to be used for corroborating evidence (only for contradicting under Section 145) under Section 157. Hence, strictly speaking Section 162 CrPC prohibits the admissibility, whereas Section 157 allows for its admissibility. Also, in the light of the abovementioned case of S.P.S. Rathore it is still ambiguous as to whether statements made to a Police Officer or Investigating officer is admissible keeping in mind Section 162 of the CrPC. Therefore, the non-admissibility of statements made under Section 162 of the CrPC should be stipulated in the provision.
In the 69th Law Commission Report, it was observed that to cover statements under Section 164 of the CrPC, or “under other statutory provisions by authorities other than police such as Judicial Magistrates, an amendment of Section 157 is desirable in view of the obscurity prevalent on the subject.” It was recommended in para 88.35 (see also para 88.36A) that Section 157 be modified by a suitable amendment to provide for the above matter. In the case of H.N. Rishbud v State of Delhi the Court recommended the proposed amendment bring within its fold “authorities” which are under law competent to inquire into or to record statements. But what this case didn’t take into account is the admissibility of statements under Section 162 of the CrPC.
Based on all the above factors, the new amended Section 157 should ideally look like this in order to be more effective, clear and unambiguous:
Amended Section 157
“ Former statements of witness may be proved to corroborate later testimony as to same fact.-
- In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved, subject to other provisions in this section.
- With respect to the provisions of the Code of Criminal Procedure, 1973 the following is deemed to be admissible for the purpose of corroboration under this section:
- Statements made in the FIR under Section 154
- Statements made to the Magistrate under Section 164
- No statement made by any witness to a Police/Investigating Officer under Section 162 of the Code of Criminal Procedure, 1973 would be admissible evidence under this section.
- Notwithstanding Section 32, any statement made by a person in a Dying Declaration can be used as a former statement under this section, provided he survives.
Explanation I: The word “witness” as used under this provision refers to statements made by the “same witness”.
Explanation II: The “statements” in question is inclusive of anything written, verbal, words said on oath, or even words uttered in an ordinary conversation.
Conclusion
The primary importance of Section 157 lies in the evidentiary value it holds for prosecution of an alleged offender. In spite of its vague wording, Section 157 is one of the most important provisions in the Evidence Act, 1872 hence making its scope wide in nature. This section being inextricably linked to various provisions, and is of prime significance. The factum of truth in such statements can go a long way in providing useful reliable evidence for investigation and thereby getting offenders prosecuted. At the same time, the statements should not be concocted and there should be no scope of misuse of this statement. Hence, a suitable amendment as illustrated above is proposed for clarity and effectiveness.
[i] R v Nga Myo, AIR 1938 Rang 177 (FB); Lim Yang Hong & Co. v Lam Choon & Co., AIR 1928 PC 127.
[ii] RATANLAL & DHIRAJLAL’S THE LAW OF EVIDENCE (Act I of 1872) (LexisNexis 23) (2010)
About the Author Anshul [2017-22] is pursuing B.A.LL.B (Hons) from JGLS, O.P. Jindal Global University.
Criminal Law Research & Review 