Supreme court: What will be impact of Material vs. Normal Discrepancies on credibility of prosecution witnesses?

 In State of Rajasthan v. Smt. Kalki and Anr.   MANU/SC/0254/1981 : AIR 1981 SC 1390, while dealing with this issue, this Court observed as under:

In the depositions of witnesses there are always normal discrepancies, however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person. {Para 18}

19. The courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. (see: Syed Ibrahim v. State of A.P.   MANU/SC/8237/2006 : AIR 2006 SC 2908; and Arumugam v. State   MANU/SC/8108/2008 : AIR 2009 SC 331).

20. In Bihari Nath Goswami v. Shiv Kumar Singh and Ors.   MANU/SC/0158/2004 : (2004) 9 SCC 186, this Court examined the issue and held:

Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.

21. While deciding such a case, the Court has to apply the aforesaid tests. Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 891 of 2004

Decided On: 11.11.2010

Sunil Kumar Sambhudayal Gupta and Ors. Vs. State of Maharashtra

Hon'ble Judges/Coram:

P. Sathasivam and B.S. Chauhan, JJ.

Author: B.S. Chauhan, J.

Citation: 2010 INSC 770,2011 ALLMR 288 (SC),MANU/SC/0947/2010.

Read full Judgment here: Click here.

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Supreme Court: What are parameters for deciding appeal against acquittal?

 Appeal against Acquittal:

22. It is a well-established principle of law, consistently re-iterated and followed by this Court is that while dealing with a judgment of acquittal, an appellate court must consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. Even though the appellate court is entitled to consider, whether in arriving at a finding of fact, the trial Court had placed the burden of proof incorrectly or failed to take into consideration any admissible evidence and/or had taken into consideration evidence brought on record contrary to law; the appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. The trial court which has the benefit of watching the demeanour of the witnesses is the best judge of the credibility of the witnesses.

23. Every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right. Subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence in India. The nature of the offence, its seriousness and gravity has to be taken into consideration.

The appellate court should bear in mind the presumption of innocence of the accused, and further, that the trial court's acquittal bolsters the presumption of his innocence. Interference with the decision of the Trial Court in a casual or cavalier manner where the other view is possible should be avoided, unless there are good reasons for such interference.

24. In exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. A finding may also be said to be perverse if it is 'against the weight of evidence', or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (See: Balak Ram and Anr. v. State of U.P.   MANU/SC/0410/1974 : AIR 1974 SC 2165; Shailendra Pratap and Anr. v. State of U.P.   MANU/SC/0007/2003 : AIR 2003 SC 1104; Budh Singh and Ors. v. State of U.P.   MANU/SC/8163/2006 : AIR 2006 SC 2500; S. Rama Krishna v. S. Rami Reddy (D) by his L.Rs. and Ors.   MANU/SC/7538/2008 : AIR 2008 SC 2066; Arulvelu and Anr. v. State   MANU/SC/1709/2009 : (2009) 10 SCC 206; Ram Singh alias Chhaju v. State of Himachal Pradesh   MANU/SC/0070/2010 : (2010) 2 SCC 445); and Babu v. State of Kerala   MANU/SC/0580/2010 : (2010) 9 SCC 189).

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 891 of 2004

Decided On: 11.11.2010

Sunil Kumar Sambhudayal Gupta and Ors. Vs. State of Maharashtra

Hon'ble Judges/Coram:

P. Sathasivam and B.S. Chauhan, JJ.

Author: B.S. Chauhan, J.

Citation: 2010 INSC 770,2011 ALLMR 288 (SC),MANU/SC/0947/2010.

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Supreme Court: The Rules of appreciation of evidence requires that court should not draw conclusions by picking up an isolated sentence of a witness without adverting to the statement as a whole

 There is ample evidence on record to suggest that the deceased had been suffering from psychosis/mental dis-order. According to Dr. Daulatram Nekumal Gurubani (PW.10) the ailment was not of a very serious nature. However, the prescriptions given by Dr. Gurubani (PW.10) reveal that the deceased had been suffering from serious mental dis-order, otherwise such medicines could not have been prescribed by him. He has prescribed the deceased the medicine Geroin because he was convinced that the deceased was suffering from major epilepsy, in spite of the fact that he was fully aware that the said drug has side effects. He also deposed that mere clinical examination alone is not sufficient to decide whether the patient is suffering from epilepsy. He further deposed that such medicine can be given to a person suffering from grand-mal epilepsy. More so, had it not been the case of serious ailment of mental dis-order, the question of prescribing and giving E.C.T. to the deceased could not arise. {Para 26}

27. There had been a lot of improvements and contradictions in his statements. The witness deposed for the first time in the court during the trial, that when he went to examine the deceased, she was found in an unkept room/store room and that he was introduced to the deceased as a Psychiatrist and that the deceased had asked him whether he treated his wife in the same way as she had been treated by her husband. None of this was mentioned in his statement recorded by the police. Nor it had been recorded therein that the deceased had told him that she was harassed by the appellants and her ornaments were taken away/worn by her mother in law (A.3). More so, he had not stated in his police statement that the deceased was merely mentally disturbed and not suffering from a gross psychological problem. Nor had he stated therein that the deceased had told him that she was not having any faith in any of her family members and she was deprived of their love, affection and sympathy. Such contradictions in his statements cannot be held to be mere explanations or elaborations of his version, but are tantamount to material contradictions or vital omissions. The Rules of appreciation of evidence requires that court should not draw conclusions by picking up an isolated sentence of a witness without adverting to the statement as a whole. In such a fact-situation, it is not safe to rely on his testimony for the simple reason that he had made a lot of improvements/embellishments while deposing in court and vital contradictions exist with his earlier recorded statement. Thus, no reliance can be placed on his depositions to hold that appellants had ill-treated the deceased or that appellant No. 3 had taken away/worn her ornaments or that she had been deprived of their love and affection or that she was not suffering from epilepsy etc.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 891 of 2004

Decided On: 11.11.2010

Sunil Kumar Sambhudayal Gupta and Ors. Vs. State of Maharashtra

Hon'ble Judges/Coram:

P. Sathasivam and B.S. Chauhan, JJ.

Author: B.S. Chauhan, J.

Citation: 2010 INSC 770,2011 ALLMR 288 (SC),MANU/SC/0947/2010.

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Supreme Court: Under which circumstances burden is on prosecution to prove that complainant had not received letter sent by accused?

The complainants have denied the receipt of letter dated 3.4.1985 written by the appellant No. 2 to the father of the deceased, referred to hereinabove. However, the appellants have produced the correspondence with the post office and proved the postal stamp to show that the said letter had been sent by registered A.D. to Ramkishan Gupta (PW.8). The law in this regard is well settled.

In Gujarat Electricity Board and Anr. v. Atmaram Sungomal Poshani   MANU/SC/0200/1989 : AIR 1989 SC 1433, this Court examined the issue regarding the presumption of service of letter sent by registered post under Section 27 of the General Clauses Act, 1897 and held as under:

There is a presumption of service of a letter sent under registered cover.... No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him.... The burden to rebut the presumption lies on the party challenging the factum of service.

(Emphasis added)

A similar view has been re-iterated by this Court in Chief Commissioner of Income Tax (Administration), Bangalore v. V.K. Gururaj and Ors.   MANU/SC/1348/1996 : (1996) 7 SCC 275; and Shimla Development Authority and Ors. v. Santosh Sharma (Smt.) and Anr.   MANU/SC/0416/1997 : (1997) 2 SCC 637.

In Harihar Banerji v. Ramshashi Roy AIR 1918 PC 102, a similar view had been taken by the Privy Council, referring to Illustration (f) of Section 114 of the Indian Evidence Act, 1872.

In view of the above, it was the responsibility of the complainants to prove by adducing evidence of the official of the Post Office, Kanpur that the said letter had not been delivered to them. {Para 33}

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 891 of 2004

Decided On: 11.11.2010

Sunil Kumar Sambhudayal Gupta and Ors. Vs. State of Maharashtra

Hon'ble Judges/Coram:

P. Sathasivam and B.S. Chauhan, JJ.

Author: B.S. Chauhan, J.

Citation: 2010 INSC 770,2011 ALLMR 288 (SC),MANU/SC/0947/2010.

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Supreme court: How to appreciate prosecution evidence if there is allegation that accused demanded dowry after passing of near about six years from the date of his marriage?

 The instant case is required to be examined from another angle also. The marriage took place on 1st December, 1978. The complainant party could not place any correspondence on record prior to February 1985 except letter dated 24th February, 1979 written by the deceased herself to her husband. However, it goes in favour of the appellants. Therefore, it is evident that the controversy arose only after the expiry of the period of more than 6 years from the date of marriage. It is quite possible that the dispute arose between the parties only because of the suspicion that the deceased had developed an illicit relationship with Kake. Had there been a demand of dowry or ill-treatment to her on any other ground by the appellants, there could have been some correspondence between the parties during the aforesaid long period of more than 6 years. None of the prosecution witnesses had made any allegation of any demand of dowry or ill treatment during the said earlier period. It is unnatural that after expiry of such a long period, the appellants suddenly became greedy and started demanding ornaments and for not meeting their demand, started ill treating the deceased to the extent that she had to commit suicide. Thus, the allegations made by the complainant party remained unnatural and improbable. More so, the demand had been only of a thin gold chain which could not be very expensive in those days, especially given the socio-economic status of all the parties. For the gold ornament worth such a petty amount after the expiry of a long period of about 6 = years, from the date of marriage, it is not natural that the appellants could treat the deceased with such cruelty that she was drawn to commit suicide. {Para 34}

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 891 of 2004

Decided On: 11.11.2010

Sunil Kumar Sambhudayal Gupta and Ors. Vs. State of Maharashtra

Hon'ble Judges/Coram:

P. Sathasivam and B.S. Chauhan, JJ.

Author: B.S. Chauhan, J.

Citation: 2010 INSC 770,2011 ALLMR 288 (SC),MANU/SC/0947/2010.

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Supreme Court: Whether the court can rely on evidence of prosecution witness who has stated a fact before court for the first time without stating it at the time of his statement to police U/S 161 of CRPC?

 In case, the complainant in the FIR or the witness in his statement under Section 161 Cr.P.C., has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded. (Vide: State Represented by Inspector of Police, Tamil Nadu v. Sait @ Krishnakumar   MANU/SC/8143/2008 : (2008) 15 SCC 440). {Para 17}

30. So far as the stay of the deceased with her parents after coming from Kanpur to Kalyan at the guest house is concerned, admittedly at that time the relations between the parties were strained because of the suspicion that the deceased was having an illicit relationship with Kake. However, it has been admitted by Ramkishan (PW.8), father of the deceased, that subsequently the relations became normal and they were invited at the house of the appellants after the deceased tendered an apology to her mother-in- law. The said witness did not state in his statement before the police that when he went to see the appellants on 17.2.1985, they had asked him whether he had brought gold ornaments or had come empty handed or that he was told that the deceased would not be allowed to live there and they would make her condition even more miserable. Such an improvement was made while deposing in court and no explanation could be furnished by him as to why such vital facts were not stated by him at the time of recording his statement under Section 161 Cr.P.C. This statement is to be discarded as it is not safe to hold the appellants guilty of the offences alleged against them on such an improved version.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 891 of 2004

Decided On: 11.11.2010

Sunil Kumar Sambhudayal Gupta and Ors. Vs. State of Maharashtra

Hon'ble Judges/Coram:

P. Sathasivam and B.S. Chauhan, JJ.

Author: B.S. Chauhan, J.

Citation: 2010 INSC 770,2011 ALLMR 288 (SC),MANU/SC/0947/2010

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Supreme court: S.161 CrPC Statement Of Accused Implicating Co-Accused Cannot Be Considered At Stage Of Regular Or Anticipatory Bail

53. From the above exposition of law, the following emerges:

(i) A person who is Accused of an offence or named in the first information report, can be examined by the police and his statement may be recorded Under Section 161 of the Code of Criminal Procedure, as held in Nandini Satpathy (supra).

(ii) A statement of an Accused Under Section 161 of the Code of Criminal Procedure, would ordinarily be of two kinds, it may be inculpatory in nature or may be exculpatory in nature.

(iii) An inculpatory statement again may be in the form of an admission or a confession. If such statement admits either a gravely incriminating fact or substantially all the facts which constitute the offence, respectively, as held in Pakala Narayana Swami (supra), then it amounts to confession.

(iv) Where such police statement of an Accused is confessional statement, the rigour of Section(s) 25 and 26 respectively will apply with all its vigour. A confessional statement of an Accused will only be admissible if it is not hit by Section(s) 24 or 25 respectively and is in tune with the provisions of Section(s) 26, 28 and 29 of the Evidence Act respectively. In other words, a police statement of an Accused which is in the form of a confession is per se inadmissible and no reliance whatsoever can be placed on such statements either at the stage of bail or during trial. Since such confessional statements are rendered inadmissible by virtue of Section 25 of the Evidence Act, the provision of Section 30 would be of no avail, and no reliance can be placed on such confessional statement of an Accused to implicate another co-Accused.

(v) A confessional statement of one Accused implicating another co- Accused may be taken into consideration by the court against such co- Accused in terms of Section 30 of the Evidence Act, only at the stage of trial, where (1) the confession itself was relevant and admissible in terms of the Evidence Act; (2) was duly proved against the maker; (3) such confessional statement incriminates the maker along with the co- Accused and; (4) both the Accused persons in question are in a joint trial for the same offence.

(vi) Furthermore, because such confessional statements are not "evidence" in terms of Section 3 of the Evidence Act as held in Bhuboni Sahu (supra), such a confession as held in Kashmira Singh (supra) can only be pressed into consideration by the court as a Rule of prudence, to lend assurance to the other evidence against such co-Accused, provided that aforesaid ingredients or conditions of Section 30 read with Section(s) 24 to 29 of the Evidence Act, are fulfilled.

(vii) Where the police statement of an Accused is in the form of an admission, such inculpatory statement even if it implicates another co-Accused cannot be taken into consideration against such co-Accused in terms of Section(s) 17 read with 21 of the Evidence Act, as doing so would militate against the general principle, that an admission may be given as evidence against the maker alone. The exceptions to the aforesaid general principle carved out under the Evidence Act, do not permit the usage of such admission against a co-Accused in any scenario whatsoever.

(viii) Where the police statement of the Accused is an exculpatory statement i.e., it is neither a confession nor an admission, the statement being one Under Section 161, would immediately attract the bar Under Section 162 of the Code of Criminal Procedure, and the same may be used only for the very limited purpose provided in the Proviso for the purpose of contradiction or re- examination of such Accused person alone, as held in Mahabir Mandal (supra). Even if such exculpatory statement of one Accused, implicates another co-Accused, the same cannot be taken into consideration against such co-Accused, as there can be no credibility attached to an exculpatory statement of an Accused implicating another co-Accused, more particularly because it is neither required to be given on oath, nor in the presence of the co-Accused, the same cannot be tested by cross- examination and the exculpatory nature of such statement militates against the foundational principle that permits taking into consideration a statement of one Accused person against another co-Accused as explained in Bhuboni Sahu (supra), i.e., 'when a person admits guilt to its fullest extent either to a certain incriminating fact or substantially all the facts which constitute the offence, and in doing so exposes himself and in the process other co-Accused persons to the pain and penalties provided for the guilt, there exists a sincerity and semblance of sanction for the truthfulness of such statement'.

(ix) Although a handful of decisions of this Court such as Indresh Kumar (supra) and Salim Khan (supra) have held that statements Under Section 161 of the Code of Criminal Procedure ought to be looked into by the courts at the stage of anticipatory or regular bail for the purpose of ascertaining whether a prima-facie case has been made out against the Accused and the nature and gravity of the allegations, yet the aforesaid Rule only applies insofar as such statements Under Section 161 were made by witnesses and not Accused persons. A statement of an Accused Under Section 161 of the Code of Criminal Procedure stands on a completely different footing from a police statement of a witness. As already discussed in the foregoing paragraphs, if the police statement of an Accused is inculpatory in nature, its more in the form of a confession or admission rather than a statement, and the relevant provisions of Section(s) 17 to 30 of the Evidence Act, will apply with all its vigour. Where such statement of the Accused is exculpatory in nature, the same can be looked into by the courts only for the limited purpose of either culling out the stance of the Accused person qua the allegations or for contradicting the Accused, if the Accused chooses to be examined as a witness in terms of Section 315 of the Code of Criminal Procedure. However, such exculpatory statement insofar as it implicates another Accused person cannot be looked into by the courts, as such statements by their nature cannot be tested by cross-examination if such Accused person declines to be a witness in the trial in terms of Section 315 of the Code of Criminal Procedure, and because such exculpatory statement has no credibility as explained in Bhuboni Sahu (supra).

(x) Before the court looks into the police statement of any person Under Section 161 of the Code of Criminal Procedure for the purpose of anticipatory or regular bail, the court must first ascertain whether such person is actually a witness or an Accused person, or likely to be an Accused person in respect of the offence(s) alleged. This is because, there may be situations where a person while giving his statement Under Section 161 of the Code of Criminal Procedure may not be an Accused, but later arrayed as one. In such a scenario the courts must be mindful of the fact that because the investigation is still ongoing, it is more likely for a person who was originally a witness to happen to be later arrayed as an Accused person. If the court was to blindly place reliance on statement of such a person merely because he is not named in the first information report, without first seeing whether such person is likely to be arrayed as an Accused or not, it would lead to an absurd situation where the statement of such a person may be relied upon up until such person is arrayed as an Accused. We also caution the courts, where it emerges from the material on record, that such a person is likely to be arrayed as an Accused, the courts should refrain from expressing any such opinion so that the investigation is not prejudiced in any manner.

 IN THE SUPREME COURT OF INDIA

Special Leave Petition (Criminal) Nos. 7532 of 2025, 7533/2025 and 7534/2025

Decided On: 16.05.2025

P. Krishna Mohan Reddy Vs. The State of Andhra Pradesh

Hon'ble Judges/Coram:

J.B. Pardiwala and R. Mahadevan, JJ.

 Citation: 2025 INSC 725,MANU/SC/0737/2025

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Supreme Court: Investigating Officer's Testimony Based Solely on Section 161 CrPC Statements of Witnesses is Inadmissible

 The only view that comes forth is that the prosecution completely failed to prove the allegations raised and charged against each of the Accused, more by reason of all the witnesses paraded before Court, at the trial, having turned hostile for reasons unknown. Whatever be the reason behind such hostility, it cannot result in a conviction, based on the testimony of the Investigating Officers which is founded only on Section 161 statements and voluntary statements of Accused; the former violative of Section 162 of the Code of Criminal Procedure and the latter in breach of Sections 25 & 26 of the Evidence Act.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 3189-3190 of 2023, 3399 of 2024 and 85-86 of 2024

Decided On: 09.05.2025

Renuka Prasad Vs. The State 

Hon'ble Judges/Coram:

Sudhanshu Dhulia and K. Vinod Chandran, JJ.

Author: K. Vinod Chandran, J.

Citation: 2025 INSC 657, MANU/SC/0667/2025

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Supreme Court: Revisional court can not set aside acquittal of accused relying on police or S 164 CRPC statement of witness if that witness has turned hostile to prosecution case

 It appears that the High Court relied upon the police statement of PW-7 recorded Under Section 161 of the Code of Criminal Procedure instead of his oral testimony before the trial court. {Para 74}

63. Section 162 Code of Criminal Procedure bars the use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated therein. The statement made by a witness before the police Under Section 161(1) Code of Criminal Procedure can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162(1) Code of Criminal Procedure The statements Under Section 161 Code of Criminal Procedure recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose : (i) of contradicting such witness by an Accused Under Section 145 of the Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the Court; and (iii) the re- examination of the witness if necessary.

64. The court cannot suo motu make use of statements to police not proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court. The words 'if duly proved' used in Section 162 Code of Criminal Procedure clearly show that the record of the statement of witnesses cannot be admitted in evidence straightaway, nor can be looked into, but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross-examination of the Investigating Officer. The statement before the Investigating Officer can be used for contradiction but only after strict compliance with Section 145 of the Evidence Act, that is, by drawing attention to the parts intended for contradiction.

80. This Court explained that the trial courts cannot independently use statements made to the police that have not been proven, nor can it base its questions on such statements if they conflict with the witness's testimony in court. The phrase 'if duly proved' in Section 162 of the Code of Criminal Procedure indicates that the statements of witnesses recorded by the police cannot be immediately admitted as evidence or examined. They must first be proven through eliciting admissions from the witness during cross-examination and also during the cross-examination of the Investigating Officer. While statements made to the Investigating Officer can be used for contradiction, this can only be done after strict compliance with Section 145 of the Evidence Act. This requires drawing attention to the specific parts of the statement intended for contradiction. This is what is required Under Section 145 of the Evidence Act but even where a witness is confronted by his previous statement and given an opportunity to explain that part of the statement that is put to him does not constitute substantive evidence.

81. There is a catena of decisions laying down the principle in law that the material elicited as contradiction by use of Section 145 of the Indian Evidence Act is not substantive evidence. Even in regard to the statement recorded Under Section 164 of the Code of Criminal Procedure by authorised Magistrate, it has been held accordingly. Therefore, the fact that the contradictions are proved through the investigating officers though the witnesses have denied having made such statements, does not translate the contradictions into substantive evidence. Unless there is substantive evidence, it cannot be acted upon legally particularly to base a conviction.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 5560-5561 of 2024

Decided On: 29.01.2025

Mahabir and Ors. Vs. State of Haryana

Hon'ble Judges/Coram:

J.B. Pardiwala,  and R. Mahadevan, , JJ.

Author:  J.B. Pardiwala, J.

Citation MANU/SC/0122/2025.

Read full judgment here: Click here.

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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.

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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.

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Can Defense Prove Witness Statement Recorded Under Section 161 CrPC Without Examining the Witness? Recent Supreme Court Clarifications

In criminal trials, statements recorded by the police under Section 161 of the Code of Criminal Procedure (CrPC) serve as important investigative tools. However, these statements do not automatically have evidentiary value at the trial stage unless the witness who made the statement is produced and examined in court. A common question arises when the prosecution does not examine a witness whose Section 161 statement was recorded: Can the defense rely on the Investigating Officer’s (IO’s) testimony regarding that witness’s statement to prove the contents without examining the witness?

Legal Position on Section 161 Statements

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Supreme court: Key Distinction: Accused vs. Witness Statements Under Section 161 CrPC in Bail Decisions

(ix) Although a handful of decisions of this Court such as Indresh Kumar (supra) and Salim Khan (supra) have held that statements under Section 161 of the Cr. P.C. ought to be looked into by the courts at the stage of anticipatory or regular bail for the purpose of ascertaining whether a prima-facie case has been made out against the accused and the nature and gravity of the allegations, yet the aforesaid rule only applies insofar as such statements under Section 161 were made by witnesses and not accused persons. A statement of an accused under Section 161 of the Cr. P.C. stands on a completely different footing from a police statement of a witness. As already discussed in the foregoing paragraphs, if the police statement of an accused is inculpatory in nature, its more in the form of a confession or admission rather than a statement, and the relevant provisions of Section(s) 17 to 30 of the Evidence Act, will apply with all its vigour. Where such statement of the accused is exculpatory in nature, the same can be looked into by the courts only for the limited purpose of either culling out the stance of the accused person qua the allegations or for contradicting the accused, if the accused chooses to be examined as a witness in terms of Section 315 of the Cr. P.C.. However, such exculpatory statement insofar as it implicates another accused person cannot be looked into by the courts, as such statements by their nature cannot be tested by cross-examination if such accused person declines to be a witness in the trial in terms of Section 315 of the Cr. P.C., and because such exculpatory statement has no credibility as explained in Bhuboni Sahu (supra).

(x) Before the court looks into the police statement of any person under Section 161 of the Cr. P.C. for the purpose of anticipatory or regular bail, the court must first ascertain whether such person is actually a witness or an accused person, or likely to be an accused person in respect of the offence(s) alleged. This is because, there may be situations where a person while giving his statement under Section 161 of the Cr. P.C. may not be an accused, but later arrayed as one. In such a scenario the courts must be mindful of the fact that because the investigation is still ongoing, it is more likely for a person who was originally a witness to happen to be later arrayed as an accused person. If the court was to blindly place reliance on statement of such a person merely because he is not named in the first information report, without first seeing whether such person is likely to be arrayed as an accused or not, it would lead to an absurd situation where the statement of such a person may be relied upon up until such person is arrayed as an accused. We also caution the courts, where it emerges from the material on record, that such a person is likely to be arrayed as an accused, the courts should refrain from expressing any such opinion so that the investigation is not prejudiced in any manner.

In the Supreme Court of India

(Before J.B. Pardiwala and R. Mahadevan, JJ.)

Special Leave Petition (Criminal) No. 7532 of 2025

P. Krishna Mohan Reddy  Vs State of Andhra Pradesh 

Decided on May 16, 2025.

Citation: 2025 SCC OnLine SC 1157.

Read full judgment here: Click here.

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Whether investigating officer can seek Production warrant U/S 267 of CRPC for recording statement of a witness during investigation?

 Section 267(1) of the Cr.P.C under which the appellant had moved an application before the trial Court reads as under: 

“267. Power to require attendance of prisoners. (1) Whenever, in the course of an inquiry, trial or other proceeding under this Code, it appears to a Criminal Court,- (a) that a person confined or detained in a prison should be brought before the Court for answering to a charge of an offence, or for the purpose of any proceedings against him, or (b) that it is necessary for the ends of justice to examine such person as a witness, the Court may make an order requiring the officer in charge of the prison to produce such person before the Court for answering to the charge or for the purpose of such proceeding or, as the case may be, for giving evidence. (2)…………………………………………………………………..

(3)………………………………………………………………….

30 Form a plain reading of Section 267(1), it clearly transpires that a Criminal Court, in the course of an enquiry, trial or other proceedings under the Code of Criminal Procedure, can direct a person confined or detained in a prison to be produced before the Court for answering to a charge of an offence or for the purpose of any proceedings against him. The criminal Court is further empowered to direct the officer in-charge of the prison to produce any person who is required to be examined as a witness for the purpose of giving evidence.

 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

CrlA(D) No. 46/2022 ,CrlM No. 1474/2022

National Investigation Agency Through Its Chief Investigating Officer, Jammu Vs Mr. Vishal Sharma, DSGI.

CORAM:

HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

HON’BLE MR. JUSTICE MOHAN LAL, JUDGE

Author: Sanjeev Kumar, J.

Pronounced on 13..12.2022.

Read full Judgment here: Click here

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Under which circumstances can a written statement given by witnesses to investigating officer be treated as his statement U/S 161 of CRPC?

In present case, I.O. has visited place of witnesses Smt.

Manju Rani and Talat Zameer who handed over their written

statements which were transcribed by I.O. in case diary in

their presence as well as original statements were made part of

case diary also. I.O. asked few questions to witnesses and

answers thereof were also reduced into writing in case diary,

therefore, only lacuna, if exists, was that witnesses have not

mentioned their statements orally i.e. stated in their own voice.

{Para 7}

8. The purpose of statements made under Section 161

Cr.P.C. is to investigate an occurrence to find out culprits. So

far as evidentary value of these statements is concerned, it

would only for purpose of contradiction, if any, committed by

said witness during his testimony in trial. Other than it, it has

no evidentary value.

9. Word “orally” also includes a statement recorded by

audio video also. Purpose of ‘to examine orally’ is to ensure

that I.O. may record whatever is said by witness to him or

relevant part of it and which has to be reduced into writing by

him to avoid any kind of coercion, misrepresentation or

mischief. A written statement send by post or deliver by

another person may not fall under ‘to examine orally’ but a

written statement submitted by witness himself to I.O. and I.O.

has assured its genuineness and same, if reduced in writing,

shall be a statement duly recorded under Section 161 Cr.P.C.

10. The word ‘may’ used in Section 161 Cr.P.C. gives

discretion to police officers to examine orally any person as

well as may reduce into writing any statement made to him,

therefore, he has discretion not to reduce into writing the

entire statement made to him or he may reduce into writing

only gist of statement. Sole object of statement under Section

161 Cr.P.C. is to investigate allegations and to prepare case

diary for purpose of consideration by Court at stage of

cognizance and summon as well as use to show contradictions

during trial.

11. In view of above discussion, there is no illegality in

taking a written statement of a witness under Section 161

Cr.P.C., when it was reduced in recording in case diary in

presence of witnesses as well as I.O. has made questions also

which are also reduced in writing along with answers. The I.O.

has taken sufficient precautions to ensure it to be a written

statement of witnesses only.

ALLAHABAD HIGH COURT

Case :- APPLICATION U/S 482 No. - 23696 of 2022

Applicant :- Faisal Ashraf

Opposite Party :- State Of U.P. And 2 Others

Author: Hon'ble Saurabh Shyam Shamshery,J.

Order Date -: December 22, 2022

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Whether court witnesses or defence witnesses can be contradicted by reference to their police statement recorded U/S s 161 of CRPC?

  As regards the evidence of DW 1 it was wrong to have allowed him to be cross-examined by the prosecution with reference to the statement which he had given to the police. Under Section 162, Cr. PC only witnesses on behalf of the prosecution could be contradicted by reference to their statements made to the police, and not court witnesses or defence witnesses. 

Supreme Court of India

Mrs. Shakila Khader And Ors. vs Nausheer Cama And Ors. on 10 March, 1975

Equivalent citations: AIR 1975 SC 1324, (1975) 4 SCC 122, 1975 (7) UJ 393 SC

Author: A Alagiriswami

Bench: A Alagiriswami, N Untwalia

Read full Judgment here: Click here

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Whether statement of victim recorded U/S 161 of CRPC can be treated as dying declaration if victim dies subsequently?

As far as the implication of Section 162(2) Code of Criminal Procedure is concerned, as a proposition of law, unlike the excepted circumstances under which Section 161 Code of Criminal Procedure statement could be relied upon, as rightly contended by the learned Senior Counsel for the Respondent, once the said statement though recorded Under Section 161 Code of Criminal Procedure assumes the character of dying declaration falling within the four corners of Section 32(1) of the Evidence Act, then whatever credence that would apply to a declaration governed by Section 32(1) should automatically deemed to apply in all force to such a statement though was once recorded Under Section 161 Code of Criminal Procedure. The above statement of law would result in a position that a purported recorded statement Under Section 161 of a victim having regard to the subsequent event of the death of the person making the statement who was a victim would enable the prosecuting authority to rely upon the said statement having regard to the nature and content of the said statement as one of dying declaration as deeming it and falling Under Section 32(1) of Evidence Act and thereby commend all the credence that would be applicable to a dying declaration recorded and claimed as such.

5. A bare perusal of the aforesaid provision when read with Section 32 of the Indian Evidence Act would reveal that a statement of a person recorded Under Section 161 would be treated as a dying declaration after his death. The observation of the High Court that the dying declarations Ex. 44 and 48 had no evidentiary value, therefore, is erroneous. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1192 of 2018 

Decided On: 10.10.2018

 Pradeep Bisoi Vs. The State of Odisha

Hon'ble Judges/Coram:

A.K. Sikri and Ashok Bhushan, JJ.

Citation: (2019) 11 SCC 500

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Whether evidence given by witness becomes inadmissible if police has read over his statement recorded U/S 161 of CRPC before he enters witness box?

he Full Bench answered the questions in paragraph 27 of the judgment at p. 60 thus (at p. 45) of Cri LJ):

"(1) The evidence of such witness does not become inadmissible; its probative value has to be judged in the circumstances of each case. No hard and fast rule can be laid down that in all such cases the evidence of such witness will be of no value whatsoever.

(2) Reading over of the police statement to the witness before he enters the box does not amount to contravention of the prohibition contained in Section 162(1). But the fact of reading over of the statement may affect the probative value of the evidence of the witness.

(3) Reading over of such a statement to the witness before he enters the box does not amount to use of such statement contrary to Section 162(1)."

5. I am in respectful agreement with the views expressed by the Gujarat High Court in the Full Bench decision aforementioned. As observed therein the user contemplated in Section 162 of the Code is actual user in Court proceedings and not user dehors the Court proceedings. The Court proceedings begin when the Court starts hearing a case and end when the Court stops the proceedings and adjourns them to some other day. The section does not prevent user of a police statement outside the Court proceedings. That is manifested from the words "be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation." The prohibition is only for using such statements in proceedings before Court. It was for that reason that the Privy Council in Zahiruddin's case (MANU/PR/0030/1947) (supra), held that evidence of the witness is inadmissible. In that case the evidence was rendered inadmissible for two reasons (1) he had previously given a signed statement to the police and (2) the statement was made use of by the witness while giving evidence to prompt his memory. The ratio of the decision of the Privy Council cannot therefore be extended to the present case. The result is that the testimonies of PWs. 1 and 3 do not become inadmissible for the reason that the police had read out the statement to them before they entered the witness box. There is thus no contravention of the prohibition contained in Section 162(1) of the Code. The reading of the statement to the witnesses does not therefore amount to use of such a statement contrary to the provision contained in Section 162(1) of the Code. Still the reading over of the statement may affect the probative value of the evidence of the witness which the Court has to judge in the circumstances of each case.

IN THE HIGH COURT OF KERALA

Cri. Appeal No. 462 of 1992

Decided On: 13.01.1995

 Ali  Vs.  State of Kerala

Hon'ble Judges/Coram:

K.P. Balanarayana Marar, J.

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Whether police can examine person named as accused in FIR U/S 161 of CRPC?

Therefore, the combined effect of these provisions can be summarized as follows:

Unless a person is Accused of an offence, he cannot claim the protection of Article 20(3) of the Constitution of India.

40. Such a person, viz., person who is named in the FIR, and therefore, the Accused in the eyes of law, can indeed be questioned and the statement is taken by the Police Officer. A confession, which is made to a Police Officer, would be inadmissible having regard to Section 25 of the Evidence Act. A confession, which is vitiated Under Section 24 of the Evidence Act would also be inadmissible. A confession unless it fulfills the test laid down in Pakala Narayana Swami (supra) and as accepted by this Court, may still be used as an admission Under Section 21 of the Evidence Act. This, however, is subject to the bar of admissibility of a statement Under Section 161 of the Code of Criminal Procedure. Therefore, even if a statement contains admission, the statement being one Under Section 161, it would immediately attract the bar Under Section 162 of the Code of Criminal Procedure.

41. Bar Under Section 162 Code of Criminal Procedure, no doubt, operates in regard to the statement made to a Police Officer in between two points of time, viz., from the beginning of the investigation till the termination of the same. In a case where statement containing not a confession but admission, which is otherwise relevant and which is made before the investigation commences, may be admissible. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 714 of 2019 

Decided On: 24.04.2019

 Dipakbhai Jagdishchandra Patel Vs.  State of Gujarat and Ors.

Hon'ble Judges/Coram:

Ashok Bhushan and K.M. Joseph, JJ.

Citation: AIR 2019 SC 3363

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