In Sushant -Disha murder case this question has arisen.

Lets see first provision of Section 164 of Cr.PC

Section 164 in The Code Of Criminal Procedure, 1973

164. Recording of confessions and statements.

(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial: Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.

 (2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.

(3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody.

(4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:-” I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.

(Signed) A. B. Magistrate”.

(5) Any statement (other than a confession) made under sub- section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.

(6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried.


In Narayanaswami v. Emperor (1939) 66 I.A. 66,  it was observed that, It is a well accepted rule regarding the use of confessions and admissions that these must either be accepted as a whole or  rejected as a whole and that the court is not  competent to  accept  only the inculpatory part  while  rejecting the exculpatory part as inherently incredible. Emperor v. Balmukand (1930) I.L.R. 52 All. 1011, followed

Palvinder Kaur vs The State of Punjab 1952 AIR 354 it was observed that , “ The statement read as a whole is of an exculpatory character. It does not suggest or prove the commission of any offence under the Indian Penal

 Full Bench of the Allahabad High Court in Emperor v. Balmakund  (1), with which observations we fully concur. The confession there comprised of two elements, (a) an account of how the accused killed the women, and  (b) an account of his reasons for doing so, the former element being inculpatory and the latter exculpatory and the question referred to the Full Bench was: Can the court if it is of opinion that the inculpatory part commends belief and the exculpatory part is inherently incredible, act upon the former and refuse to act upon the latter ? The answer -to the reference was that where there is no other evidence to show affirmatively that any portion of the exculpatory element in the confession is false, the court must accept or reject the confession as a whole and cannot accept only the inculpatory element while rejecting the exculpatory element as inherently incredible.

Confession and Statement under S/164 Cr.P.C

The term “statement” is not defined anywhere in the Act. However, it has got wide connotation. Section itself contemplates that statement which is either written by the witness himself or reduced to writing by someone else and so, the statement recorded under section 164 of the Code is previous statement of the witness.

In case of Patiram V/s.State of Maharashtra 2003 Cri.L.J. 4718, it is specifically observed that – “The statement recorded under section 164 of the code are part and parcel of the case diary of investigation. Even in the charge sheet there should be mention of recording of statement by the magistrate”.

Relevance of Statement under S 164

Section 164 of the code does not provide for recording of any statement of an accused person other than a confession. This section specifically provides record of two clauses of a thing i.e. (1) the statement of the witnesses and (2) confession of a person accused of an offence. The word statement in sub-clause (1) has been used in wider sense and may include statement either of a person or even of a different person and they would have recorded in course of the Chapter XII if they were intended to be a statement made during the course of investigation. The statements which were made by the persons at identification parade are nothing but the statement under section 164 of the Code. A statement made under section 164 of the code is not inadmissible in he evidence and may be used o corroborate or contradict a statement made in the Court in the manner provided under section 157 and 145 of the Evidence Act. The statement made under this section cannot be used as a substantive piece of evidence. But it can be used for the purpose of corroboration. It can be used to cross-examine the persons who made it to show that the evidence of the witness is false but that does not establish that what he stated out of court under this section is true. A statement made by a witness under section 164 of the Code can be used for the purpose of cross-examining him and discrediting his evidence in the session’s court.

The Need for Recording Statement U/S 164 of Code  The object of recording of statements of witnesses under section 164 of the Code is two fold; (1) to deter witnesses from changing their versions subsequently;

 (2) to get over the immunity from the prosecution in regard to information given by the witnesses under section 162 of the code;

(3) Recording statement of witnesses under section 164 of the code is to minimize the chances of changing the versions by the witnesses at the trial under the fear of being involved in perjury.

In case of Guruvind palli Anna Rao – of A.P. reported in 2003 Cri. L.J. 3253, it has been specifically observed that  “Statement of witness recorded under section 164 of the code is a public document which does not require any formal proof

Who is qualified person for recording the statement under section 164 of the code?

 The person qualified for the statement is the person who is capable of giving useful information relating to an offence. It may be an eyewitness, closely associated with the victim or the accused. In the section 164 there is no specific embargo that only particular set of persons can record their statement. The basic important thing is that such person should be capable of giving useful information relating to an offence.

Latest is Sheena Bohra murder case where Shenna disappeared and on the basis of Drivers statement under Section 164 Indrani Mukherjee was arrested for charge of murder.

Circumstantial Evidence and Homicide:

Kamalabai Tukaram Gharat vs The State of Maharashtra

Motive :-

When the case is based on circumstantial evidence, the motive plays a vital role. Generally, motive remains in the mind of the culprit, so it is difficult to prove it. The motive can be proved by circumstances of the case and the acts of the culprit


Prem Singh vs State Govt Of NCT of Delhi

To examine the guilt of the appellant, we must appreciate the evidence adduced by the prosecution. The present case being a case of circumstantial evidence, it is a well settled law that where there is no direct evidence against the accused and the prosecution rests its case on circumstantial evidence; the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. In other words, there must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused. All the links in the chain of circumstances must be complete and should be proved through cogent evidence.

Conclusive Chain of Evidence:

In order to substantiate his argument that in cases based on circumstantial evidence, all the circumstances must be conclusive and the chain of evidence be so complete so as to leave no reasonable ground which leads to the innocence of the accused. Hanumant Govind Nargundkar v. State of Madhya Pradesh reported in AIR 1952 SC 343, wherein the Apex Court held as under: “10. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.”

In Naseem Ahmed v. Delhi Administration reported in (1974) 3 SCC 668, wherein it was observed as under: “10. This is a case of circumstantial evidence and it is therefore necessary to find whether the circumstances on which prosecution relies are capable of supporting the sole inference that the appellant is guilty of the crime of which he is charged. The circumstances, in the first place, have to be established by the prosecution by clear and cogent evidence and those circumstances must not be consistent with the innocence of the accused. For determining whether the circumstances established on the evidence raise but one inference consistent with the guilt of the accused, regard must be had to the totality of the circumstances. Individual circumstances considered in isolation and divorced from the context of the over-all picture emerging from a consideration of the diverse circumstances and their conjoint effect may by themselves appear innocuous. It is only when the various circumstances are considered conjointly that it becomes possible to understand and appreciate their true effect.”

Supreme Court in Aftab Ahmad Anasari vs State Of Uttaranchal on 12 January, 2010

The law relating to circumstantial evidence is well settled. In dealing with circumstantial evidence, there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion howsoever strong cannot be allowed to take place of proof and, therefore, the Court has to judge watchfully and ensure that the conjectures and suspicions do not take place of legal proof. However, it is no derogation of evidence to say that it is circumstantial. Human agency may be faulty in expressing picturization of actual incident but the circumstances cannot fail. Therefore, many a times, it is aptly said that “men may tell lies, but circumstances do not”. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact must be proved individually and only thereafter the Court should consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of the guilt. If the combined effect of all the facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts, by itself/themselves, is/are not decisive. The circumstances proved should be such as to exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution case succeeds in a case of circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever extravagant and fanciful it might be. There must be a chain of evidence so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused. Where the various links in a chain are in themselves complete, then a false plea or a false defense may be called into aid only to lend assurance to the Court. If the circumstances proved are consistent with the innocence of the accused, then the accused is entitled to the benefit of doubt. However, in applying this principle, distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to the proof of basic or primary facts, the Court has to judge the evidence and decide whether that evidence proves a particular fact or not and if that fact is proved, the question arises whether that fact leads to the inference of guilt of the accused person or not. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should be no missing links in the case, yet it is not essential that every one of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences or presumptions, the Court must have regard to the common course of natural events, and to human conduct and their relations to the facts of the particular case.

Fair Trial is Fundamental Right

Param Pal Singh Gandhi v. The State of Bihar it was held that “The Constitution of India, under article 21, guarantees a right to fair trial to an accused. A fair trial is impossible if there is no fair investigation. In order to be a fair investigation, the investigation must be conducted thoroughly, without bias or prejudice, without any ulterior motive and every fact, surfacing during the course of investigation, which may have a bearing on the outcome of the investigation and, eventually, on the trial, must be recorded contemporaneously by the investigating officer at the time of investigation. A manipulated investigation or an investigation, which is motivated, cannot lead to a fair trial.”

Opinion of Expert :

In state of Hariyana Vs Bhagirath Supreme Court held:

The opinion given by a medical witness need not be the last word on the subject. Such opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.

Eye Witness vs Medical Report

In State Of U.P vs Hari Chand on 29 April, 2009 Supreme Court observed that

12. There was no reason of the High Court to discard the credible, cogent and trustworthy evidence of the eye witnesses. This was certainly not a case where medical evidence was at a variance with the ocular evidence. The evidence of the eye witnesses regarding injuries caused by the firearms is amply corroborated by the evidence of the doctor who found four firearms wounds. In any event unless the oral evidence is totally irreconcilable with the medical evidence it has primacy.

13. Coming to the plea that the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord
undue primacy to the hypothetical answers of medical witnesses to exclude the eye-witnesses’ account which had to be tested independently and not treated as the “variable” keeping the medical evidence as the “constant”.

14. It is trite that where the eye-witnesses’ account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eye witnesses’ account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts; the `credit’ of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.

Conflicting Medical Opinion with eye witness

C.K. Ravendram V. State of Kerala – When the doctor itself has not been able to give a definite opinion as to the injuries found on the dead body whether could be ante-mortem or post-mortem, there was not an iota of material from which the High Court could have jumped to the aforesaid conclusion. And the Supreme Court therefore, has no hesitation to hold that the deceased met a homicidal death is wholly erroneous. Contradictory to this judgement, the opinion was expressed in Mohan V. State In this case, the dead body recovered from tree-Medical report revealing that blood was oozing from nose and mouth – Conviction confirmed-Taking the medical evidence, is that the deceased had died of asphyxia of hyoid bone is possible and in this case the hyoid bone was in fact broken. He has denied the suggestion that protruding of tongue was only due to hanging. Courts have already referred to the report of the Professor of Forensic Medicine, Kilpauk Medical College, on the basis of which Medical Officer had give, his final opinion.

In Ashim Das V. State of Assam case, the Court found evidence of the eyewitnesses did not corroborate the medical evidence. Doctor has clearly stated that there was fracture of the frontal bone of the skull towards left side, but not a single eyewitness stated that any accused person gave any blow on the head of the deceased. The trial Court rejected the evidence of Doctor on the ground that though on 31.8.1973 he conducted the post-mortem and kept his findings in a rough paper, the post-mortem report was signed on 27.11.1973 i.e. about three months after the occurrence. On the ground he rejected the medical evidence and accepted the ocular evidence this Court finds it difficult to accept the said ground of the trial Court as the Dr. Howque, has given reason for the delay by stating that there were many cases for entry in the register, which were recorded in order of preference.

In Mahendra Singh Dhaiya V. State (C.B.I.) Where the reports of the experts are contradictory and having infirmities and discrepancies in it, these reports cannot be accepted on its face value, merely because the experts were foreigners having no motive to give false reports and to depose against the accused falsely. Merely because the reports emanate from a certain doctor or expert of a foreign country, that by itself is no guarantee that the reports are meticulous and the court is bound to accept and rely upon them blindly

Conclusion: In Sushant -Disha murder case this question has arisen and considering above ratio decidendi it is possible for CBI to file FIR on basis of statements of eye witnesses under Section 164 and there are also stare decisis stating when opinion of medical expert is over ruled.

Shruti Desai

4th October,2020