Here is Part 2 of the conversation between Advocate M Salahudeen and our Editor Suresh Unnithan. In this part the Public Prosecutor elaborates the role of the Witness, Investigating Officer and Prosecutor in the criminal justice system
How important is a witness in criminal trials and conviction of the accused? There are cases of witnesses turning hostile during the trials. Does that affect delivering justice in any way?
A witness is a person who witnesses any act or series of acts or a scene taking place. As per section 118 of the Indian Evidence Act, a competent witness is one who has the capacity and ability to understand the questions put to him by the court. The court primarily rely on the deposition of the witness.
Regarding hostile witness; in fact the expression “hostile witness” does not find a place in the Indian Evidence Act. In a recent case (Malti Sahu and Another v. Rahul and Another) the Supreme Court has observed evidence of a hostile witness can be considered to the extent, it supports the case of the prosecution. In fact “witnesses are the eyes and ears of justice”. But witnesses turning hostile is a common phenomenon in the criminal justice system.
In a criminal trial what is the status of statements made under CrPC sections 161 and 164?
The statements recorded by the investigating officer under section 161 of Code of Criminal Procedure (CrPC) is not evidence for prosecution. They can be used by the defence for contradicting the prosecution witnesses. In Indresh Kumar v. State of Uttar Pradesh and Another the supreme court had observed that statements made to Police under Section 161 of the Code of Criminal Procedure (CrPC) may not be admissible in evidence.
Similarly the deposition made before a magistrate under CrPC 164 also not sacrosanct and can be denied by the witness during the course of trial. In a recent judgement the Madras high Court has observed that statement recorded under Section 164 of the Code of Criminal Procedure is not substantive evidence and it can be used to corroborate the statement of a witness and it can be used to contradict a witness. Only the statement made by the witness in the court is taken as substantive evidence. But depositions made under 164 can be used for corroboration.
How critical is the role of investigating officers in criminal trials?
The primary duty of an investigating officer is to gather evidence relating to the crime, prepare a flawless report and submit it to the court. The investigating officer is a material witness because he investigates the matters, collects material evidence and records the statement of the witnesses. The Investigating Officer has to place his case truthfully before the Court as it is. The role of the investigating officer is critically important in the criminal justice system. In fact, the responsibility of the investigator does not culminate with submission of evidence and report to the court. He has to be with the Court throughout the trail, until the court pronounces the verdict.
Kindly explain the role of public prosecutor in the criminal justice system.
As I said earlier, a public prosecutor is for the public. Public prosecutors are public authorities who function on behalf of civic society and in the interest of the criminal justice system. Above all we all are agents of Justice. The job of the prosecutor is to reopen the report and evidence submitted in the court by the investigators. Regarding the trial of a case; the prosecutor, before commencement of the trial, makes the witness understand the details of evidence available and the report by the investigating officer submitted to the court investigators. Our prime responsibility is to help the Court deliver justice.
Could you elaborate a little on your court experience as a public prosecutor?
For the past five years I am a public prosecutor and till date, as a prosecutor handle thirty 302 (murder) cases. out of the thirty in 29 cases the accused were convicted and one case is under appeal process. Normally before starting the trail I summon the investigation officer for discussions. A detailed discussion of the case with the investigating officer will provide certain necessary points and leads that could make the trial process more effective. I also insist on the presence of the investigating officer in the court during the trial proceedings to make the trail watertight. The higher courts have many times urged for the presence of the investigating officer during the trial process so that the prosecutor can consult him if needed. But many of the investigating officers are reluctant to be present and the prosecutors seldom insist on their presence in court.
