A judgment inviting Police Raj
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Published by Advocate John S. Ralph
Bhagwan Dass ( God’s servant) has despised and dishonored his Divine name by an honor killing and was convicted by the apex court. Bhagwan Dass Vs State (NCT of Delhi) (2011) 6 SCC 396, (2011) 2 SCC (Cri) 985.
Honor killings have to be stopped. It dishonors the society. Even its nomenclature is misleading and it is to be rewritten to be “dishonor killings”
Witness has a right to deny 161
The apex court verdict is welcomed. But the revolting method that was adopted for evaluating a particular set of evidence is apparently shocking.
Bereft of details the story goes like this. Being aggrieved by the conduct of his daughter in having an incestuous relationship with her uncle, the accused killed her to save his honor. Immediately after the incident the accused told his mother that he has committed the crime. That statement / extra judicial confession to his mother was recorded by the police u/s 161 Cr.P.C when she was questioned by them. While under examination in the box she denied that statement/ extra judicial confession. She was declared hostile and statement was put to her and on her denial it was marked as a prosecution document.
Evidence on oath should prevail over an unsigned statement
The apex court took this piece of evidence as an incriminating factor against the accused, by finding shelter in the proviso U/s 162(1) Cr.P.C. and treated the statement as an extra judicial confession.
Para 16 of the judgment reads “We are of the opinion that the statement of Dhillo Devi to the police can be taken into consideration in view of the proviso to section 162(1) Cr.P.C and her subsequent denial in court is not believable because she obviously had after thoughts and wanted to save her son ( the accused) from punishment. In fact in her statement to the police she had stated that the dead body of Seema was removed from the bed and placed on the floor. When she was confronted with this statement in court, she denied that she had made such a statement before the police. We are of the opinion that her statement to the police can be taken into consideration in view of the proviso to 162(1) Cr. P.C”
The privilege of golden silence, the corner stone of Evidence Act
This is a colossal mistake and is against the scheme of the Cr.P.C and Evidence Act. A police officer can record the statement u/s 161 Cr. P.C. of any person acquainted with the facts and circumstances of the case. This includes the accused since he is also a person who is acquainted with the facts of the case. (1972 SC 1331; (1991)4SCC 341)Nevertheless he is protected u/s 161(2) Cr. P.C. which says that the person need not answer questions which have a tendency to expose him to a criminal charge. (This is the right to golden silence which has roots under article 20(3) of the constitution of India, 313(3) and 315(b) Cr. P.C.). But there is a blanket bar u/s 162(1) Cr. P.C. which prohibits the police to get it signed by the author of the statement. This has various reasons and the prominent among them are :
- The person so examined may turn to be the accused in a later stage and if the statement is signed, it may invite trouble.
- When faced with a brutal crime persons may come forward with false statements against suspects which they may retract later when they realize the truth.
- The police may force persons to give statements from which they may not be permitted to vary in court even though they believe the statement to be untrue if the statement is signed.
( And if the police want a person to be loyal to the prosecution in the later stage of the trial, the recourse should be U/s 164 Cr.P.C, in which the statement is recorded by the magistrate in a judicial proceeding)
Hence the use of such statements before the police are totally barred except for the purpose of contradicting the said witness during the trial as is provided in the proviso to Section 162 Cr. P.C. Confronting the statement before the police u/s 145 of the Evidence Act which is inconsistent with the statement before the court is for the purpose of contradicting the said witness. The apex court erroneously used this proviso and used it against the accused.
This will unnecessarily give more weight to the unsigned statement before the police than the evidence adduced before the court of law on oath and thus will shake the base of a judicial proceeding and the sacredness of the oath.
Police statements in lieu of proof affidavits !
The purpose of contradicting a witness u/s 162 Cr. P.C. is to impeach the credit of witness u/s 155(3) of the Evidence Act. When the credit of witness is impeached it has to be chewed out of considerations while evaluating his/her evidence. (1946)2 Cal 339; 1926 Cal 139 followed in AIR 1975 SC 1400. The Supreme Court has repeatedly said that the ‘contradicted’ statement of the hostile witness cannot be used for the purpose of giving assurance to the Prosecution story. (Sat Paul Vs Delhi AIR 1976 SC 294 ; Prakash Chand Vs Delhi AIR 1979 SC 400)
And if such contradictions are permitted to be used in favour of the prosecution, a trial before the criminal court will become a farce. And if that be so , the court need only peruse the statements before the police and can render a judgment.
Should we welcome a Police Raj ?
This paradox will invite “Police Raj”. Lord Macaulay had foreseen it and incorporated Sec.25 in the Evidence Act, Code Napoleon has developed into a bar U/s 162 Cr.P.C and a protection U/s 316 Cr.P.C, our Constitution has protected it under Art.20 (3)
Even the police know this. That’s why they make statements in a careless manner without dates and details. But how the Apex Court could come to such a finding and allow the statements before the police to go in evidence that is contradictory to what the witness affirmed on oath. It will be against the statutes and law declared by the courts in India through ever so many judgments. Let’s hope that a larger bench will rectify the same and prevent a Police Raj.
“Its prudent to error on the safer side” Chandra Sekhar Iyer. J (1953 AIR SC 131)