What is the use of statement under Section 162 of CRPC in criminal trial?

 A statement under Section 162 CrPC is not substantive evidence and cannot be used generally in trial; it can be used mainly to contradict a prosecution witness in the manner laid down by Section 145 of the Evidence Act, and Tahsildar Singh v. State of U.P. explains that even material omissions may amount to contradictions if properly put and proved.

40-second answer

Print Page

Bombay HC: Statement recorded U/S 164 of CRPC is not a substantive evidence and it can be used only to corroborate or to contradict the witness

The learned trial Court accepted the statement made by Prashant PW12 under Section 164 of the Code to the effect that the accused had come out of his shop with a broken glass bottle when otherwise Prashant PW12 had not deposed to any such statement in his evidence before the Court. The learned trial Court accepted such a statement by placing reliance on the case of Sachin Shivaji Kadam & Ors. v. State of Maharashtra 2000 (2) MLR 54. As far as this aspect is concerned the law on the use of statements-recorded under Section 164 of the Code appears to be quite well settled in that the said statements can be used only for the purpose of contradiction under Section 145 or for corroboration under Section 157 of the Evidence Act. Learned counsel on behalf of the accused has placed reliance on the case of Gurjant Singh v. State of Rajasthan, MANU/SC/0198/1970 : AIR 1970 SC 1305 wherein the Apex Court has stated that the statements recorded under Section 164 of the Code Could not be considered as evidence but were corroborative of what was stated earlier in the committal Court. Some other decisions on the same point could also be referred to. Generally, statements under Section 164 of the Code are recorded with the avowed hope that the witnesses will not resile from the earliest versions given by them in respect of an incident out of fear of punishment. The Apex Court in Ram Kishan Singh v. Harmit Kaur Anr. MANU/SC/0169/1971 : AIR 1972 SC 468 has reiterated that the statement recorded under Section 164 of the Code is not a substantive evidence and it can be used only to corroborate or to contradict the witness. The same is also the view held by a learned Division Bench of Allahabad High Court in the case of Ram Lakhan Sheo Charan & Anr. v. State of U.P. MANU/UP/0302/1991 : 1991 Cri LJ 2790 wherein the learned Division Bench after considering catena of cases (more particularly referred to in para 12 of the judgment) came to the conclusion that the statements under Section 164 of the Code cannot be used as substantive piece of evidence. The learned trial Court therefore was not right on relying on any part of the statement of Prashant PW12 as recorded earlier under Section 164 of the Code when such a statement was not adhered to by him in his evidence before the Court, Moreover, Prashant PW12 had clearly stated that he had given such statement earlier because he was threatened by the police. This is another error committed by the learned trial Court. {P ara 8}

 IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 27 of 2007

Decided On: 20.08.2008

Shivaji Gaonkar Vs. State

Hon'ble Judges/Coram:

N.A. Britto, J.

Citation: 2008(4) MHLJ (Crl) 419, 2009 ALLMR (Cri) 359,MANU/MH/1632/2008

Print Page

Contradictions Are Not Evidence: Supreme Court Reiterates the Limits of Sections 161, 162,164 of CrPC and Section 145 Evidence Act

⚖️ “In criminal law, contradictions may bend credibility, but they cannot build conviction.”

“Contradictions weaken, but never convict.”

One of the most frequent confusions in criminal trials is the evidentiary value of police statements and recorded contradictions. In its recent decision in Mahabir & Ors. v. State of Haryana (Criminal Appeal Nos. 5560–5561 of 2024, decided 29 January 2025, MANU/SC/0122/2025), the Supreme Court once again clarified that contradictions drawn from police statements are not substantive evidence and cannot form the foundation of a conviction.

---

The Limited Role of Police Statements

During investigation, statements of witnesses are recorded under Section 161 CrPC. However, under Section 162 CrPC, these statements are expressly barred from use in evidence, except for the limited purpose of contradiction.

This contradiction can only be brought in through Section 145 of the Indian Evidence Act, which allows the defence or prosecution (with the court’s permission) to confront a witness with prior inconsistent statements. Crucially:

• These contradictions do not themselves prove the fact in issue.

• Their role is only to test the credibility and reliability of the witness who has resiled.

The Process of Proving Contradictions

For a contradiction to have any legal effect, strict compliance with Section 145 of the Evidence Act is required:

1. The witness must be confronted with the specific portion of the prior statement.

2. If the witness denies making it, the Investigating Officer must be examined to prove that such a statement was indeed made.

3. Even after being “proved,” the contradiction remains only a credibility check—not independent evidence of the facts stated therein.

The Court warned that trial judges cannot use police statements on their own motion as if they were evidence. They become relevant only after being “duly proved” in the prescribed manner.

What About Section 164 CrPC Statements?

Interestingly, the Court extended this principle even to statements recorded by a Magistrate under Section 164 CrPC. While these are procedurally more reliable than police statements, they too do not attain the character of substantive evidence. Their use remains limited to:

• Corroboration (if consistent with court testimony), or

• Contradiction (if inconsistent with court testimony).

But, standing alone, a Section 164 statement cannot secure a conviction.

Why This Matters

The Supreme Court’s insistence is founded on the basic principle of criminal jurisprudence: a man cannot be convicted unless there is substantive evidence, given under oath, tested by cross-examination in court.

Contradictions highlight inconsistency or unreliability, but they cannot supply the missing substantive evidence. In absence of credible, positive evidence, mere contradictions—whether from police diaries or Magistrate-recorded statements—cannot establish guilt beyond reasonable doubt.

Practical Implications for Trials

• For Prosecutors: A hostile witness must not be left with a few mechanical suggestions. Proper and meaningful cross-examination is essential to test the truth.

• For Defence: The use of contradictions is a weapon to discredit, not to substitute for substantive evidence.

• For Judges: It is vital to ensure contradictions are proved as per procedure, and equally vital not to treat them as substantive proof.

The Core Point

The Supreme Court is saying that contradictions—whether drawn from:

• Section 161 CrPC statements (statement to police during investigation), or even

• Section 164 CrPC statements (statement/confession recorded before a Magistrate),

cannot be treated as substantive evidence by themselves.

1. What is “Substantive Evidence”?

• Substantive evidence = evidence that the court can directly rely upon to establish a fact in issue.

• Example: a witness testifying under oath in court about what they saw, or documentary evidence duly proved.

• It is the real backbone of conviction or acquittal.

2. What are “Contradictions under Section 145 Evidence Act”?

• Section 145 Evidence Act allows a witness to be cross-examined with his earlier written statement.

• The earlier statement is not evidence in itself—it serves only a limited role: to show that the witness is inconsistent, unreliable, or untruthful.

• Example:

  • Witness in court says: “I saw A stab B.”

  • In his 161 CrPC statement to police, he had said: “I did not see who stabbed B.”

  • Defence can use Section 145 to contradict him.

  • This contradiction affects credibility but does not prove the fact of who stabbed B.

Thus, the contradiction is only a tool for testing reliability, not independent evidence of the incident.

3. Why Even Section 164 CrPC Statements Are Not “Substantive”

• Section 164 CrPC allows a Magistrate to record witness statements or confessions voluntarily.

• The logic: Since they are not made in court (under oath and subject to cross-examination), they too cannot be treated as substantive evidence.

• They may be used to:

  • Corroborate testimony (if consistent), or

  • Contradict testimony (if inconsistent),
    but they do not by themselves establish guilt or innocence.

4. What the SC is Cautioning Against in Para 81 of said judgment

• Trial courts and High Courts must not fall into the trap of using contradictions as if they were “positive evidence.”

• Even if a contradiction is proved through the Investigating Officer or by confronting the witness, it only “weakens credibility”; it does not “add new facts” into the evidentiary record.

• A conviction cannot rest solely on contradictions. There must be substantive evidence—like direct testimony, supported by corroboration if available.

Illustration

Let’s imagine:

• Prosecution witness says in court: “I did not see the murder.”

• Police statement (161 CrPC): “I saw the accused stab the victim.”

Even if the court says “Aha! The witness is contradicting himself,” it cannot convict the accused based on this police statement. The statement is not evidence—it only shows that the witness is unreliable.

The conviction still needs positive, substantive testimony or other forms of admissible evidence.

 In summary:

Para 81 of said judgment highlights a very important evidentiary principle: Contradictions (under Section 145 Evidence Act) and even prior statements (under Section 164 CrPC) are not substantive evidence. They serve only as credibility tests—not proof of guilt. Conviction must be based solely on substantive legal evidence given under oath in court, not on investigative paperwork or prior statements.

Conclusion

The message from the Supreme Court in Mahabir v. State of Haryana is unequivocal: Contradictions are not evidence. Whether under Section 145 of the Evidence Act, or even when a statement is recorded under Section 164 CrPC, these materials serve only a collateral purpose. Ultimately, convictions must rest on substantive evidence given before the trial court under oath.

This ruling is a timely reminder for trial courts and High Courts not to blur the boundaries between contradiction and evidence—and for prosecutors to rise above perfunctory cross-examinations when dealing with hostile witnesses.

Print Page

Whether evidence of witnesses recorded prior to passing of exparte decree can be used to confront them?

 In my view, where an order setting aside the ex parte decree with permission to file written statement attains the finality, it has the effect of wiping out the entire evidence recorded prior to setting aside the ex parte decree and the Court will have to re-record such evidence. The evidence of the witnesses of the plaintiff recorded earlier can be used to confront it to the said witnesses, as is permissible under Section 145 of the Indian Evidence Act, being the previous statement of the witnesses.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 2177 of 2016

Decided On: 03.04.2018

 Chandraprakash Dayaramji Lanjewar Vs.  Ratnakala Wamanrao Khatkhede and Ors.

Print Page

Whether Video CD is admissible in evidence as previous statement of witness?

 Now, the question is as to whether or not the video C.D.

containing a recorded interview of PW 3 could be used for the purpose of contradicting the prosecution witnesses or for the purpose of testing veracity of their evidence or impeaching their credit.

11. The Constitution Bench comprising Five Hon'ble Judges Bench of the Supreme Court as far back in the year 1971 has settled the law on the issue raised by the above question. The Hon'ble Apex Court, by considering the provisions contained in Sections 146, 153, 155 and 157 of the Indian Evidence Act, 1872 has held that a previous statement made by a witness and recorded on tape can be used not only to corroborate the evidence given by the witness in Court, but also to contradict the evidence of such a witness or to test the veracity of the evidence of such witness or to impeach the credit of such a witness. Accordingly, Hon'ble Apex Court has held that previous statement of a witness which has been recorded on tape is admissible. This law has also been followed by the learned Single Judge of this Court in the case of Havovi Kersi (supra).

12. Now a previous statement recorded on tape is admissible in evidence, I do not understand as to how a compact disc, (CD), which is capable of containing not only the audio signal but also the video signal can be held to be inadmissible in evidence by mere reference to Section 145 of the Indian Evidence Act, 1872. It does not require an expert opinion to find that a CD records not only the statement made by a person or the conversation between the persons but also the live picture frames of the person making a statement or the persons engaged in conversation. In other words, a CD can contain record of not only the statement or conversation but also of the person or the actors who can be heard and seen as making statements. Thus, by all means, a CD can be said to be containing previous statements of the persons appearing therein and, therefore, by the application of the principle of law laid down in the Constitution Bench Judgment of the Hon'ble Apex Court in the case of N. Sri Rama Reddi and others (supra), the previous statements recorded in the CD would also be admissible in evidence. Therefore, I am of the view that the learned Additional Sessions has committed a serious error of law in not considering these aspects of the matter and refusing to apply the law laid down by the Hon'ble Apex Court in the case of N. Sri Rama Reddi and others (supra).

Bombay High Court

Mohd. Munaf S/O Mohd. Habib And ... vs State Of Maharashtra, Through ... on 9 March, 2015

Bench: S.B. Shukre

CRIMINAL APPLICATION (APL) No.124 OF 2015

Citation:2016 ALLMR(CRI)2483

Print Page

Precaution to be taken by court while recording contradictions and omissions in evidence

 Learned counsel Dr.
Kalsi, during the course of arguments, has brought to my notice that there
are glaring omissions in the earlier statement of P.W.3.  She has invited my
attention to the cross­examination of P.W. 3 Shraddha.  The said witness in
her cross­examination has stated that she had stated before the police that
the appellant had outraged her modesty and had committed rape on her.

She was, however, unable to give any explanation as to why these facts are
not recorded in her police statement.  Few more similar omissions are taken
on record for which P.W. 3 was unable to give any explanation.
The Investigating Officer has also stated in his evidence that the
above stated facts were not mentioned by P.W. 3 in her police statement.  It is
seen from the Record and Proceedings that the omissions were recorded and
proved without referring the police statement of P.W. 3.   Had the police
statement of P.W. 3 been seen by the Judge himself or had it been brought to
the notice of P.W. 3 herself the omissions would not have come on record.  In
fact, it was mandatory on the part of the cross­examiner to call attention of
P.W. 3 to her previous statement before any contradiction (omissions) was
intended to be brought on record.  It is noted by me that Section 145 of the
Evidence   Act   was   not   followed   while   recording   omissions   in   the   earlier
statement of P.W. 3.  Section 145 of the Evidence Act runs as under :
“145.  Cross­examination as to previous statements
in writing  – A witness may be cross­examined 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 the writing can be
proved, be called to those parts of it which are to be used
for the purpose of contradicting him.”
It is thus, clear from reading of Section 145 of the Evidence Act
that if P.W. 3 was intended to be contradicted with her previous statement, it

was necessary for the learned counsel for the appellant to call her attention
to the previous writing and put relevant questions to bring the contradictions
(omissions) on record.  The omissions have been casually recorded without
reference to the previous statement of P.W. 3.  I have gone through her cross examination.
I have come to the conclusion that had the proper procedure
been followed for recording omissions, the omissions would not have come
on record.   As already stated, a very casual approach was adopted by the
prosecutor,   defence   lawyer   and   the   Judge   while   recoding   the   crossexamination
of P.W. 3. In fact, it was the duty of the Judge to regulate the
cross­examination.   He was under obligation to see the writing himself to
ascertain  whether the  question was properly  framed  and he was further
under obligation to see that earlier statement was brought to the notice of
the witness before she was contradicted.  As such, the omissions which have
been brought on record could not be treated as omissions and evidence of
P.W.  3  has  to  be  read  without  omissions   which  are   stated  to  be  proved
omissions. 
  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 104 OF 2012
Raju S/o. Bhimrao Girnare,
V
The State of Maharashtra, 

      CORAM : M.L. TAHALIYANI, J.
      DATED   : MARCH 21, 2014.
Citation;2016 CRLJ(NOC)77 Bom

Print Page

Whether witness can be cross examined with reference to his previous statement in CD?

Now a previous statement recorded on tape is admissible in evidence, I do not understand as to how a compact disc, (CD), which is capable of containing not only the audio signal but also the video signal can be held to be inadmissible in evidence by mere reference to Section 145 of the Indian Evidence Act, 1872. It does not require an expert opinion to find that a CD records not only the statement made by a person or the conversation between the persons but also the live picture frames of the person making a statement or the persons engaged in conversation. In other words, a CD can contain record of not only the statement or conversation but also of the person or the actors who can be heard and seen as making statements. Thus, by all means, a CD can be said to be containing previous statements of the persons appearing therein and, therefore, by the application of the principle of law laid down in the Constitution Bench Judgment of the Hon'ble Apex Court in the case of N. Sri Rama Reddi and others (supra), the previous statements recorded in the CD would also be admissible in evidence. Therefore, I am of the view that the learned Additional Sessions has committed a serious error of law in not considering these aspects of the matter and refusing to apply the law laid down by the Hon'ble Apex Court in the case of N. Sri Rama Reddi and others 

Equivalent Citation: 2015(2)BomCR(Cri)428

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Application (APL) No. 124 of 2015

Decided On: 09.03.2015

 Munaf and Ors. Vs. State of Maharashtra

Hon'ble Judges/Coram:S.B. Shukre, J.

Print Page

When electronic document DVD can not be used as previous statement as per S 145 and S 155(3) of Evidence Act?

Matters being so, the said documents marked as

D30 and D31 in evidence, even if those documents are

admissible under Section 65B(4) of the Indian Evidence Act

as an electronic record, the same cannot be made use of as

a previous statement within the meaning of Section 145 as

well as Section 155(3) of the Indian Evidence Act.

Admittedly, those DVDs contain the matters recorded by the

investigating officer or some other matters available at the

scene of occurrence during the preparation of the scene

mahazar.      A mahazar cannot be treated as a previous



statement at all.    What was seen by the person, who

prepared the mahazar, are recorded in the mahazar. It is

only a document.
IN THE HIGH COURT OF KERALAAT ERNAKULAM

                                                      PRESENT:

                         MR. JUSTICE B.KEMAL PASHA

           TUESDAY,THE 8TH DAY OF DECEMBER 2015
                                           Crl.MC.No. 7647 of 2015 ()
                                              

    MOHAMMED NISSAM A.A., Vs  THE STATEOF KERALA
           




Coram:  B. KEMAL PASHA, J.

Print Page

Where the accused himself lodges the first information report, the fact of his giving the information to the police is admissible against him as evidence of his conduct under Section 8 of the Evidence Act to the extent it is non-confessional in nature

The Apex Court in Bheru Singh v. State of Rajasthan, (supra) has laid down :--

"17. Where the first information report is given by an accused himself to a police officer and amounts to a confessional statement, proof of the confession is prohibited by Section 25 of the Evidence Act. No part of the confessional statement can be proved or received in evidence, except to the extent it is permitted by Section 27 of the Evidence Act. The first information report recorded under Section 154 of the Criminal Procedure Code is not a substantive piece of evidence. It may be used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Evidence Act in case the informant appears as a witness at the trial. Where the accused himself lodges the first information report, the fact of his giving the information to the police is admissible against him as evidence of his conduct under Section 8 of the Evidence Act to the extent it is non-confessional in nature. It would also be relevant under Section 21 of the Evidence Act but the confessional part of the first information report by the accused to the Police Officer cannot be used at all against him in view of the ban of Section 25 of the Evidence Act."

Bombay High Court

Bandu Yedu Metkari vs State Of Maharashtra on 22 February, 2002

Equivalent citations: 2002 BomCR Cri, (2002) 2 BOMLR 492, 2002 (2) MhLj 867

Bench: R Batta, F Rebello

Print Page