It is very well settled that Crime is against the society as a whole and state prosecutes the accused on behalf of the victim/society. But there might be some peculiar situations where the person who lodges the First Information Report with the police (he may be merely a witness who saw the incident or he may be victim himself or in some cases he may be the person who neither suffered the incident nor saw it but just on the basis of hearsay information goes and lodges the report; in the end all are said to be complainant/informant) dies before he can actually prove it before the court during the evidence stage. What happens to the fate of such cases when the actual torch bearer, who brought the crime into the notice of the authorities died before he can actually prove one of the most essential document in a criminal case i.e., An FIR, on the basis of which police undertakes the investigation.
So the issues that arises for consideration are:
- Whether non-proving of the FIR leads to a situation of acquittal or Courts can still convict the accused on the basis of other material available on record?
- Whether only complainant/informant can prove the FIR or Investigation Officer can also do the same and if yes, then under what circumstances?
What is an FIR
FIR (First information Report) as the name suggests is the first information provided regarding commission of a cognizable offence (an offence in which the police may arrest a person without a warrant) by the victim himself or anyone on behalf of the victim., orally or in writing which is then recorded by the officer in charge of a Police Station. Such information can also be given via telephone, letter or an email. If the informant so desires, he can also file an E-FIR on the online portal of the concerned State. The Criminal Procedure Code 1973, however, does not provide any definition for the term. It only lays down the manner in the FIR has to be recorded[i]. The object of registering a FIR is nothing but to simply set the investigative machinery rolling.
Evidentiary Value of an FIR
It is a settled position of law that FIR is not a substantive piece of evidence. It can only be used as corroborative evidence or to check the creditworthiness of the informant or the witness. The corroborative value of F.I.R substantially declines if there’s an unexplained delay in filing of FIR, for the simple reason that a delay maybe interpreted as an afterthought and it puts the Courts on guard to look for possibilities of an ill motive or concoction of facts[ii].
FIR can’t 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.”
It was held in Pandurang Chandrakant Mhatre v State of Maharashtra[iii], 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.
So 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.
If Complainant/Informant dies without proving the FIR
In Kishan Chand Mangal v State Of Rajasthan[iv], it was held that FIR cannot be used as substantive evidence nor the contents of the report can be said to furnish testimony against the accused, if such an FIR is not be covered by any of the clauses of Section 32[v] and 33[vi] of the Evidence Act and would not be admissible as substantive evidence. If by the time the case comes up for trial, and the complainant is dead, then in the absence of the evidence of the complainant, the Court even on the basis of evidence of independent witnesses if they corroborate with the story lodged by the complainant and prove the crime committed can rely on them and convict the accused. Further the court held that there is no law that the FIR cannot be taken into consideration on the death of Informant. The case will have to be proved on the basis of evidence collected by the Prosecution during the course of investigation and FIR is no evidence in the case, it is only a piece of information with the police records with which the system comes into motions and investigation is started.
In E.J.Goud & others v State of A.P.[vii], it was stated that FIR is only used for corroboration or contradiction if the complainant is examined. In a case where the first informant died before he could depose in the court, the purpose of corroborating or contradicting its contents by the person, would not be possible. In view of this, the accused could not cross examine the informant and in absence of such the other pieces of evidence which are produced in the court can be looked into. As the FIR is not a substantial piece of evidence, it should not have any effect on the prosecution case it its contents are not proved by the person who gave it due to his death.
In the case of Hakirat Singh v State of Punjab[viii], the Supreme Court held that non-examination of the complainant on account of his death could not be fatal on its own to the prosecution case and it will depend on the facts of each case. If the prosecution story as revealed by the witnesses in the court is directly contradictory to the contents of FIR, it may have one effect and on the other hand if the contents of FIR are in conformity with the evidence during the trial, it may have all together a different effect.
So answer to the first issue is that since an FIR is not a substantive piece of evidence it is not of much importance during trial. Neither proving of it solely leads to conviction nor non-proving of the same results in acquittal. In case the complainant dies before proving the same the help of testimony of other witnesses and evidence on record available can be taken to bring home the guilt of the accused.
When FIR can be treated as Substantial Piece of Evidence and When Investigation Officer can prove the Contents of FIR
There is an exception to the above mentioned scenario. FIR is considered a substantial piece of evidence where the informant dies and the facts mentioned in the FIR has direct nexus with the death of the informant. In such cases FIR is treated as a dying declaration, if it fulfils the criteria as a valid declaration under Section 32 of Evidence Act.
Supreme Court decision in Damodar PrasadvState of U.P[ix]., where it was explained that, if the informant dies, FIR can be unquestionably, used as a substantial piece of evidence, only with the pre-requisite condition that, ‘death of informant’ must have nexus with the ‘FIR’ or somehow must have some link with any evidence regarding FIR, and the contents of FIR must be proved, but if the death was natural, then the FIR cannot be admissible in evidence.
So answer to the issue two is also affirmative. In cases where FIR satisfies the definition of dying declaration it becomes substantive piece of evidence and the Investigation officer can also prove the same in the absence of complainant. So final conclusion is that death of complainant/informant is not necessarily fatal to the case of prosecution. It all depends on the facts and circumstances of the case in hand and the evidence available on record.
[i] https://indiankanoon.org/doc/1980578/
[ii] Arpen Joseph v/s State of Kerala (1973) 3 SCC 114
[iii] CRIMINAL APPEAL NO. 986 OF 2007
[iv] 1982 AIR 1511
[v] https://indiankanoon.org/doc/1959734/
[vi] https://indiankanoon.org/doc/800773/
[vii] 2004 (2) ALD (CRL)241 (AP)
[viii] AIR 1997 SC 323