Criminal Procedure Code - Evidentiary value of FIR

Evidentiary value of a First Information Report
The statements made to the police are if three categories- a) A statement which has been recorded as an First Information Report ( herein after referred to as FIR) b) statement recorded by the police in the course of investigation c)a statement recorded by the police but not falling under the above (a) and (b) category.

None of the above statements can be considered as substantive evidence, that is to say, as evidence of facts stated therein. Because it is not made during trial, it is not given on oath, nor is it tested by cross- examination. If the person making any such statement to the police subsequently appears and gives evidence in court at the time of trial, his former statement could , however be used to corroborate or to contradict his testimony according to the provisions of the Evidence Act, 1872.

Section 157 of the Evidence Act is as follows:
“In order to corroborate the testimony of a witness, any former statement made by such a witness relating to the same fact, at or about the time when the offence took place, or before any authority legally competent to investigate the fact may be proved.”

Further, Section 145 of the Evidence Act provides:

“A witness may be crossed-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

These normal rules of making previous statements have been substantially modified in respect of statements falling under category (b) above.

Further, it may be noted that if any statement made to a police amounts to a confession, such a confession cannot be proved against a person accused of any offence. However, this bar on proof of confession made to a police officer is partially lifted by Section 27 of the Evidence Act which provides:

“… When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”

The FIR is not substantive evidence, but it can be used to corroborate the informant under Section 157 of the Evidence Act, or to contradict him under Section 145 of the Act, if the informant is called as a witness at the time of trial. Obviously, the FIR cannot be used for the purposes of corroborating or contradicting any witness other than the one lodging the FIR.

The FIR can have better corroborative value if it is recorded before there is time and opportunity to embellish or before the informant’s memory fails. Undue or unreasonable delay in lodging the FIR therefore, inevitably gives rise to suspicion which puts the court on guard to look for the possible motive and the explanation and consider its effect on the trustworthiness or otherwise of the prosecution version. The fact that the FIR does not contain the names of the accused or of the eyewitnesses, is normally an important circumstance, but the omission loses its significance if the FIR is from a person other than an eyewitness.

If the FIR is given to the police by the accused himself, it cannot possibly be used either for corroboration or contradiction because the accused cannot be a prosecution witness, and he would very rarely offer himself to be a defense witness under section 315 of the code. Moreover, if the FIR is of a confessional nature it cannot be proved against the accused informant, because according to Section 25 of the Evidence Act, no confession made to a police officer can be proved as against a person accused of any offence. But it might become relevant under section 8 of the Evidence Act as to his conduct. If FIR given by thee accused person is non- confessional, it may be admissible in evidence against the accused as an admission under section 21 of the Evidence Act, or again, as showing his conduct under section 8 of the Evidence Act.

Though, generally speaking the content of an FIR can be used only to contradict or corroborate the maker thereof, there may be cases where the content becomes relevant and can be put to some other use also. Omission of important facts affecting the probabilities of the case, are relevant in judging the veracity of the prosecution case.

The Supreme Court has observed on the said subject matter, stating that “the first information report gives information of the commission of a cognizable crime. It may be made by the complainant or by any other person knowing about the commission of such offence. It is intended to set the criminal law in motion. Any information relating to the commission of a cognizable offence is required to be reduced to writing by the officer in charge of the police station which has to be signed by the person giving it and the substance thereof is required to be entered into a book kept by such officer in such form as the State Government may prescribe. It cannot be used as evidence against the person making it, if in case, he himself is accused in the matter, neither to corroborate or contradict other witnesses. It is not the requirement of law that the minutest details be recorded in the Fir lodged immediately after the occurrence. The fact of the state of mental agony of the person making who generally is the victim himself , If not dead, or the relations or associates of the deceased victim apparent under the shock of the occurrence reported has always to be kept in mind.”

The FIR is the first version of the incident as received by the police. The statements in the FIR must naturally get their due weight. An FIR is not a substantive piece of evidence. The Court has to consider other evidence for deciding whether a case should stand or fall. An FIR, being not a substantive evidence, it can be used as a previous statement for the purposes of either corroborating its makers or for contradicting him. The statement of a victim of rape in cross- examination which was not there in the FIR could not be used for contradicting her.

FIR is not an encyclopedia. It is only to set the law in motion. It need not elaborate but should contain necessary allegations to constitute cognizable offences. As per section 154 of the Criminal Procedure Code, stating the use of FIR, “a FIR is not a substantial piece of evidence. It can only be used for corroborating or contradicting its maker. It cannot be used to corroborate or contradict other witnesses…” Further," corroboration of its maker is permissible, but the first information report cannot be used as substantive evidence or corroborating a statement of third party…”The fact that a minute details are not mentioned should not be taken to mean the non- existence of the fact stated. An FIR was made by close relatives of the deceased. Its reliability was not allowed to be doubted on the ground that it was highly improbable that a close relative would leave the victim in a hospital and would himself go to the police station, particularly so when other relatives had also arrived at the hospital. There was no delay in recording the FIR and sending the challanto the court. Absence of the names of the accused in the inquest report was of no value because the investigating officer and the officer conducting inquest were not questioned on that point.

It was held in Pandurang Chandrakant Mhatre v. State of Maharashtra, that it is fairly well settled that first information report is not a substantive piece of evidence and it can be used only to discredit the testimony of the maker thereof and it cannot be utilised for contradicting or discrediting the testimony of other witnesses. Although first information report is not expected to be encyclopaedia of events, but an information to the police to be “first information report” under Section 154(1) must contain some essential and relevant details of the incident. A cryptic information about commission of a cognizable offence irrespective of the nature and details of such information may not be treated as an FIR. An FIR recorded without any loss of time is likely to be free from embroideries, exaggerations and without anybody intermeddling with it and polluting and adulterating the same with lies. The purpose of, FIR is to obtain the earliest account of a cognizable offence, before there is an opportunity for the circumstances to be forgotten and embellished. It is well settled that FIR is not a substantive piece of evidence and can be used to corroborate or contradict the statement of the maker thereof. It is also equally established that trustworthiness of the prosecution story can also be judged from the FIR. Besides first information report is relevant as it may be a part of the res gestae.

For the purpose of summoning someone mentioned in a FIR but has not been charge sheeted, the FIR can be taken into consideration because it is evidence at that stage. Where an FIR is registered on the basis of a written complaint submitted to the police and there was no mention of the presence of some persons as eye- witnesses in it, it was held that the presence of those eye-witnesses was rightly disbelieved.

As already said, the FIR is not substantive evidence; however its importance as conveying the earliest information regarding the occurrence of a crime cannot be disputed. Moreover, it can be used to corroborate the informant under Section 157 of Indian Evidence Act, 1872, or contradict the witness under Section 145 of the same Act if the informant is called as a witness in the trial.

Following circumstances have been identified as the uses of FIR, which are non-confessional in nature, for evidentiary purposes:
1. For corroboration purposes: It cannot be ignored altogether and can be used to corroborate the statement of the eyewitnesses.
2. For contradicting the evidence of person giving the information.
3. For proving as an admission against the informer.
4. For refreshing informer’s memory.
5. For impeaching the credit of an informer.
6. For proving informer’s conduct.
7. For establishing identity of accused, witnesses & for fixing spot time as relevant facts under Section 9, the Indian Evidence Act, 1872

Moreover, FIR can even become substantial evidence in following circumstances:
1. During declaration when a person deposing about the cause of his death had died (that is, a dying declaration). In such case FIR will become admissible under Section 32(1) of the Indian Evidence Act, 1872.

2. When the injuries are being caused in the presence of Station House officer in a police station and the injured makes a statement to the SHO saying that accused was injuring him.

3. When the informer who has written the FIR or read it, fails to recall memory those facts but is, sure that the facts were correctly represented in FIR at the time he wrote it or read it.

Case Study : FIR as substantive evidence
Machchi Singh v. State of Punjab,
CITATION: AIR 1983 SC 957:1983 Cr LJ 1457

Facts:
A feud between two families has resulted in tragic consequences. Seventeen lives were lost in the course of a series of five incidents which occurred in quick succession in five different villages, situated in the vicinity of each other, in Punjab, on the night between August 12 and August 13, 1977. The seventeen persons who lost their lives and the three who sustained injuries included men, women and children related to one Amar Singh and his sister PiaroBai. In this connection one Machhi Singh and his eleven companions, close relatives and associates were prosecuted in five sessions cases, each pertaining to the concerned village in which the killings took place. Machhi Singh was the common accused at each trial. The composition of his co- accused differed number-wise and identity-wise from trial to trial. At the conclusion of the series of trials, the accused found guilty were convicted under appropriate provisions. Four of them were awarded death sentence, whereas sentence of life imprisonment was imposed on nine of them. They were also convicted for different offences and appropriate punishment was inflicted on each of them in that behalf. The order of conviction and sentence gave rise to five murder references and fourteen appeals by the convicts before the High Court of Punjab and Haryana. Having lost their appeals and the death sentences having been con-firmed, the appellants have come in appeal by way of special leave.

Issues:
(a) What normal guidelines are to be followed so as to identify the "rarest of rare cases" formula for imposing death sentence, as spelled out in Bachan Singh v. State of Punjab, [1980] 2 SCR 864;

(b) Reliability of eye witnesses to a crime under light shed by the lantern in a village to identify connect an accused to the crime;

(c) invocation of the doctrine of benefit of doubt; and

(d) the effect of non-summoning the magistrate for recording Dying declaration.

Judgment On Issue:
The order of conviction (passed by the Sessions Court and affirmed by the High Court) is inter-alia based on the dying declaration of Mukhtiar Singh. He was fired at and injured soon after midnight in the early morning of August.

He was removed to hospital on that very day. His police statement (which has been subsequently treated as a dying declaration) was recorded on the 16th i.e. three days after the assault. He died on the 18th, two days later. The evidence shows that he was in fit condition to make a statement and his statement was truly and faithfully recorded. His statement has been considered to be genuine and true by the Sessions Court and the High Court. It is true that the dying declaration has not been recorded by a magistrate. But then the evidence shows that Mukhtiar Singh was making good recovery and having regard to the condition of his health, no danger to his life was apprehended. It was in this situation that a magistrate was not summoned. Thus, no fault can be legitimately found on this score. Besides, the only question of importance now is as regards the creditworthiness of the statement which has been recorded. Since this statement has been found to be genuine and true nothing can detract from its value. The evidence provided by the dying declaration is by itself good enough to support the order of conviction. But this is not all. Also available is the evidence of Ujagar Singh and his daughter-in-law, Munibai. The evidence of these two witnesses lends full corroboration to the dying declaration of the victim, and has been rightly relied upon by the Sessions Court and the High Court. There is no reason to view the evidence doubtfully. The presence of these two witnesses in the household was natural. Their evidence shows that on hearing the report of gun they had concealed themselves behind a herd of cattle and had witnessed the incident from there. The Supreme Court had no reason to disagree with the view of the Sessions Court and the High Court that their evidence is reliable. There is no substance in the argument that the culprits could not have been identified as the light shed by the lantern was not adequate to enable identification. The finding of guilt is thus fully supported by evidence. The Supreme Court accordingly confirmed the same unhesitatingly.

End-Notes
# KantilalShivabhaiThakkar v. State of Gujrat, 1990 Cri LJ 2500
# Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119
# BijoySingh v. State of Bihar, AIR 2002 SC 1949
# Kalyan v. State of U.P, (2001) 9 SCC 632
# KanikLalthakur v. State of Bihar, 2003 CrJL 375 (Pat)
# Utpal Das v. State of W.B., AIR 2010 Sc 1894
# Baldev Sings vs. State of Punjab – (1990) 4 SCC 692 ; State of Gujarat vs. Anirudhsing – (1997) 6 SCC 514.
# State of M.P. vs. Surbhan – AIR 1996 SC 3345.
# Dharmendra Singh v. State of U.P, 1998 Cr.LJ 3889
# Hem Raj v. Raja Ram, AIR 2004 SC 1489
# (2009) 10 SCC 773
# Gulshan Kumar v. State, ILR (1993) 2 Del 168
# Sivrani v. Suryananrain, 1994 CrLJ 2026 (All.)
# BhimappaJinnappaNaganur v. State of Karnataka, AIR 1993 SC 1469
# Anonymous, “Feature: First Information Report”,
# Anonymous, “Feature: First Information Report”,
# Lalaram, (1953) MB 343; Machchi Singh v. State of Punjab, AIR 1983 SC 957:1983 Cr LJ 1457

Written By: Sparsh Prasad
Email: sprshprsd@legalserviceindia.com