Evidentiary Value of FIR: Substantive Evidence & Accused FIR

The Evidentiary Value of the First Information Report

The FIR: What It Is and What It Is Not

A First Information Report — universally known as an FIR — is the information given to an officer-in-charge of a police station regarding the commission of a cognizable offence, which information is recorded under Section 154 of the Code of Criminal Procedure, 1973 (now Section 173 of the Bharatiya Nagarik Suraksha Sanhita, 2023). Its primary function is to set the machinery of criminal law in motion. As the Supreme Court stated in Superintendent of Police, CBI v. Tapan Kumar Singh (2003) 6 SCC 175, the FIR marks the commencement of investigation and need not be an encyclopaedia disclosing all facts — it need only disclose the commission of a cognizable offence and give the police a basis to suspect. A first informant need not even be an eyewitness.

But what does an FIR mean in the courtroom? The settled position, affirmed in Gulshan Kumar v. State (1993 Cr LJ 1525 Del) and reiterated in a long line of authority, is that an FIR is not substantive evidence — it is not evidence of the facts stated in it. A substantive piece of evidence is one on which the court can base a finding of fact directly. The FIR is not that. It is merely the earliest version of the prosecution story, recorded at a time when details may be incomplete and impressions still fresh. It possesses only corroborative or contradictory evidentiary value, and must be understood within that framework.

The FIR as Non-Substantive Evidence: Its Corroborative Role

Section 157 of the Indian Evidence Act, 1872 (Section 149 of the BSA, 2023) permits a former statement to be proved in order to corroborate the testimony of a witness in court. The FIR, if proved through the investigating officer under Section 35 of the Evidence Act (public records made by public servants in the discharge of duty), can be used to corroborate the testimony of the first informant if that person later appears as a witness and gives evidence consistent with the FIR. Conversely, under Section 145 of the Evidence Act (Section 137 of the BSA, 2023), the FIR can be used to contradict the informant if the version given in court varies materially from what was stated in the FIR. As was classically stated, the FIR "can be used to corroborate or contradict the statement of the maker thereof and also to judge the trustworthiness of the prosecution story."

However, the FIR cannot be used to contradict any person other than the person who made it — it cannot be used to contradict a witness who did not give that information. The entries in the FIR prove only that the information was given, not that the facts contained in it are true.

When Does the FIR Become Substantive Evidence?

The law recognises several exceptional situations where the FIR transcends its ordinary corroborative role and becomes substantive evidence in its own right — evidence on which the court may directly found its conclusions.

First: When the FIR is a Dying Declaration (Section 32(1) / Section 26(a) BSA)

The most important exception arises when the person who gives the FIR subsequently dies, and the FIR contains a statement relating to the cause of that person's death or the circumstances of the transaction which resulted in the death. Such a statement falls squarely within Section 32(1) of the Indian Evidence Act (Section 26(a) of BSA), which makes dying declarations relevant and admissible as substantive evidence. The underlying rationale is the powerful presumption that a person on the threshold of death would not speak falsehood — nemo moriturus praesumitur mentiri — no one is presumed to lie at the point of death.

A vivid illustration may help: Suppose A is mortally stabbed by B. A drags herself to the police station and lodges an FIR stating, "B has stabbed me and I am likely to die." A dies the same evening. That FIR is not merely corroborative — it is a dying declaration under Section 32(1) and becomes direct substantive evidence against B. The Supreme Court affirmed this position in Gulam Hussain v. Delhi (2000 Cr LJ 3949), where it was held that if a person makes a statement as to the cause of her death in an FIR to a police officer, the statement can be treated as a dying declaration, and — crucially — Section 162(2) of the CrPC expressly saves such dying declarations from the bar against statements made to police during investigation, because Section 162(2) provides that the bar "shall not be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act." This protection is retained under the BNSS, 2023.

Second: When the FIR Leads to Discovery of a Fact (Section 27 / Proviso to Section 23 BSA)

When an accused person's statement to the police — whether or not it amounts to a confession — leads to the discovery of a fact, that portion of the statement which distinctly relates to the fact discovered becomes admissible under Section 27 of the Indian Evidence Act (proviso to Section 23 of the BSA, 2023). This is grounded in the doctrine of confirmation by subsequent events — if a fact is discovered as a consequence of information given by the accused, the discovery itself is a guarantee that the information was true and freely given, not extorted. Thus, if an FIR or a statement made by the accused to the police leads the police to discover, say, the murder weapon hidden in a specific location, that part of the statement becomes substantive evidence. The Supreme Court in Pulukuri Kottaya v. Emperor (AIR 1947 PC 67) laid down the principle with enduring precision: the section admits only "so much of the information as distinctly relates to the fact thereby discovered" and nothing more.

Third: When the FIR is an Admission of a Non-Confessional Nature

When the accused himself files an FIR and that FIR contains admissions of fact — though not a confession in the strict sense — those admissions are relevant under Section 21 of the Evidence Act (Section 20 of BSA). The FIR in that situation, to the extent it contains admissions of incriminating facts that fall short of a direct acknowledgment of guilt, can be used as substantive evidence against the maker. This leads directly to the most fascinating question in this area.

The FIR Lodged by the Accused Himself: A Short Note

The Question

Can an FIR given to the officer-in-charge of a police station by the accused himself — in which the accused acknowledges the commission of a cognizable offence — be used as admissible evidence against him? This question cuts across Sections 21, 25, and 162 of the Evidence Act with the surgical precision of a scalpel, and the courts have worked through it in a series of landmark decisions.

The Governing Provisions

Three provisions are directly relevant here. Section 25 of the Evidence Act (Section 22, BSA) provides: "No confession made to a police officer shall be proved as against a person accused of any offence." Section 162 of the Code of Criminal Procedure provides that no statement made by any person to a police officer in the course of an investigation shall be used at any inquiry or trial. And Section 21 of the Evidence Act declares that an admission — a statement which is a self-harming acknowledgment of a fact, though falling short of a full confession — is relevant against its maker.

The Landmark Case of Aghnoo Nagesia

The Supreme Court confronted this question directly in Aghnoo Nagesia v. State of Bihar (AIR 1966 SC 119). The accused gave an FIR to the police in which he made a confessional statement — a statement that amounted to a direct acknowledgment of guilt. The Court surveyed the hopelessly conflicting decisions of the High Courts and settled the law with great finality: a confessional FIR given by the accused to the police is hit in its entirety by Section 25. The separability test — which sought to divide the FIR into confessional and non-confessional portions, admitting the latter — was rejected as misleading. Save for the formal part of the FIR identifying the accused as the maker, and save for any part that falls under Section 27 by virtue of leading to a discovery, no part of a confessional FIR can be proved in evidence against the accused.

The rationale is compelling. The vice which Section 25 addresses is the extortion of confessions by police officers using the third degree. If a confession made to a police officer is absolutely barred, it would be illogical to allow a confessional FIR to be used merely because the accused himself walked into the police station and "voluntarily" lodged it. The police machinery and the coercive environment in which such statements are made remain the same. As the Allahabad High Court observed in Queen-Empress v. Balmukund, the Legislature was keenly aware of the practices of the police in extorting confessions and designed Section 25 as an absolute bar.

When the FIR by the Accused is Not Confessional

The legal landscape changes decisively where the FIR filed by the accused does not amount to a confession but is, instead, an attempt to throw blame on another person or to mislead the police about the true facts. The Supreme Court addressed precisely this situation in Faddi v. State of Madhya Pradesh (AIR 1964 SC 1850). In that case, the appellant-accused himself filed an FIR stating that he had found the dead body of his stepson in a well — an account designed to create the impression that the death was accidental. The Court held:

"The report is not a confession of the appellant. It is not a statement made to a police officer during the course of investigation. Section 25 of the Evidence Act and Section 162 of the Code of Criminal Procedure do not bar its admissibility. The report is an admission by the accused of certain facts which have a bearing on the question to be determined by the Court."

This admission — that the accused had found the dead body — was received in evidence under Section 21 of the Evidence Act. The crucial distinction is this: if the accused files an FIR in which he admits certain facts (such as finding a dead body or being present at the scene) but does not directly acknowledge guilt, those admissions remain admissible as non-confessional statements. Only the confession — a statement that directly or by necessary implication admits the commission of the crime — attracts the bar of Section 25.

The Nexus Theory: Section 162 CrPC and Section 25

There is a further important distinction between Section 25 and Section 162. Section 162 CrPC bars all statements made to the police during the course of an investigation, whether or not they amount to confessions and whether made by the accused or a third party. Section 25, by contrast, bars only confessions made to police officers. Now, an FIR is given to the police before the investigation commences — it is the very document that sets the investigation in motion. A statement made before the investigation begins is therefore not a statement made "in the course of investigation" and does not attract the bar of Section 162. The critical point is that Section 25 extends to all confessions made to police officers regardless of whether investigation had begun. Hence, even a voluntary confessional FIR, made before any investigation, is barred under Section 25 but not under Section 162.

The Gujarat High Court expounded this principle in Himmat Singh v. State of Gujarat (AIR 1965 Guj. 802), holding that for the bar of Section 25 or Section 162 to apply, there must be some nexus between the making of the statement and the police officer — the words "made to" imply a communication or connection. A letter of confession written by an accused and kept secretly on his person, not yet communicated to any police officer, did not satisfy this nexus and was therefore not barred.

Can the Accused Use His Own Confessional FIR in His Favour?

An intriguing question arises: if the confessional FIR cannot be used against the accused, can the accused himself use it in his own favour — for instance, to show that he acted under grave and sudden provocation (a partial defence under Section 300, IPC)? Section 25 only bars the confession as against "a person accused of any offence" — it does not expressly bar the accused from using his own confession in his favour. In Re Mottai Thevar (AIR 1952 Mad 586), Mack, J., stated: "There is nothing in the most unsatisfactory state of the law as regards confessions to police officers to stop the user of such a confession in favour of an accused person." However, where the confession is made after the commencement of investigation, Section 162 CrPC steps in and bars all use — against or in favour — of any statement made to the police in the course of investigation. The Madras High Court in Sudalaimani v. State (2014) 4 CTC 593 drew this line sharply: if the confessional FIR is given before the start of investigation, it can be used by the accused in his favour; if given after the commencement of investigation, both Sections 25 and 162 operate and its use in any direction is barred.

Summary of the Legal Position on the FIR by the Accused

To draw the threads together, the following propositions reflect the settled law:

An FIR lodged by the accused which amounts to a confession is barred in its entirety under Section 25 of the Evidence Act (Section 22, BSA) and cannot be proved against him, except to the extent of the formal parts identifying the maker and the portion saved by Section 27 on account of a discovery.
An FIR lodged by the accused which contains non-confessional admissions — facts which incriminate but do not directly acknowledge guilt — is admissible under Section 21 as an admission relevant against its maker, as held in Faddi v. State of MP.
The FIR given by the accused before the investigation commences is not barred by Section 162 CrPC, but if confessional, it remains barred by Section 25.
A dying declaration in the form of an FIR is full substantive evidence under Section 32(1) and is expressly saved by Section 162(2) CrPC from the bar against statements made to police.
The formal part of any FIR — identifying the accused as the person who lodged it — can always be proved regardless of content.

The law relating to the FIR lodged by the accused thus navigates a careful course: it protects the accused from the dangers of coerced self-incrimination through the bar of Section 25, while ensuring that voluntary admissions of fact that fall short of a confession remain available to the court in its search for truth.