The Investigating Officer should not misuse the power to record additional statements of witnesses to falsely implicate innocent persons or exculpate accused persons.

1. - The question raised in this bail application requires serious consideration by this Court. The question is under what circumstances a second statement/ additional statement of witness should be recorded by the Investigating Officer. In the present case, the prosecution case is that at midnight, about 11.30 p.m. intervening 1st-2nd November, 1994, 6-7 miscreants entered the house of the complainant with covered faces. The wife of Babulal, namely, Smt. Sohan Dei was feeding her minor child. Babulal raised alarm seeing the miscreants and he was dragged out by them. Thereupon, Babulal's wife Sohan Dei cried for help, which attracted the complainant-Phool Singh (Babulal's elder brother) and his wife-Shiv Devi. Some neighbours also ran towards the house. One of the miscreants made a gun fire towards Babulal, which hit at his chest and ultimately he succumbed to the injuries. The miscreants then, ran away.

2. Thus, as per FIR the miscreants were having covered faces and they could not be identified.

3. Thereafter, the Investigating Officer recorded statements of the witnesses under section 161 Cr.P.C. All the eye witnesses were consistent in their statements that the miscreants were having covered faces and they could not be identified. The statements of Sohan Dei and Shiv Devi were also to the same effect.

4. Then, for the reasons best known to the Investigating Officer, additional statement of Sohan Dei and Shiv Devi were recorded by him on 22.12.94 i.e. after 50 days or so of the occurrence, in which, the petitioners were named to be amongst the miscreants. On the basis of these statements, their statements were also got recorded under section 164 Cr.P.C. by a Magistrate.

5. Mr. Gupta, appearing for the accused applicants, seriously contended that there was no occasion for the Investigating Officer to record additional statements of the witnesses Sohan Dei and Shiv Devi, as their earlier statements recorded by him were quite clear leaving no ambiguity. Mr. Gupta, though, does not dispute the power of the I.O. to record an additional statement of a witness, provided there was any ambiguity in his/her earlier statements, requiring clarification or if any additional fact is disclosed by him/her which could not be stated earlier. But, according to him, such power should not be allowed to be mis-used by an I.O. either to falsely inculpate an innocent person in the crime or to exculpate any accused, who was named as an accused earlier. It was also contended that if such power is mis-used by the I.O. for an oblique motive, it will destroy the confidence of the public in the process of justice.

6. The above factual position was not disputed by Mr. N.L. Pareek, appearing for the State. However, his contention is that the I.O has power to record additional statement of a witness and the petitioners have been named to be participants in the commission of the crime.

7. I have given my careful consideration to the above submissions. Investigation is the foundation in the process of criminal justice. To maintain general faith of the society in the succes of criminal justice, it is essential that its foundation should not be defective and it should be clean. The investigation work is a pious work to be done by a Police Officer. I am at loss to understand how the faith of a common man can be commanded in criminal justice, if the investigation is found to be tainted, motivated and defective. Any Police Officer, who falsely inculpates any innocent person in a crime or exculpates a guilty man, commits an un-excusable sin in the society.

8. Turning to the facts of the present case, it is clear from the order of the learned District & Sessions Judge, Bharatpur that the witnesses Sohan Dei and Shiv Devi, in their first statement to the I.O., have categorically stated that the miscreants were having covered faces. They did not name the petitioners to be participants in the crime. The petitioners have been implicated by recording additional statem