“Ends do not justify means!”
“Good in intent becomes the evil in effect.”
I. Introduction:
An investigation into an offence should be fair and proper – this being the old school thought prevalent for several years. While investigating offences under the respective laws, the Investigating Agencies are seen to employ, sometimes commendably, all means and methods available to them under law towards the interest of justice, however, unfortunately, in certain instances, also towards the blatant abuse of power thereof.
One such rampant blatant abuse of process of law is the recording of several statements of a single person (witness / suspect) labelling them as “supplementary” statements; on occasions, recorded repeatedly until the desired version is achieved, in line with the pre-designed script.
And, when this magical version is achieved, the previous statements are disregarded as non-existent, and labelled “un-relied” by the agencies, and the agencies then insist on consideration of ONLY the latest version [that is, Supplementary Statement (No. 3 or 5 or 10, as the case may be)]; also emphasising that any contradiction / improvement / embellishment from the previous statements is a matter of trial.
It is as if statements are like technological developments, with the latest softwarestatement update being the best, such approach being in stark contrast to the accepted principle that old is gold.[1]
II. Even with noblest of intentions, ends never justify the means:
At the outset, it is stated that for the present purposes, one should not proceed on the assumption that the intention of the Investigating Agency in recording Supplementary Statements of witnesses is always mala fide.
When such supplementary statements are w.r.t. unchartered aspects, the recording of such statements may be essential for the purposes of investigation, however, when such statements pertain to aspects already replied to, then it is, but natural to pause, and consider whether to rely upon the same or not.
Then, it is no answer to state that the officers are presumed to be reasonable men who do not stand to gain in the abuse of their power and have recorded the statement(s) with noble intentions.
The intention of the Investigating Agency, even if noble or to say, noblest, does not justify the means (i.e. recording of such supplementary statements) to achieve the ends (i.e., to book someone for the crime), nor does such intention render the supplementary statement reliable.
When the question arises whether the officer can be trusted to use his ‘discretion’ with discretion, one must turn to Page 3 of Parliamentary Supervision of Delegated Legislation by John E. Kersell, 1960 Ed., wherein it was stated that:
“The point is, however, that no one ought to be trusted with power without restraint. Power can be of an encroaching nature, and its encroachments are usually for the sake of what are sincerely believed to be good, and indeed necessary, objectives. Throughout history the most terrible form of tyranny has been the forcing on human beings of what someone believes to be good for them. … … Human nature, being what it is, has to be protected against itself, and where power is concerned the very existence of the possibility of restraint, as we shall see, is a safeguard against abuses in which ends may be used to justify means and the good in intent becomes the evil in effect.”
This above portion was noted with approval in State of Punjab v. Khan Chand, (1974) 1 SCC 549 (Constitutional Bench).
The mere existence of a legitimate State, will not justify the means, which are adopted. Ends do not justify means, at least as a matter of constitutional principle. [Ref: K.S. Puttaswamy (Aadhaar-5J.) v. Union of India, (2019) 1 SCC 1 : 2018 SCC OnLine SC 1642 (Constitutional Bench), Para 1430]
III. Points for consideration:
The questions that, thus, falls for consideration are:
- Is recording of Supplementary Statements permissible in the eyes of law?
- What is the probative value of such Supplementary Statements?
- Can embellishments / improvements in such Supplementary Statements be considered at initial stages or it is only a matter of trial?
IV. Permissibility of recording such statements:
Statements of witnesses under Code of Criminal Procedure, 1973 are recorded in terms of Section 160 / 161 Cr.P.C.[2], whereas statements under PMLA, 2002 are recorded in terms of Section 50 (2) and (3) PMLA, 2002[3].
The above provisions do not, in any manner, restrict the right of the Investigating Agencies in recording Supplementary Statements, and in fact, there seem to be unbridled power provided to the Investigating Officer to record as many Supplementary Statements as he deems fit.
However, as the power provided is unbridled, it is always a reasonable test to determine the circumstances under which such Supplementary Statements have been recorded.
Did the witness / suspect change his statement after an adverse event, such as raid or arrest of an accused?
Did the witness have the benefit of tutoring to improve upon his version?
V. Fair Investigation is a must, to rule out possibility of fabrication of evidence:
- An investigation is required to be fair and free from objectionable features or infirmities:
The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the Investigating Officer to conduct the investigation in a manner to avoid any kind of mischief and harassment to any of the accused. The Investigating Officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. [Ref: Babubhai Vs. State of Gujarat and Ors. (2010) 12 SCC 254]
- Investigating Officer not to bolster the prosecution case:
The Investigating Officer “is not to bolster up a prosecution case with such evidence as may enable the court to record conviction but to bring out the real unvarnished truth”. [Ref: R.P. Kapur Vs. State of Punjab AIR 1960 SC 866; Jamuna Chaudhary and Ors. Vs. State of Bihar AIR 1974 SC 1822 and Mahmood Vs. State of U. P. AIR 1976 SC 69]
- Fair Investigation is a fundamental right envisaged under Articles 20 and 21 of the Constitution of India:
A trial encompasses investigation, inquiry, trial, appeal and retrial i.e. the entire range of scrutiny including crime detection and adjudication on the basis thereof. And that it is judicially acknowledged that fair trial includes fair investigation as envisaged by Articles 20 and 21 of the Constitution of India. [Ref: Pooja Pal vs Union Of India And Ors (2016) 3 SCC 135]
VI. Essential incriminating evidence ought to be disclosed at the inception and any omission affects the probabilities of the case under Section 11 of the Evidence Act:
- Omission to state certain facts within the knowledge of the witness detrimental to the prosecution case and affecting the probabilities of the case under Section 11 of the Evidence Act:
In Ram Kumar Pandey v. State of M.P., (1975) 3 SCC 815, it was held as under:
9. No doubt, an FIR is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known up to 9-15 p.m. on March 23, 1970, were bound to have been communicated. If his daughers had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the FIR. We think that omissions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case.
- Not giving evidence of important incriminating nature even for a day is fatal to the prosecution case:
In State of Orissa v. Brahmananda Nanda, (1976) 4 SCC 288, in a matter relating to “horrendous crime” in which six persons were done to death, it was held that the witness not coming forward to name the Accused for a day and a half was fatal. It was held as under:
2. The entire prosecution case against the respondent rests on the oral evidence of Chanchala (PW 6) who claimed to be an eyewitness to the murder of Hrudananda, one of the six persons alleged to have been killed by the respondent. The learned Additional Sessions Judge believed her evidence, but the High Court found it difficult to accept her testimony. The High Court has given cogent reasons for rejecting her evidence and we find ourselves completely in agreement with those reasons. We have carefully gone through the evidence of this witness, but we do not think we can place any reliance on it for the purpose of founding the conviction of the respondent. The evidence suffers from serious infirmities which have been discussed in detail by the High Court. It is not necessary to reiterate them, but it will be sufficient if we refer only to one infirmity which, in our opinion, is of the most serious character. Though according to this witness, she saw the murderous assault on Hrudananda by the respondent and she also saw the respondent coming out of the adjoining house of Nityananda where the rest of the murders were committed, she did not mention the name of the respondent as the assailant for a day and a half. The murders were committed in the night of June 13, 1969 and yet she did not come out with the name of the respondent until the morning of June 15, 1969. It is not possible to accept the explanation sought to be given on behalf of the prosecution that she did not disclose the name of the respondent as the assailant earlier than June 15, 1969 on account of fear of the respondent. There could be no question of any fear from the respondent because in the first place, the respondent was not known to be a gangster or a confirmed criminal about whom people would be afraid, secondly, the police had already arrived at the scene and they were stationed in the clubhouse which was just opposite to the house of the witness and thirdly, A.S.I. Madan Das was her nephew and he had come to the village in connection with the case and had also visited her house on June 14, 1969. It is indeed difficult to believe that this witness should not have disclosed the name of the respondent to the police or even to ASI Madan Das and should have waited till the morning of June 15, 1969 for giving out the name of the respondent. This is a very serious infirmity which destroys the credibility of the evidence of this witness. The High Court has also given various other reasons for rejecting her testimony and most of these reasons are, in our opinion, valid and cogent. If the evidence of this witness is rejected as untrustworthy, nothing survives of the prosecution case.
In Kali Ram v. State of H.P., (1973) 2 SCC 808 (Three Judge Bench) observed that a witness professes to know about a gravely incriminating circumstance but keeps silent for over two months before giving a statement, loses most of its value. It was held as under:
14. The case of the prosecution is that the injuries to Dhianu and Nanti deceased were caused by the accused. The accused has, however, denied this allegation. In order to bring the charge home to the accused, the prosecution led evidence on a number of points. The High Court accepted the prosecution allegation in this respect and based its conclusion upon the following three pieces of evidence:
(1) The evidence of Parma Nand that the accused had stayed with him on September 29, 1968 and had on the evening of that day proceeded towards the house of Dhianu deceased after he had been shown the way by Parma Nand.
(2) The confession of the accused contained in letter PD.
(3) The extra judicial confession made by the accused to Sahi Ram incorporated in letter PEEE.
We may first deal with the deposition of Parma Nand (PW 14). The deposition consists of three parts. The first part relates to the stay of the accused with Parma Nand at his shop in Village Paliara on September 28 and 29, 1968 when some fish and liquor are stated to have been taken by the accused and Parma Nand. This part of the deposition relates to an innocuous circumstance and hardly connects the accused with the crime. The second part of the deposition is to the effect that the accused on the evening of September 29, 1968 told Parma Nand that he had to go to the house of Dhianu and that Parma Nand showed at the instance of the accused the way which leads to the house of Dhianu at a distance of three or four miles from the shop of Parma Nand. We find it difficult to accept this part of the deposition of Parma Nand. Parma Nand admits that he came to know of the murder of Dhianu and Nanti about four days after those persons were found to have been murdered. It would, therefore, follow that Parma Nand came to know of the murder of Dhianu and Nanti on or about October 4, 1968. Had the accused left for the house of Dhianu deceased on the evening of September 29 and had Parma Nand PW come to know that Dhianu and Nanti were murdered in their house, this fact must have aroused the suspicion of Parma Nand regarding the complicity of the accused. Parma Nand, however, kept quiet in the matter and did not talk of it. The statement of Parma Nand was recorded by the police on December 11, 1968. If a witness professes to know about a gravely incriminating circumstance against a person accused of the offence of murder and the witness keeps silent for over two months regarding the said incriminating circumstance against the accused, his statement relating to the incriminating circumstance, in the absence of any cogent reason, is bound to lose most of its value. No cogent reason has been shown to us as to why Parma Nand kept quiet for over two months after coming to know of the murder of Dhianu and Nanti about the fact that the accused had left for the house of the deceased shortly before the murder. We are, therefore, not prepared to place any reliance upon the second part of the deposition of Parma Nand. The third part of the deposition of Parma Nand PW pertains to the shout of the accused from outside the shop of Parma Nand at about mid-night hour on the night of occurrence. This part of the deposition has not been accepted by the trial court and the High Court and we find no valid reason to take a different view.
The above principle was followed in Ravi Mandal v. State of Uttarakhand, 2023 SCC OnLine SC 651, Para 23.
The Hon’ble Supreme Court of India in Jagjit Singh v. State of Punjab, (2005) 3 SCC 689 discarded the evidence of a witness as her statement during investigation was recorded with a delay of three days, even though her statement was also subsequently recorded by the Judicial Magistrate subsequently. It was held as under:
30. This has to be viewed in the light of the fact that her statement was recorded by the investigating officer for the first time three days after the occurrence, and her statement was recorded by the Judicial Magistrate six days after the occurrence. The courts below have taken the view that delay in examining her has caused no prejudice to the defence. Counsel for the appellant submitted that this period was utilised by the prosecution for tutoring the witness, and therefore the delay of three days in her examination under Section 161 CrPC is significant. No explanation is forthcoming as to why she was not examined for three days when the investigating officer knew that a statement of her’s had been recorded by the doctor on 30-8-1996. The trial court took the view that since she was under a shock she was not in a position to make a statement and, therefore, her statement was recorded later. This is clearly erroneous because the case of the prosecution is that she regained consciousness on 30-8-1996 and, thereafter, she was fully conscious. The evidence of Dr. Bhupinder Singh, PW 7 who gave a certificate of her fitness to make a statement is also to the same effect. The reasoning of the trial court that the victim PW 6, was under great shock and was not in a position to make the statement, cannot be sustained. Neither the trial court nor the High Court cared to closely examine the evidence on record to find out whether there was any evidence on record to prove that the appellant was known to PW 6 or that PW 6 had any reason to know his name so as to be able to identify him by name. The explanation furnished by PW 6 five years after the occurrence, that she knew the appellant because he happened to be the son of Amar Singh at whose tubewell her grandparents resided, is unacceptable particularly, in view of the fact that there is no evidence to establish that she had ever earlier seen the appellant and in none of the three statements made by her earlier the name of Amar Singh is mentioned. The delay in examining her in the course of investigation also creates a serious doubt in the absence of any explanation for her late examination after three days, when admittedly she was the sole eyewitness who was also injured in the course of the occurrence. We are, therefore, of the view that though she may have witnessed the occurrence, she did not know the appellant by name as she had no opportunity of knowing or seeing him earlier, and that she has involved the appellant at the instance of her father, who was the person who suggested the involvement of the appellant when her statement Ext. PW-6/A was being recorded.
- Witness not disclosing facts at initial stage of inquiry is unreliable:
In Shakun Grover v. Central Bureau of Investigation, 2014 SCC OnLine Del 4221, the Delhi High Court held as under:
35. There is no satisfactory explanation to the obvious question as to why PW-4, who was the only person in the know of what transpired in his room on 27th February 2003, did not utter a word about the conduct of A-2 at the stage of initial inquiry by PW-9. If he did then certainly it was not adverted to by PW-9 in his report and in that event it should have elicited a protest from PW-4. The report submitted by PW-9 makes no mention of A-2 having taken personal interest in ensuring that NET certificate prepared in the name of A-3 be signed by PW-4.
VII. Probative value of such Supplementary Statements – Courts have always looked upon improved / contradictory versions in Supplementary Statements with suspicion:
From the above, it is clear that a witness, who allegedly claims to profess information about a crime and involvement of a particular accused, does not make any disclosure in his initial statements, is unworthy of reliance. Such a witness clearly depicts an unnatural conduct by only introducing alleged facts in supplementary statements and such evidence is likely to be discarded.
- Statements made by the persons about an incident at the earliest point of time are to be given precedence than the one made after a lapse of time:
In Budhan Singh & Ors. Vs. State (Through NCT of Delhi) 2008 (2) JCC 1017, the Delhi High Court held as under:
10. Even otherwise, statements made by the persons about an incident at the earliest point of time are to be given precedence than the one made after a lapse of time. In this case, initial investigation did not reveal the involvement of the petitioners at all. This being the position, FIR lodged at the instance of the wife of the deceased after the lapse of four months should not have been given precedent over the investigation carried out at the initial stage.
- Witness becoming wiser day-by-day and remembering bit-by-bit is an interesting factor to remember, and his supplementary statement is liable to be discarded outrightly:
In Kehar Singh v. State (Delhi Admn.), (1988) 3 SCC 609 (Three Judge Bench), the Hon’ble Supreme Court was considering Appeals directed against the conviction of the three appellants Kehar Singh, Balbir Singh and Satwant Singh under Section 302 read with Section 120-B IPC and other provisions of law.
The case related to a very unfortunate incident where the then Hon’ble Prime Minister Smt. Indira Gandhi was assassinated by persons posted for her security at her residence.
The conviction and sentence of Balbir Singh was set-aside, inter alia, considering that he was sought to be implicated by way of Supplementary Statements.
One of the important pieces of evidence alleged against the said Balbir Singh was that he had returned from his leave and had met Beant Singh (main accused) and Amarjit Singh, as deposed by PW-44 Amarjit Singh.
G. L. Oza, J, while dealing with part of the evidence, noted that the statement of PW-44 Amarjit Singh was recorded on multiple occasions, that is:
| 1st Statement | : | Recorded on 24.11.1984 (25 days after incident) | U/s 161 Cr.P.C. by the Police |
| 2nd Statement | : | Recorded on 19.12.1984 | U/s 161 Cr.P.C. by the Police |
| 3rd Statement | : | Recorded on 21.12.1984 | U/s 164 Cr.P.C. by Magistrate |
The version given by the abovementioned witness by way of supplementary statement was rejected by the Court as unreliable. The delay in recording the statements on two other different occasions led the Court to observe that PW-44 Amarjit Singh was a convenient witness, observing that the witness had become wiser day-by-day and remembered bit-by-bit; when in the first statement, he had not alleged any involvement of Balbir Singh.
The Court noted in Para 70 as under:
70. With this we are now left with the evidence of Amarjit Singh who is an important witness as per the prosecution. It has come on record that his statement during investigation was recorded thrice; twice by police under Section 161 and then under Section 164 CrPC. The first statement is Ex. PW 44 which was recorded on 24-11-1984, after 25 days of the incident and the second statement Ex. PW 44-DB was recorded on 19-12-1984. On 21-12-1984 the third statement Ex. PW 44-A under Section 164 of the Code came to be recorded. In the first statement there is no involvement of Balbir Singh. The second statement according to the witness was recorded at his own instance. He states that it did not occur to him that assassination was the handiwork of Balbir Singh and Kehar Singh. After he had learnt about the firing and death of Smt Indira Gandhi he recalled certain things and went to Shri R.P. Sharma who recorded his statement on 24-11-1984. According to him, he recalled bit by bit and that was the reason, he gave the subsequent two statements. If we carefully peruse these statements it is clear that the entire approach of the High Court appears to be erroneous. Amarjit Singh PW 44 states before the courts as follows:
“In the first week of August 1984 I had a talk with Beant Singh. Then he told me that he would not let Mrs Indira Gandhi unfurl the flag on August 15. Shri Balbir Singh also used to tell me that if he could get a remote control bomb and his children are sent outside India then he also could finish Mrs Indira Gandhi. I used to think that he was angry and I used to tell him that he should not think in these terms. In the third week of October 1984, Balbir Singh told me that Beant Singh and his family have been to the Golden Temple along with Kehar Singh his phoopha. He further told that Beant Singh and Constable Satwant Singh had taken Amrit in Sector 6, R.K. Puram, New Delhi at the instance of Kehar Singh.”
In his first statement PW 44-DA which has been exhibited during his cross-examination admittedly there is no reference to Balbir Singh at all. No reference to Balbir Singh telling the witness that if he could get a remote control bomb and his children are sent outside India, he could also finish Mrs Indira Gandhi. There he has stated:
“In the end of September 1984 SI Balbir Singh met me once in the Prime Minister’s house and told me that Beant Singh wanted to kill the Prime Minister before August 15, he (Beant Singh) agreed to kill her with a grenade and remote control but this task was to be put off because the same could not be arranged. Actual words being ‘In do cheeson ka intezam nahin ho saka isliye baat tal gayi’ ”.
Similarly in his earlier statement Ex. PW 44-DA what this witness said was:
“In the third week of October 1984 Beant Singh SI met me and told me that he had procured one Constable. Actual words being ‘October 1984 ke tisare hafte main Beant Singh mujhe mila usne bataya ki usne ek sipahi pataya hai’ and that now both of them would put an end to Smt Indira Gandhi’s life very soon.”
These portions of the statement which were put and proved from Amarjit Singh as his first statement recorded by the police clearly go to show that he had only alleged these things against Beant Singh. What he did later was to improve upon his statement and introduce Balbir Singh also or substitute Balbir Singh in place of Beant Singh. The only other inference is that he was himself a party to that conspiracy. Otherwise there is no explanation why he should keep on giving statement after statement, that too after 25 days of the incident. The second statement was recorded on December 19 and a third statement on 21-12-1984. It clearly shows that he was a convenient witness available to state whatever was desired from him. That he appears to have become wiser day by day and remembered bit by bit, is certainly interesting to remember.
The Court also held that:
- The witness had made a clear improvement in his version, with first version having nothing against Balbir Singh, whereas, in second statement, he sought to introduce things against him.
- It is well settled that even delay is said to be dangerous and if a person who is an important witness does not open his mouth for a long time his evidence is always looked with suspicion.
- Witness (PW-44) could not be “relied upon” as he “even after 25 days”, in his first version said nothing against Balbir Singh and that he made allegations against Accused after “one more month”.
The relevant portion of Para 71 is as under:
71. It could not be doubted that the two versions given out by this witness are not such which could easily be reconciled. In fact in his first version there is nothing against Balbir Singh. In his second statement he has tried to introduce things against him. This apparently is a clear improvement. It is well settled that even delay is said to be dangerous and if a person who is an important witness does not open his mouth for a long time his evidence is always looked with suspicion but here we have a witness who even after 25 days gave his first statement and said nothing against the present accused and then even waited for one more month and then he suddenly chose to come out with the allegations against this accused. In our opinion, therefore, such a witness could not be relied upon and even the High Court felt that it would not be safe to rely on the testimony of such a witness alone.
In Para 74, the Court held that:
74. … … … … … The statement against Balbir coming for the first time on 21-12-1984 itself in the light of the settled criminal jurisprudence of this country ought to have been rejected outright.
It is respectfully submitted that there has been no change in such “settled criminal jurisprudence of this country” from the year 1988 to date, and when the said jurisprudence was followed in the case relating to the most unfortunate circumstance of assassination of the then Hon’ble Prime Minister, there can be no perceivable reason whatsoever to adopt any other approach in any other matter whatsoever.
- Subsequent allegations by way of Supplementary Statements not sufficient:
In Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293, it was held as under:
21. Insofar as the assertion made by the complainant/prosecutrix, in her first complaint dated 16-2-2007 is concerned, it is apparent, that on the basis thereof, First Information Report No. 47 of 2007 was registered at Police Station Lodhi Colony, New Delhi. In her aforesaid complaint, Priya, the complainant/prosecutrix had alleged that the appellant-accused had called her on her phone at 8.45 p.m. and asked her to meet him at Lodhi Colony, New Delhi. When she reached there, he drove her around in his car. He also offered her a cold drink (Pepsi) containing a poisonous/intoxicating substance. Having consumed the cold drink, she is stated to have felt inebriated, whereupon, he took advantage of her and started misbehaving with her, and also touched her breasts. Insofar as the instant aspect of the matter is concerned, the presence of the complainant/prosecutrix, as well as the appellant-accused, at the alleged place of occurrence (Lodhi Colony, New Delhi), on the night of 15-2-2007 after 8.45 p.m., has been established to be false on the basis of mobile phone call details of the parties concerned. Details in this respect have been summarised in para 9 above. The same are not being repeated for reasons of brevity. The proof of the aforesaid factual matter must be considered to be conclusive for all intents and purposes, specially, in view of the observations made by this Court in Gajraj v. State (NCT of Delhi) [(2011) 10 SCC 675 : (2012) 1 SCC (Cri) 73] wherein it was held as under: (SCC p. 681, para 19)
“19. In the aforesaid sense of the matter, the discrepancy in the statement of Minakshi, PW 23, pointed out by the learned counsel for the appellant-accused, as also, the reasoning rendered by the High Court in the impugned judgment becomes insignificant. We are satisfied, that the process by which the appellant-accused came to be identified during the course of investigation, was legitimate and unassailable. The IMEI number of the handset, from which the appellant-accused was making calls by using a mobile phone (SIM) registered in his name, being evidence of a conclusive nature, cannot be overlooked on the basis of such like minor discrepancies. In fact even a serious discrepancy in oral evidence, would have had to yield to the aforesaid [authentic digital evidence which is a by-product of machine operated electronic record having no manual interference]. For the reasons recorded hereinabove, we find no merit in the first contention advanced at the hands of the learned counsel for the appellant-accused.”
The aforesaid factual conclusion, that the two parties concerned were not present at Lodhi Colony, New Delhi after 8.45 p.m. on 15-2-2007, as has been established on the basis of the investigation carried out by the police, cannot be altered at the culmination of the trial, since the basis of the aforesaid determination is scientific evidence. Neither has the said material been contested by the complainant/prosecutrix. Once it is concluded that the complainant/prosecutrix and the appellant-accused were at different places, far away from one another, and certainly not in Lodhi Colony, New Delhi on the night of 15-2-2007, it is obvious that the allegation made by Priya, the complainant/prosecutrix against Prashant Bharti, the appellant-accused of having outraged her modesty, was false. What stands established now, as has been discussed above, will have to be reaffirmed on the basis of the same evidence at the culmination of the trial. Such being the fact situation, we have no other alternative but to conclude, that the allegations levelled by the complainant/prosecutrix, which culminated in the registration of a first information report at Police Station Lodhi Colony, New Delhi on 16-2-2007, as well as her supplementary statement, would never lead to his conviction.
… …
23.5. Fifthly, even though the complainant/prosecutrix had merely alleged in her complaint dated 16-2-2007 that the accused had outraged her modesty by touching her breasts, she had subsequently through a supplementary statement (made on 21-2-2007), levelled allegations against the accused for the offence of rape.
- Prosecution attempts to create a watertight case through a witness, by improving its case from stage to stage unacceptable:
In Umesh Tukaram Padwal v. State of Maharashtra, (2019) 8 SCC 567 (Three Judge Bench), the Court held as under:
18. PW 10 has deposed that after Accused 1 expressed his willingness to reveal the spot from where the body of the deceased had been disposed, PW 10 prepared the memorandum panchnama at Ext. P-39 recording the disclosure statement of Accused 1 in the presence of two panchas, both of whom signed the statement along with PW 10. One of the panchas was examined as PW 4 to support the aspect of recovery of the dead body. The other pancha was not examined. PW 4 affirmed that the said panchnama contained his signatures. However, he admitted in his cross-examination that he had also visited the police station on 12-7-2002 and 13-7-2002, and further that Accused 1 did not state anything in his presence before the police. Thus, it is clear that the evidence of PW 4 belies the evidence of PW 10 that the disclosure statement of Accused 1 was recorded in the presence of the panchas on 14-7-2002. It seems that the prosecution wants to make their case watertight by taking PW 4’s assistance and bringing him as a witness to the disclosure statement as well. In this regard, the defence is justified in arguing that the prosecution has tried to improve its case from stage to stage by introducing material which was originally absent.
- Witness improving his version from stage to stage unbelievable | Version given earlier to be seen:
In Jaharlal Das v. State of Orissa, (1991) 3 SCC 27, it was held as under:
The important and crucial circumstance heavily relied upon by the prosecution is the alleged recovery of the dead body of the deceased on showing of the accused and the accused pointed the place where the body of the deceased was lying. For this again the prosecution relied on the evidence of PWs 1 and 11. Having carefully gone through the evidence of PW 1 we find that he has improved his version from stage to stage. As already noted both the courts below were not prepared to place any reliance on his evidence regarding the extra-judicial confession about which he made no mention at any earlier stage.
In Digamber Vaishnav v. State of Chhattisgarh, (2019) 4 SCC 522 (Three Judge Bench), it was held as under:
24. It is clear from the testimony of PW 8 that she is not an eyewitness to the incident. She was aged about 9 years at the time of the incident. Her evidence is fraught with inconsistencies. None of the other witnesses have identified the appellants. Therefore, heavy reliance was placed on the testimony of PW 8. She did not tell PW 1, Badridas about the appellants while disclosing about the incident for the first time. This is reflected from the FIR which has been registered against unknown persons. In such circumstances, it is risky to rely on the uncorroborated identification of the appellants at the instance of PW 8, who has not disclosed about the appellants at the first instance before PW 1 Badridas.
- Investigating Officer obliterating the earliest version – demolished the prosecution case and rendered the subsequent version wholly unacceptable:
In Abdul Razak v. State of Karnataka, (2015) 6 SCC 282 (Three Judge Bench), it was held as under:
11. … … That is not all. After the police arrived, PW 1 presents a written complaint about the incident. His statement (fardbeyan) is recorded by the Sub-Inspector in which Basavaraj is said to have died, meaning thereby that Basavaraj was not alive when the police reached the spot. What is amazing is the admission made by PW 19 that the report received by him about the incident was destroyed by him after the fardbeyan of PW 1 was recorded on the spot. This implies that the first version regarding the incident was totally obliterated by the investigating officer and Ext. P-1 recorded in its place. It is difficult to appreciate how PW 19 could have destroyed the original complaint given to him by Hanumantha, PW 1. This implies that the earliest version about the incident was destroyed by PW 19 and a new story stated in the fardbeyan was tailored to suit the prosecution version. This has the effect of completely demolishing the prosecution case and rendering its version wholly unacceptable.
12. The only inference which can, in the circumstances, be drawn is that Basavaraj was done to death and his dead body left at the spot from where it was picked up by the police after they arrived around 10.00 p.m. The complaint presented to the Sub-Inspector perhaps did not say what the police intended to present as its case. The same was, therefore, destroyed and a new version brought in, according to which Basavaraj was shown to be alive when the police reached the spot.
- Falsity introduced by way of Supplementary Statement at the behest of Police to implicate the Accused:
In Deepa Bajwa v. State, 2004 SCC OnLine Del 961, the Delhi High Court held as under:
2. The petitioner prays for quashing the aforesaid F.I.R. mainly on the ground that in the complaint lodged by the complainant on 19th April, 2001, it was nowhere mentioned that the petitioner/accused knew that the complainant belonged to the community of Scheduled Castes or Scheduled Tribes. When no F.I.R. could be registered in view of this deficiency, opinion was taken from the prosecution Branch and thereafter a supplementary statement of the complainant was recorded to the effect that the petitioner knew that the Complainant belonged to the said Caste. Thereafter, on 14th June, 2001, the F.I.R. in question on the basis of complaint dated 19th April, 2001, was registered. The petitioner pleads that since the complaint as lodged by the Complainant did not make out any case under Section 3 of the Act the police misused its powers by recording supplementary statement of the complainant so as to fill up the lacuna in the complaint and thereafter register an F.I.R.
3. The facts relevant for the disposal of this petition, briefly stated, arethat the respondent No. 5/Complainant had allegedly visited the of/ice of the petitioner, who was Cantonment Executive Officer, on 19th April. 2001, along with the Councillor of the area, Shri Chhannu Mal and some others. According to the complaint when Shri Chhannu Mal was introducing the complainant and others to the petitioner, the petitioner called the Complainant ‘Choora, Chamar and Goonda’ and asked him to get out of her office. He then lodged a complaint at Police Station Delhi Cantt under Section 3 of the Act.
4. The status report filed by the respondents shows that the complaint was kept pending as the ingredients of the offence under Section 3 of the Act were not complete. Legal opinion from the prosecution Branch was obtained by the S.H.O. and thereafter the complainant was asked as to whether the petitioner had prior knowledge or not about his caste. After recording a supplementary statement of the complainant, in which he stated that the petitioner had knowledge about his caste, the F.I.R. in question was registered on 14th June, 2001. The affidavit filed by the respondent No. 3 also confirms that the complaint dated 19th April, 2001, made by the Complainant did not disclose the ingredients of Section 3 of the Act and as such clarifications were sought and after receipt of clarifications, the F.I.R. was registered.
5. Learned counsel for the petitioner vehemently argues that the police had no business to fill up the lacunae or gaps in the complaint and then register an F.I.R. against the petitioner after about two months on the basis of the complaint which did not disclose the ingredients of the offence under Section 3 of the Act. It is submitted that the F.I.R. in question is an abuse of the process of law and as such liable to be quashed. Ho relies upon a judgment of this Court in Daya Bhatnagar & Ors. v. State, 109 (2004) Delhi Law Times 915, in which it was categorically held that the accused must have knowledge or awareness that the victim belongs to Scheduled Caste or Scheduled Tribe community and if an accused does not know that the person whom he is insulting, intimidating or humiliating is a member of a Scheduled Caste or Scheduled Tribe, no offence under this Section would be constituted. Learned counsel for the State as well as learned counsel for respondent No. 5 have contended that the registration of the F.I.R. after recording supplementary statement of the Complainant was fully justified and as such there are no good grounds for quashing the F.I.R. as prayed.
6. After considering the submissions made by learned counsel for the parties, this Court is of the considered view that a complaint, on the basis of which the complainant seeks registration of an F.I.R., must disclose essential ingredients of the offence and in case a complaint lacks or is wanting in any of the essential ingredients, the lacuna or deficiency cannot be filled up by obtaining additional complaint or supplementary statement and thereafter proceed to register the F.I.R. If such a course is permitted, it would give undue latitude as well as opportunity to unscrupulous complainants to nail others by hook or by crook in spite of the fact that their initial complaint does not make out the offence complained of. Such a course would be utter abuse of the process of law. First version as disclosed in a complaint is always important for adjudicating as to whether an accused has committed or not an offence. In the complaint dated 19th April, 2001, the Complainant himself alleged that the Councillor Chhannu Mal was introducing him to the petitioner. If that was the case, how could he say later that on that day the petitioner knew that he was a Scheduled Caste. This statement, therefore, was a crude falsity introduced at the behest of the police to implicate the petitioner under Section 3 of the Act. This effort on the part of the police to supply the deficiency and cover up a lacuna in the complaint in view of legal opinion was totally unwarranted and an abuse of the process of law.
- Bail upheld, considering improvement made in statement under Section 164 Cr.P.C.:
In Parminder Kaur v. State, 2016 SCC OnLine Del 4313, Delhi High Court held as under:
6. From the averments made in the FIR it is clear that there is no allegation of rape against the respondent No. 2 and there are subsequent improvements in the form of statement under Section 164 Cr.P.C. which was noted by the learned ASJ.
VIII. Such improvements / contradictions / embellishments made in Supplementary Statements can be considered at initial stage:
In Rihan v. State, 2023 SCC OnLine Del 7338, the Delhi High Court held that though probative value of evidence is a matter of trial, however, the same can be considered in favour of Accused to grant bail. It was held as under:
23. However, the probative value of evidence which has come on record and the credibility of the witnesses will be seen by the trial court at the stage of trial, but at this juncture this Court cannot shut its eyes to the above noted gaps in the evidence which have come on record, which tilts the balance in favour of the petitioner for grant of bail.
In Simranjit Singh Sambhi v. State (NCT of Delhi), 2022 SCC OnLine Del 700, Delhi High Court was pleased to quash an FIR considering embellishments in statement under Section 164 Cr.P.C.. It was held as under:
14. The complainant in the FIR stated that she was given juice by the Petitioner which made her semi-conscious whereas in her Section 164 statement she stated she was given wine by the petitioner. She did not file a complaint and did not get herself medically examined which would have substantiated that she had been given some intoxicating substance. In the FIR, it was stated that on 15.8.2017 when the Petitioner visited her house, her mother was in Punjab attending the funeral/last rites of her brother, whereas in her 164 statement she stated that her mother is bed ridden and unable to walk. She stated in her Section 164 statement that she was divorced and the Petitioner still established relations with her assuring her he would marry her, whereas in the FIR there was no such allegation. Further, in the FIR, it is stated that when she went the Petitioner’s house on 7.10.2020, the petitioner’s brother-in-law and uncle chased her out of the house and that whereas in her 164 statement she states that when she was turned out of the Petitioner’s house and that the petitioner’s uncle and brother-in-law told her that if she wanted to marry the Petitioner, she would have to establish sexual relations with the uncle and brother-in-law. The 164 statement also states that the Petitioner threatened to kill the complainant on 13.02.2021, which is in contrast with the FIR which records no such allegation.
… … …
20. Section 90 IPC stipulates that consent given under fear or misconception cannot be said to be consent. In this context, it becomes relevant to factor in the aspect that the prosecutrix was in a long-term relationship spanning a period of four years and the FIR was only filed after the said relationship ended on hostile terms. Therefore, it cannot be said that the consent so accorded for establishment of physical realationship was predicated upon misconception of fear. The chargesheet mentions that the complainant refused to get medically examined and did not initially cooperate with the investigation. The material on record so far establishes that there are substantial embellishments in the Section 164 statement that are not mentioned in the FIR. Apart from that, there are notable discrepancies in each of the successive complaints of the petitioner, that make it seem that a private dispute is being aggravated for ulterior purposes and the process of the law is being used as a tool for settling personal scores.
21. Taking into account the material contradictions and keeping in mind substantial improvements made by the complainant at every stage, this Court of the opinion that it is fit for this Court to exercise its power under Section 482 CrPC to quash the present FIR. Resultantly, FIR No. 143/2021 filed at PS Paschim Vihar for offences under Section 376(2)n, 354, 354-A IPC and all proceedings emanating therefrom is hereby quashed.
IX. Conclusion:
From the above, it is clear that a witness to a crime is expected to disclose the involvement of an Accused and the incriminating circumstances thereof at the earliest and that supplementary statements made by the witnesses to implicate additional accused persons / introduce additional incriminating circumstances is liable to be rejected, as the same are not reliable and trustworthy.
Any omission on the part of the witness to disclose essential facts affects the probabilities of the case under Section 11 of the Evidence Act and the same is fatal to the prosecution case.
A witness professes to know about a gravely incriminating circumstance but keeps silent for long before giving a statement, looses most of its value.
It is an unnatural human nature to be becoming wiser day-by-day and remembering bit-by-bit and in light of the settled criminal jurisprudence of this country, such supplementary statements ought to be rejected outright.
[1] In context of administrative / executive orders, the Hon’ble Supreme Court of India in OPTO Circuits (India) Ltd. v. Axis Bank, (2021) 6 SCC 707 has approved the principle that Orders are not like old wine becoming better as they grow older.
[2] Section 160 / 161 Cr.P.C. reads as under:
160. Police officer’s power to require attendance of witnesses.—(1) Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required:
Provided that …
(2) …
161. Examination of witnesses by police.—(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.
(2) …
(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records:
Provided that …
Provided further that …
[3] Section 50 PMLA, 2002 reads as under:
50. Powers of authorities regarding summons, production of documents and to give evidence, etc.—
(1) …
(2) The Director, Additional Director, Joint Director, Deputy Director or Assistant Director shall have power to summon any person whose attendance he considers necessary whether to give evidence or to produce any records during the course of any investigation or proceeding under this Act.
(3) All the persons so summoned shall be bound to attend in person or through authorised agents, as such officer may direct, and shall be bound to state the truth upon any subject respecting which they are examined or make statements, and produce such documents as may be required.
Brilliant work Sir!