Read Time: 14 minutes

Synopsis

The Supreme Court has said that a statement under Section 164 CrPC, although not a substantive piece of evidence, not only meets the test of relevancy but can also be used for contradiction and corroboration since it serves a special purpose in a criminal investigation and carries a greater amount of credibility as it is recorded by a judicial magistrate and not by the investigating officer.

A bench of Justices Bela M Trivedi and Satish Chandra Sharma said that a statement under Section 164 CrPC cannot be discarded lightly or on a mere statement of the witness that it was not recorded correctly.

"For, a judicial satisfaction of the magistrate, to the effect that the statement being recorded is the correct version of the facts stated by the witness, forms part of every such statement and a higher burden must be placed upon the witness to retract from the same. To permit retraction by a witness from a signed statement recorded before the magistrate on flimsy grounds or on mere assertions would effectively negate the difference between a statement recorded by the police officer and that recorded by the judicial magistrate," the bench said.

The court upheld the conviction and life sentence awarded by the trial court in Garhwal and the Uttarakhand High Court to appellants Vijaya Singh and his mother for the murder of his pregnant wife, Devaki, by burning her to death on September 14, 2021, rejecting the retractions by two witnesses, Saroj and Preeti, sisters of Vijaya, from their statements recorded by the judicial magistrate under Section 164 CrPC.

The bench pointed out that a statement under Section 164 CrPC is not subjected to the constraints attached to a statement under Section 161 CrPC, and the rigor of Section 162 CrPC does not apply to a statement under Section 164 CrPC.

"Therefore, it must be considered on a better footing. However, relevancy, admissibility, and reliability are distinct concepts in the realm of the law of evidence. Thus, the weight to be attached to such a statement (reliability thereof) is to be determined by the court on a case-to-case basis and the same would depend to some extent upon whether the witness has remained true to the statement or has resiled from it, but it would not be a conclusive factor," the bench said.

For, the court said, even if a witness has retracted from a statement, such retraction could be a result of manipulation, and the court has to examine the circumstances in which the statement was recorded, the reasons stated by the witness for retracting it, etc. Ultimately, what counts is whether the court believes a statement to be true, and the ultimate test of reliability happens during the trial upon a calculated balancing of conflicting versions in light of the other evidence on record, it added.

In the case, the court noted, the two sisters recorded their statements after the passage of 25 days, a considerable time after the incident, and these could not be termed as hasty statements as there was sufficient cooling period for the witnesses to think over and contemplate the consequences of their statements.

The court rejected a suggestion by the appellants that the sisters were threatened by the investigating officer. The sisters had recorded their statements about a quarrel between their mother and the deceased just before her death.

In their other submission, the appellants claimed the death was suicidal, not homicidal.

The court, however, said it was difficult to believe that the deceased managed to procure two cans of kerosene (5 liters each) on her own for committing suicide within a time bracket of two hours.

"It is equally difficult to believe that the deceased poured almost nine liters of kerosene on herself, put herself on fire, and kept on burning till her body suffered 100% burns, without the appellants getting a whisper about the same despite being present in the same house. If it was indeed a case of self-immolation, the appellants must have done something to save her and her body would not have suffered 100% burns. This fact assumes greater gravity when it is seen that the room was not bolted from inside and was open for access. Thus, the conduct of the appellants, previous to and at the time of the incident, pointed in an incriminating direction," the bench said.

Furthermore, as per the testimonies of prosecution witnesses, no smell of kerosene could be detected at the place of occurrence or on the body of the deceased, which was not consistent with the allegation of self-immolation using an enormous quantity of kerosene, the bench said.

The court also pointed out that the appellants could not explain the presence of fresh injury and abrasion marks on their faces at the time of their arrest, indicating physical resistance from the deceased when she was being set ablaze.

The bench also noted the subsequent conduct of the appellants was suspicious and did not exonerate them in any manner.

"That the appellants chose to remain silent in their house for over two hours, despite witnessing that the deceased had completely succumbed to burn injuries, goes on to show a completely unnatural conduct and points in the direction of their guilt," the bench said.

Instead of taking measures to seek legal or medical assistance without loss of time, the appellants were actually tampering with the scene of the crime, the court said.

"If water was indeed poured at the time of burning, the deceased ought not to have suffered 100% burns from top to bottom, and the act of pouring the water later on the quilt clearly amounts to manipulation of evidence," the bench said.

The court thus held that the circumstantial evidence available on record appeared to be consistent and left little scope for the innocence of the appellants.

"Once the entire evidence led by the prosecution is examined collectively and comprehensively, the only possibility that emerges is of the guilt of the appellants," the bench said, also referring to the testimony of a doctor who said that it was not possible for the body to sustain 100% burns in the case of suicide or self-immolation.

Dismissing the appeal, the bench said, "We are of the considered view that the trial court and High Court have correctly appreciated the evidence on record. We are unable to find any infirmity in the findings of the courts below and the impugned order is sustainable in the eyes of law. In the absence of a finding of illegality or perversity or impossibility of the impugned findings, consistent views taken by two courts cannot be disturbed on mere conjectures or surmises."

Case Title: Vijaya Singh & Anr Vs State of Uttarakhand