(1)The admissibility of statements made out of Court is sometimes misunderstood. There are two general rules:-(a)A statement, oral or written, made by a person not examined as a witness is inadmissible to prove the truth of the facts stated, unless the statement is covered by Section 32 or 33 of the Evidence Act.(b)A statement, oral or written, made by a witness out of Court is not substantive evidence, but may be used within the limits of Section 175 ibid to corroborate what the witness has said in Court or it may be used under Section 155 (3) ibid to contradict him.(2)Evidence may be given that a person not examined as a witness was heard to make a statement is true or false, just as evidence may be given that he was seen to do a certain thing, for the witness is deposing to what he himself heard or saw, but evidence that somebody else said something is not direct evidence that what he said was true and is ordinarily inadmissible to prove the truth of what he said-vide Section 60 of the Evidence Act. Chapter XLI of the Code provides for certain exceptions.(3)The rule that a witness may be corroborated by a previous statement under Section 157 of the Evidence Act is qualified by Section 162 (1) of the Code which renders inadmissible and statement made to a police officer in the course of an investigation, except to contradict the witness in accordance with the provisions of that sub-section, and many inadmissible statements are recorded in some Courts when the investigating officer examined, statement that offend against either Section 162 (1) of the Code or Section 60 of the Evidence Act. Section 162 (1) of the Code does not apply to dying declarations or statements covered by Section 27 of the Evidence Act-vide Section 162 (2) of the Code. A statement made to the police before the investigation has begun-it is immaterial whether it is called a first information report or not-is not barred by Section 162 (1) of the Code, but ordinarily it is not substantive evidence and can at most be used to corroborate or contradict the person who , made it if he is examined as a witness.(4)(a)Relevant statements made by an accused out of Court are admissible in evidence unless they are confessional statements barred by Section 24 or 25 or 26 of the Evidence Act or were made to a police officer in the course of the investigation and are therefore barred by Section 162 (1) of the Code. These sections, however, are qualified by Section 27 of the Evidence Act which provides that when any fact is deposed to as discovered in consequence of information received from an accused, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.(b)It is not always that a suspected or accused person gives information or makes the discovery. It sometimes happens that he is asked to produce articles of which information has been given by someone else, and produces them with such a statement as "Here they are." The circumstances which explain the statement must be ascertained from the witnesses and recorded. The investigation officer should be asked to explain what prompted him to go to such and such a man and make the enquiries which led to the discovery, and what his enquiries were. In house-breaking cases there may be a number of informations and discoveries, and in each case the record should show clearly what was the information leading to a particular discovery and whether it was the first news the police had of that part of the property s whereabouts. To make all these points clear the record of evidence should bring out as clearly and fully as possible :-(i)when the statement (and there may be several) giving the information was made, and where, and in whose presence;(ii)when the discovery was made, and where, and in whose presence;(iii)by which accused, if there are several;(iv)and through what circumstances the statements or discovery came to be made.(c)It is essential to have it on record how the property was produced and to describe where it was produced from. It is not enough to say boldly that "the accused produced the property" when in fact he produced it with difficulty from a well-concealed hiding-place in his roof or on the other hand produced it readily from bedside the wall of an open courtyard where it lay visible to any chance passer-by.(d)With this clearness of introductory and surrounding circumstance must go a full record of the statement made. The words admissible under Section 27 of the Evidence Act must be recorded in full and not cut down to a meaningless fragment. An investigating officer is required by Police Regulation 760 to make at the time a memorandum of the exact words used, and should be required when giving evidence to refer to the memorandum to refresh his memory under Section 159 of the Evidence Act. He should also be asked to explain when and how he made it. It appears that he has no authority to ask witnesses to attest such a document.(e)Presiding officers must bear in mind that the responsibility for obtaining in full and clear record of these points is on them and not on counsel, and they should be vigilant to see that all necessary details and explanation are brought on record so as to give a clear and unbroken account of what happened.
