ORDER NO.
434 COLLECTION OF ORAL EVIDENCE
CHAPTER – 23
Collection of Oral Evidence
427-1. The investigating officer is empowered under Section 161 CrPC to examine orally
any person (including a suspect) who is likely to be acquainted with the facts and
circumstances of the case. He may reduce to writing the statement of each such
person, and when he does so, he shall make a separate record of each such
person whose statement he records. The person so examined shall be bound to
answer all questions relating to such case put to him, other than questions the
answers to which would incriminate him to a criminal charge or to a penalty or
forfeiture.
2. In order to examine a witness, the investigating officer should, as far as possible,
contact him at his place, but may, if necessary, require the attendance before
himself, of any person being in the limits of his own or adjoining police station. If a
person so called intentionally fails to attend in spite of a written order served on
him, he is liable to be prosecuted under section 174 IPC. However, under proviso to
section 160 Cr.P.C., no male person under the age 15 years or woman shall be
required to attend as a witness at any place other than the place in which such
male person or woman resides.
3. When a police officer finds it necessary for the purpose of any police investigation
to require any employee of any essential services such as railways, roadways,
water supply and electricity, medical, civil supplies to leave his duties or otherwise
to detain such employee from his duties, he shall give previous notice of the fact to
the official concerned in order that the latter may take steps to replace the
employee, and shall, at the same time, take all necessary measures to ensure that
the object of the investigation is not thereby defeated.
4. The following classes of public servants of the essential services actually on duty at
the time, shall not be required to leave their duty until they have been replaced:
A. Railways: (A) Station Masters and Assistant Station Masters (B) Cabin and lever-
men (C) Signalers (D) Points men and Key men (E) Patrolmen (F) Individual gang
men posted to show caution signals at weak bridges or other points requiring
cautious working. (G) Shunting staff (H) Watchmen (I) Gatemen in-charge of level
crossings (J) The actual running staff of train (Guards and Engine drivers) (K) More
than half a gang of engineering gang men.
B. Roadways: Drivers and Conductors.
C. In respect of other services like Water Works and Sewerage, Electricity, Major
Projects, those employees whose absence would jeopardize public safety, health,
supply of essential commodities or result in damage to the installations.
Admission of police officers to visit jails on duty
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ORDER NO. 434 COLLECTION OF ORAL EVIDENCE
428-1. The rules regulating admission of Police Officers to visit jails lay down that;
A. Any police officer of a rank not lower than an Inspector shall, for any purpose
connected with the discharge of his duty as such police officer be permitted to enter
[Link]. No. 1200
and 1201 Home (Pri. the jail at any time between unlocking in the morning and lock up in the evening.
B) dated 19-6-1961.
B. He will be permitted to interview the prisoners only on a letter of authority to the Jail
Superintendent from SP or superior Officers or District Magistrate. He may take
other Police Officers and witnesses or informers with him for assistance.
C. Police officers of lower rank than an Inspector in uniform are permitted to enter the
jail for the purpose of recognizing old offenders.
D. Any interview permitted as above shall take place in the presence of the Jailer or
other proper officer of the jail, who shall, if required to do so, keep at such a
distance that he may not hear the conversation that takes place.
E. The Superintendent of the Jail shall, produce any prisoner in his charge whom the
police are authorized to interview and shall afford every reasonable facility for this
purpose.
2. In case of remand of prisoners, no police officer shall be permitted, except under
the authority and in the presence of a Magistrate, to enter a Sub-Jail /Jail for the
purpose of interviewing or communicating with them.
Recording of statements of witnesses
429-1. Though a Police Officer is not bound to record the statement of witnesses as he
examines them during the course of investigation, in terms of section 161(3) of
CrPC it is desirable to reduce to writing the statements of all witnesses who are
acquainted with the facts and circumstances of the case on the spot and who may
have to be cited in the court as witnesses. The statement of each witness should
be recorded separately, in direct form and as far as possible in his own language
and with the full version of what he states. Section 173(5) of CrPC lays down a
statutory obligation on the prosecution to furnish to the accused, copies of
statements recorded under 161(3) of CrPC of all persons whom the Prosecution
proposes to examine as its witnesses, before the commencement of inquiry. Hence
sections 161(3) and 173(5) CrPC clearly indicate that separate statements of all
persons whom the prosecution proposes to examine as its witnesses should be
recorded and copies thereof must be furnished to the accused before the
commencement of the inquiry. These are mandatory provisions for compliance.
2. The case diary is intended for recording such particulars as, the action taken by the
investigating officer, the places where he went, the people he visited and the things
he saw. The detailed statements of witnesses examined need not be written in the
case diary Part I. It is a privileged document and is covered by sub-section (2) of
Section 172 of CrPC. But statements of witnesses if recorded in the case diary are
covered by sections 161 and 162 of Cr.P.C. and the privilege assigned to the case
diary does not extend to the statements of the witnesses recorded therein. Hence,
the diary should be written in two distinct parts in the prescribed forms, one for
recording the particulars mentioned in section 172 (1) of Cr.P.C. and the other for
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ORDER NO. 434 COLLECTION OF ORAL EVIDENCE
recording the statements under section 161 of Cr.P.C which should be in a
separate part and serially numbered. Details of case diary are discussed in
Chapter 27.
3. It is important and necessary for an investigating officer to record the statement of
an accused person, more so, if it contains lengthy details in a complicated case, so
that these details may not be forgotten or overlooked in the course of enquiries for
their verification. The statement may sometimes disclose his line of defence and
may also at times indicate sources from which independent evidence may be
available and provide clues for further investigation. Verification of all details given
by the accused is a vital exercise in investigation and should be diligently done and
entered in case diary from day to day.
Dying declaration
430-1. The statement given by a dying person is called dying declaration. Whether the
statement is given expecting death or not, it is valid. Out of the entire statement
the following only are relevant.
A. That portion showing to the cause of person’s death or
B. To the circumstances of the transaction resulting in that person’s death.
2. The declaration may be recorded by any person, but it should preferably be
recorded by a Magistrate, if readily available. Where this is not practicable, the
doctor or if he is not available the investigating officer may record it, preferably in
the presence of a witness. Even if the declaration is made to a police officer, it is
admissible in evidence and its use is not barred by section 162 of the Cr.P.C. Even
if it has been made orally in the presence of any person, it may be proved in court
by the oral evidence of that person. The declaration becomes admissible, only if
the declarant subsequently dies. If he survives, it will be useful, if made before a
Magistrate or any one other than a police officer, to corroborate his oral evidence as
a witness in court. If it was made before a police officer, it will be treated as a
statement u/s 161 Cr.P.C.
3. The declaration must, as far as possible, be complete by itself. The person making
the declaration must be speaking from personal knowledge of the facts. If reduced
to writing, the declaration should be in the form of questions and answers and in
the very words of the declarant. The signature of the declarant should invariably be
taken on the dying declaration wherever possible. If the declarant is an illiterate or
is incapacitated from signing for any reason, his thumb impression should be taken.
When a declarant dies while giving a statement, the declaration is valid even
though he does not put his signature or thumb impression. A note should be made
in the dying declaration giving reasons why the signature of the declarant was not
taken.
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ORDER NO. 434 COLLECTION OF ORAL EVIDENCE
4. When the declarant, being in a serious condition and unable to speak, makes signs
by hand or head, the person recording the dying declaration must record the
precise nature of the signs which the declarant made.
5. Before taking down the declaration the persons recording the dying declaration
should also ask the declarant whether he is mentally capable of making a
declaration. He should obtain whenever possible a certificate from the Medical
Officer as to the mental condition of the declarant.
6. Incomplete dying declarations are not by themselves inadmissible in law. Though a
dying declaration is incomplete by reason of the deceased not being able to
answer further questions in his condition then, yet the statement to that extent is
admissible provided it is proved he has given it consciously and the statement is
not vague.
7. An FIR can also be a dying declaration.
Recording of statements of witnesses and confessions of accused by a Magistrate
431-1. In important cases, witnesses may be produced before Judicial Magistrate;
competent to record such statements under section 164 Cr.P.C. Such statements
can be used to contradict the statements given by the same person during the
course of enquiry or trial. If he retracts later he can be prosecuted for giving false
evidence.
2. If an accused person, on being arrested, expresses his willingness to make a
confession, his confession may be got recorded under section 164 of CrPC by the
competent Magistrate. As far as possible he must be taken before a magistrate
other than the one who has jurisdiction to try the case.
Confessional statements made to the police
432. Though confession made to police officers are inadmissible, under section 27 of
Indian Evidence Act, if a statement is given by an accused to a police officer while
in custody and that statement reveals the discovery of any material fact and in
consequence of that statement if that material fact is discovered, that statement is
admissible to the extent of such discovery. However under A.P. Control of
Organised Act 2001 and Prevention of Terrorism Act (POTA) 2002, confessional
statements made to police officer not below the rank of the Superintendent of
Police and recorded by such police officer either in writing or on any mechanical
devices like cassettes, tapes or sound tracks from which sounds or images can be
[Link].115,
admissible in the trial of such person or co-accused, abettor or conspirator provided
Home (Police-F)
Dept, dt.25-4-
that, the co-accused, abettor or conspirator is charged and tried in the same case
2002. together with the accused. The confession should be recorded in a free
atmosphere in the same language in which the person is examined and as
narrated by him. Such confessions should be recorded only by the competent and
authorized police officers and should be sent forthwith to the Chief Metropolitan
Magistrate or Chief Judicial Magistrate having jurisdiction over the area in which
such confession has been recorded. The person from whom a confession has
been recorded shall also be produced before Chief Judicial Magistrate/Chief
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ORDER NO. 434 COLLECTION OF ORAL EVIDENCE
Metropolitan Magistrate along with the original statement of confession written or
recorded on mechanical device without unreasonable delay. The following points
should be observed by the concerned police officers in recording confession.
Do’s and Don’ts while recording confession of accused U/s 18 of the A.P. Control of
Organised Crime Act, 2001and Prevention of Terrorism Act 2002.
1. Disclose your identity as Superintendent of Police to the accused before starting the
recording of the confession.
2. Note time of commencement and time of conclusion of recording the confession, in
the proceedings itself.
3. Elicit full name with surname and also alias names if any of the accused.
4. Elicit the identity of the accused i.e. his father’s name, age and address of the
accused.
5. Inform the accused before hand that he is not bound by law to make any confession.
6. Inform the accused that in case he gives a confession, it may be sued in evidence
against him in any trial or proceed in a court of law.
7. Elicit from the accused whether he proposes to make confession on any threat or
coercion or influence or inducement or promise from any police officer or any
other person.
8. Before starting recording of confession, record a finding in your own handwriting that
the accused proposed to make confession voluntarily.
9. Record the proceedings in the same language in which the accused is examined
and as narrated by him.
10. After recording the confession, obtain either signature or thumb impression of the
accused at the end of the confessional statement.
11. Append a certificate at the end to the affect that you recorded the confession after
personally satisfying yourself of the voluntary character nature of the same.
12. Put your signature under the certificate with date and time.
13. Send the recorded confession forthwith to the Chief Metropolitan Magistrate/Chief
Judicial Magistrate along with the accused person without any reasonable delay.
14. Record the confession i) in writing, or ii) on any mechanical devices like cassettes
(video or audio), tapes (video or audio) or sound tracks.
15. Do not get the confession recorded in writing by your subordinates though in your
presence; it has to be recorded by you in person individually.
16. Recording confession by way of typing is not provided; and so do not employ
typewriters or computer printers etc.
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ORDER NO. 434 COLLECTION OF ORAL EVIDENCE
17. In case of recording confession by videography, see that the entire proceedings of
confession from the beginning till the end are recorded continuously without any
break i.e. without stopping the video camera in the middle and restarting
subsequently.
18. See that the video is taken covering the entire surroundings inside the place of
recording the confession.
19. In case the confession is recorded on audiocassette or tape or sound track, ensure
that the entire proceedings are recorded continuously without any break and
without omitting any portion.
20. Ensure that video or audiocassette or tape or sound track is not edited or that there
is no possibility of editing the same, least it would give rise to suspicion that
some inconvenient portions are omitted or edited.
21. In case of recording confession on mechanical devises like cassettes, tapes or
sound tracks, enclose to it the certificate in writing that you were personally
satisfied of the voluntary character of such confession, putting your signature
underneath it with date and time.
Panchanamas of property recovered as a result of the confession made to the police
433-1. As soon as it appears to the investigating officer that an accused is likely to make a
confession leading to the discovery of a fact, the investigating officer should secure
the presence of two respectable and independent witnesses of the locality and in
their presence record the confessional statement himself, obtaining the signatures
of the witnesses on the record. Stock witnesses or those who figure as panch
witnesses in previous cases should not be taken. If it is not possible to secure the
presence of witnesses, the investigating officer should himself record the
confessional statement and afterwards when he is able to secure the presence of
witnesses, he should read over the statement to the accused before the witnesses
and, if it is agreed to by the accused as correct, note this fact on the record and
obtain the signatures of the witnesses on it. The statement of the accused should
be in the first person and in the very words of the accused. When a discovery is
made as the result of the statement of the accused, a separate panchanama
should be drawn up for the discovery. Giving information and recovery that follows
it are two different transactions and a separate panchanama should be recorded
for each of them. The information given by an accused person should not be mixed
up in the panchanama drawn up for the recovery made in consequence of such
information. It is the information given by an accused person that determines his
knowledge about that fact discovered and that has a direct bearing on his guilt.
2. When one of several accused persons who have taken part in an act, for example,
the burial of property at a certain place, offers to point out the place and the
property is found in consequence, his confessional statement is relevant against
him under section 27 of the Indian Evidence Act. But if other accused persons
suspected to have taken part in burying the property at the place also give the
same information subsequently the discovery cannot be attributed to second
person. These confessional statements cannot be said to have led to the discovery
of the property which has already been discovered and are not, therefore, relevant
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ORDER NO. 434 COLLECTION OF ORAL EVIDENCE
under that section. Though there is nothing objectionable in the investigating officer
trying to see for his moral satisfaction whether such persons point out the same
place as the one previously shown by one of them, no attempt should be made to
utilise that evidence against subsequent persons. If two or more accused give
statements under section 27 of Evidence Act, simultaneously, it is inadmissible, as it
cannot be attributed to any single person.
3. Where the place of recovery is a public place accessible to all and sundry a
discovery from such a place cannot entirely be attributed to the exclusive
knowledge of the accused and therefore much reliance cannot be placed.
4. The accused must be in custody of Police for a confession to come under purview
of section 27 of Evidence Act. Even a man released on bail and giving information
leading to discovery of a fact can be deemed to be in Police custody within
meaning of section 27. Arrest and custody are not synonymous. A person can be
in custody without being formally arrested.
Tendering of pardon
434-1. In cases where it is otherwise impossible to establish the guilt of the accused from
other evidence, conditional pardon can be tendered to an accomplice in a crime
with a view to securing the evidence of such a person and bringing home the guilt
of the other accused.
2. Tendering of pardon can be given in the following cases
A. All offences triable by sessions court
B. Offences under Prevention of Corruption Act
C. Offences which are punishable with 7 years or more
3. Tender of pardon is given where the investigation has to establish the guilt of the
accused by independent evidence. In such cases participant who played a minor
role with offence is taken into confidence with a view to prove the case against the
other accused. The accused to whom the tender of pardon is granted is an
accomplice witness
4. The pardon tendered to a person under section 306/307 of Cr.P.C., as already
stated, is conditional that he should make a true and full disclosure of the whole of
the circumstances within his knowledge relating to the offence. If such person
either willfully conceals anything essential or gives false evidence and thus does
not comply with the conditions on which the pardon was tendered, he may be tried
for the offence in respect of which the pardon was tendered later.
5. During the course of investigation the chief judicial magistrate and during the
course of enquiry or trial the presiding magistrate or judge are competent to
grant pardon.
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