EVIDENTIARY VALUE OF FIR

DATE:- 17.03.2016

EVIDENTIARY VALUE OF FIR (31st Update)

The police can make three different kinds of statements. The first kind of statement is one which can be recorded as an FIR, the second kind of statement is one which can be recorded by the police during the investigation, and third kind of statement is any kind of statement which would not fall under any of the two categories mentioned above. A substantive evidence is evidence of facts stated, however, these statements which are made to the police cannot be substantive evidence statements. The reason behind this is that it is not tested by cross examination, it is not given in oath and it is not provided during the trial.[1] If the human being making such a statement to the police officer comes to the court during trial and makes the statement corroboration may take place as per the evidence Act.[2]

The FIR has certain evidentiary value, and this value is perhaps much greater than the evidentiary value which would exist with any statement which is made to any police officer during any point of time of the investigation. FIR is definitely not substantive, but, it cannot be doubted that it is an important piece of evidence and is an essential tool to corroborate the informant under §157 of the Indian Evidence Act. Alternatively, it may also be used to contradict him under §145 of the same Act. This is however, only possible if the informant is the witness when the trial is taking place.[3] 

The Indian Evidence Act implies that when there is a need for corroboration of testimonies of the witness (any kind of witness) the section that gets activated is §157 which says that for there to be corroboration of any form the earlier statement must relate to the same fact or the same time, it must also be before an authority which has the legal competence to conduct investigation of the particular fact which is being discussed, and needs to be proven in the court.[4]  Another section which comes into play is §145 of the Indian Evidence Act which states that a witness can be cross examined w.r.t statements which have been made by the witness and he must have either written the statement himself or it must have been written down by somebody else. This is the case for contradiction of the witness and therefore writing is important in this case.[5] To prove that their case is credible and believable the prosecution must show that there was proper recording of the FIR. This can help to stop the court from drawing an inference which is adverse. The accused should try to cross examine the person who made the FIR (the informant) and show that it is not credible or believable and this is the job of a good defense lawyer. The FIR is a kind of evidence whose contradictory value is only for the person who has lodged the FIR (the informant) and it cannot be used to contradict the statement made by any other person, witness[6]. It necessarily has to be the person who is informing the police about the crime at the first instance.[7] The accused can utilize the FIR to make the person lodging the FIR look less credible and therefore make the value of the FIR as a piece of evidence goes down.[8]. However this is only applicable to the informant and not to any other person. Even if the informant is  contradicted and the FIR loses some credibility the other witness are enough for conviction of the accused, that is, the value of the FIR is not that substantial.[9] Sometimes the maker of the FIR is the accused himself. In this case, it cannot be used as any kind of evidence against him. It has been held by the Supreme Court of India that the FIR is not a substantive piece of evidence and the corroboration of the maker under Section 161 of the Indian Evidence Act or Contradiction under the same act is the only thing possible. The court went on to hold that if the maker is also the accused even this is not possible. The Supreme Court, on another occasion in the case of Ram Chander v. State of Haryana[10], has held that the contents of the FIR can only be used for contradiction and corroboration of the maker and not any other eye witness. In general, an FIR’s content is solely for the purpose of contradiction and corroborations. However, certain situations may arise when the contents of an FIR can be used for other purposes. For instance, when essential facts are omitted which end up affecting the probability of the case (relevant under §11 of IEA) in judging whether or not the prosecution case is true.[11] If certain information report has been suppressed then the prosecution must explain and be responsible for suppression of this kind. And if the court of law gets to know this then they can definitely be led to assume that there is certain prejudice to the accused and §114 plays out.[12] The question that is often asked is why the FIR can’t be used for contradiction or corroboration of the accused. This is because the accused can’t be up as a prosecution witness and it is very rare that he would want to be up as a defense witness. The second question that arises is if the FIR is of a confessional nature, then is cannot be proved against him because of §25 of the Indian Evidence Act. This section says that any kind of statement made to a police officer cannot be used against the accused person. However, there are certain situations in which the FIR made by the accused can become relevant. First, when the FIR lodged by him could be relevant under the 8th section of the IE Act as his conduct. Second, If the FIR is non confessional than it can be admissible as admission[13] Third, if there is discovery of fact, it can be used against him.[14] If the informant ends up dying then the FIR can definitely be used as substantive evidence. But, the condition is that it must in some way relate to the death of informant or somehow related to some form of evidence having a link to the death of the informant. This is derived from §32 of the Indian Evidence Act[15]  It was held in the case of Kapoor Singh v. Emperorthat the FIR which has been lodged by a deceased  person can be admissible as evidence if relating to circumstances surrounding his death. [16] The courts of this land have also said that an FIR can be a dying declaration if the informant dies of his injuries after lodging the same. [17] This is important to note because had he died of reasons other than the injuries (for example, a natural death) then it cannot be considered a dying declaration.[18] However, when the FIR clearly implicates the person who is the accused and contains the details of the incident this is not considered to be a dying declaration[19] It is also essential that there be certainty around the death of the individual and not just disappearance. An FIR by a deceased is not substantial and shouldn’t have any bearing on the case if the contents aren’t proved. It has to be corroborated and proved for there to be any value of the same in the case.[20] If the informant died during the trial, and the prosecution starts to treat the FIR as a dying declaration without ascertaining the questions as to his death, then is cannot be a dying declaration. This was iterated in Sukhar v. State of U.P.[21]

Following are some Cases:-

• In the case of Maniram v. State of MP.[22], the dying declaration was recorded but the doctor did not attest to the consciousness of the deceased. Since the thumb signature of the deceased was also not taken there was doubt on the credibility of this FIR.
•  K.N. Chandrasekharan Pillai, R.V. Kelkar’s Criminal Procedure,( 5th ed 2001),119

• Hasib v. State of Bihar, (1972) 4 SCC 773
• Nisar Ali v. State of U.P., 1957 CrLJ 550 SC
•  Damodar Prasad v. State of Maharashtra ,AIR 1972 SC 622
•  Shanker v. State of U.P., AIR 1975 SC 757]
• Dharma Rama Bhagare v. The State of Maharashtra, (1973) 1 SCC 537.
• In this case, the contents of the FIR were at variance with the testimony of other witnesses in Court. The submission of the appellant before the Supreme Court was that because of this the prosecution evidence must be considered unreliable and hence, cannot form a safe basis for holding the appellant guilty.

[1] (1981) 3 SCC 191.[2] Ram Kumar Pandey v/s State of M.P ,(1975)3SCC 815[3] (A.I.R. 1967 Cal. 478).[4] Nisar Ali v. State of U.P. 1957 550 SC[5] Agnou Naagesia v. State of Bihar,1966 CrLJ 100 SC][6] Damodar Prasad v. State of U.P,. AIR 1975 SC 757[7] Kapoor Singh v. Emperor ,(AIR 1930 Lahore 450)[8] Munna Raja v. State of M.P., (AIR 1976 SC 2199) [9] Umrao v. State of M.P., AIR 1961 MP 45[10] Pancham Yadawa v. State of U.P., 1994 CrLJ 848 (All)[11] E.J.Goud & others v. State of A.P., 2004 (2) ALD (CRL)241 (AP)[12] Sukhar v. State of U.P., (1999) 9 SCC 507[22] Maniram v. State of M.P., AIR 1994 SC 840