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

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Allahabad HC: Direction For Re-Recording Of Victim's Statement U/S 183 BNSS Can Be Given Only In 'Exceptional Circumstances

Ordinarily no routine direction for second statement under Section 183 B.N.S.S. can be given but under exceptional circumstances. High Court in exercise of it’s extraordinary jurisdiction, if justified to rectify injustice, may issue directions for recording second statement under Section 183 B.N.S.S. but it cannot be exercised as a general rule where victim alleges that her statement recorded under Section 183 B.N.S.S. was not read over to her or that she was not given an opportunity to confirm its correctness. The High Court can in appropriate cases exercise its extraordinary jurisdiction to direct a fresh recording of statement before the Magistrate and the power is not a routine or an automatic power but is exercised by High Court or Supreme Court to prevent abuse of process, to secure ends of justice or rectify grave procedural irregularities that could lead to miscarriage of justice.{Para 16}

HIGH COURT OF JUDICATURE AT ALLAHABAD

CRIMINAL MISC. WRIT PETITION No. - 3822 of 2026

Kirti Verma Vs  State of U.P.

HON'BLE RAJIV GUPTA, J.

HON'BLE ACHAL SACHDEV, J.

Per: Hon’ble Achal Sachdev, J.

Judgement Delivered on 26.02.2026

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Supreme Court: The Magistrate recording S 164 CRPC statement is usually summoned only if the defence challenges the manner of recording/voluntariness, or to clarify disputed aspects of compliance

PW-3 and PW-4 have deposed that they were under threat

from the concerned Investigating Officer who was present along

with them before the Magistrate. The concerned Investigating

Officer has been examined as PW-8 in the present case and

during his examination, there is not even a suggestion from the

appellants to the effect that he was present along with PW-3 and

PW-4 at the time of recording their statement under Section 164

or to the effect that he had threatened them to give incriminating

statements against the appellants. Furthermore, the concerned

Magistrate could have been examined as a witness in the present

matter to clear the controversy on this aspect and for unexplained reasons, he was never called for examination especially when a completely hostile version was being provided by the witnesses qua the proceedings which were conducted before him. The appellants failed to place any material on record to justify the allegation of threat and as discussed above, the statements of PW-3 and PW-4 recorded under Section 164 CrPC reflected the correct version of the events that transpired on the fateful day. {para 30}

Ratio: The Magistrate is usually summoned only if the defence challenges the manner of recording/voluntariness, or to clarify disputed aspects of compliance (warning, voluntariness, memorandum, etc.). 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 122 OF 2013

VIJAYA SINGH & ANR. Vs STATE OF UTTARAKHAND 

Author: SATISH CHANDRA SHARMA, J.

Citation: 2024 INSC 905

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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.

---

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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Supreme Court: How to appreciate evidence of witnesses who depose that their statement U/S 164 of CRPC was obtained by investigating officer by threat?

The jurisprudence concerning a statement Under Section 164 Code of Criminal Procedure is fairly clear. Such a statement is not considered as a substantive piece of evidence, as substantive oral evidence is one which is deposed before the Court and is subjected to cross- examination. However, Section 157 of Indian Evidence Act, 18723 makes it clear that a statement Under Section 164 Code of Criminal Procedure could be used for both corroboration and contradiction. It could be used to corroborate the testimonies of other witnesses. In R. Shaji v. State of Kerala   MANU/SC/0087/2013 : 2013:INSC:72, this Court discussed the two-fold objective of a statement Under Section 164 Code of Criminal Procedure as:

15. So far as the statement of witnesses recorded Under Section 164 is concerned, the object is two fold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement, and secondly, to tide over immunity from prosecution by the witness Under Section 164. A proposition to the effect that if a statement of a witness is recorded Under Section 164, his evidence in Court should be discarded, is not at all warranted...

The Court also recognized that the need for recording the statement of a witness Under Section 164 Code of Criminal Procedure arises when the witness appears to be connected to the Accused and is prone to changing his version at a later stage due to influence. The relevant para reads thus:

16.... During the investigation, the Police Officer may sometimes feel that it is expedient to record the statement of a witness Under Section 164 Code of Criminal Procedure. This usually happens when the witnesses to a crime are clearly connected to the Accused, or where the Accused is very influential, owing to which the witnesses may be influenced... {Para 27}

28. Considering the conceptual requirement of recording a statement before a Judicial Magistrate during the course of investigation and the utility thereof, as prescribed in Section 157 of Evidence Act, it could be observed that a statement Under Section 164, although not a substantive piece of evidence, not only meets the test of relevancy but could also be used for the purposes of contradiction and corroboration. A statement recorded Under Section 164 Code of Criminal Procedure serves a special purpose in a criminal investigation as a greater amount of credibility is attached to it for being recorded by a Judicial Magistrate and not by the Investigating Officer. A statement Under Section 164 Code of Criminal Procedure is not subjected to the constraints attached with a statement Under Section 161 Code of Criminal Procedure and the vigour of Section 162 Code of Criminal Procedure does not apply to a statement Under Section 164 Code of Criminal Procedure. Therefore, it must be considered on a better footing. However, relevancy, admissibility and reliability are distinct concepts in the realm of the law of evidence. Thus, the weight to be attached to such a statement (reliability thereof) is to be determined by the Court on a case-to-case basis and the same would depend to some extent upon whether the witness has remained true to the statement or has resiled from it, but it would not be a conclusive factor. For, even if a witness has retracted from a statement, such retraction could be a result of manipulation and the Court has to examine the circumstances in which the statement was recorded, the reasons stated by the witness for retracting from the statement etc. Ultimately, what counts is whether the Court believes a statement to be true, and the ultimate test of reliability happens during the trial upon a calculated balancing of conflicting versions in light of the other evidence on record.

29. In the present case, the statements of PW-3 and PW-4 were recorded by the Judicial Magistrate on 09.10.2003 i.e. almost 25 days after the incident. Thus, their statements were recorded after the passage of a considerable time and could not be termed as hasty statements as there was sufficient cooling period for the witnesses to think over and contemplate the consequences of their statements. During this entire period, both PW-3 and PW-4 remained with their family and it is not their case that they were kept under influence or were tutored during this period. Pertinently, PW-1 has also deposed that on certain occasions, PW-3 had accompanied the deceased Devaki to her maternal home, which indicates that PW-3 had a sense of attachment with the deceased and the same could have been the reason for giving a statement against her own brother and mother. In fact, the retraction of these statements by PW-3 and PW-4 before the Court appears to be a result of tutoring and manipulation as the said witnesses could have easily been won over by their family members during the intervening period. Furthermore, the witnesses have admitted that the statements were signed by them and there is no suggestion to the effect that the witnesses could not have understood the statements. The statements have been certified by the concerned Magistrate to the effect that they have been read by the witnesses and their consequences have been explained to the witnesses.

30. PW-3 and PW-4 have deposed that they were under threat from the concerned Investigating Officer who was present along with them before the Magistrate. The concerned Investigating Officer has been examined as PW-8 in the present case and during his examination, there is not even a suggestion from the Appellants to the effect that he was present along with PW-3 and PW-4 at the time of recording their statement Under Section 164 or to the effect that he had threatened them to give incriminating statements against the Appellants. Furthermore, the concerned Magistrate could have been examined as a witness in the present matter to clear the controversy on this aspect and for unexplained reasons, he was never called for examination especially when a completely hostile version was being provided by the witnesses qua the proceedings which were conducted before him. The Appellants failed to place any material on record to justify the allegation of threat and as discussed above, the statements of PW-3 and PW-4 recorded Under Section 164 Code of Criminal Procedure reflected the correct version of the events that transpired on the fateful day.

31. Having said so, we deem it fit to observe that a statement Under Section 164 Code of Criminal Procedure cannot be discarded at the drop of a hat and on a mere statement of the witness that it was not recorded correctly. For, a judicial satisfaction of the Magistrate, to the effect that the statement being recorded is the correct version of the facts stated by the witness, forms part of every such statement and a higher burden must be placed upon the witness to retract from the same. To permit retraction by a witness from a signed statement recorded before the Magistrate on flimsy grounds or on mere assertions would effectively negate the difference between a statement recorded by the police officer and that recorded by the Judicial Magistrate. In the present matter, there is no reasonable ground to reject the statements recorded Under Section 164 Code of Criminal Procedure and reliance has correctly been placed upon the said statements by the courts below.

  IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 122 of 2013

Decided On: 25.11.2024

Vijaya Singh and Ors. Vs. State of Uttarakhand

Hon'ble Judges/Coram:

Bela M. Trivedi and S.C. Sharma, JJ.

Author:  S.C. Sharma, J.

Citation:  MANU/SC/1259/2024.

Read full Judgment here: Click here.

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Supreme Court: S.164 CrPC Statement Recorded By Judicial Magistrate Can't Be Retracted By Witness On Flimsy Grounds

Having said so, we deem it fit to observe that a statement Under Section 164 Code of Criminal Procedure cannot be discarded at the drop of a hat and on a mere statement of the witness that it was not recorded correctly. For, a judicial satisfaction of the Magistrate, to the effect that the statement being recorded is the correct version of the facts stated by the witness, forms part of every such statement and a higher burden must be placed upon the witness to retract from the same. To permit retraction by a witness from a signed statement recorded before the Magistrate on flimsy grounds or on mere assertions would effectively negate the difference between a statement recorded by the police officer and that recorded by the Judicial Magistrate. In the present matter, there is no reasonable ground to reject the statements recorded Under Section 164 Code of Criminal Procedure and reliance has correctly been placed upon the said statements by the courts below. {Para 31}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 122 of 2013

Decided On: 25.11.2024

Vijaya Singh and Ors. Vs. State of Uttarakhand

Hon'ble Judges/Coram:

Bela M. Trivedi and S.C. Sharma, JJ.

Author:  S.C. Sharma, J.

Citation:  MANU/SC/1259/2024.

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Whether the court can convict accused based on evidence of Judicial Magistrate who recorded statement of victim U/S 164 of CRPC if victim has turned hostile?

Even Supreme Court in case of Brij Nath Sah v. State of Bihar MANU/SC/0344/2010 : 2010:INSC:255 : (2010) 6 SCC 736 has reiterated same principles. The Hon'ble Apex Court has held that a statement under Section 164 is not substantive evidence and can be utilized only to corroborate or contradict the witness vis-a-vis statement made in court. {Para 68}

 70. Trial Court was wrong in convicting the Appellant by taking recourse to statement under Section 164 of the Criminal Procedure Code. On the basis of the evidence of the learned Magistrate and the medical evidence, statement recorded under Section 164 of the Code can be treated as previous statement only. 

71. So if we look at the weightage and value of evidence of judicial officer from all the angles, we may find that his evidence cannot be said direct on the point of happening of the incident. Because he is not giving the evidence on the basis of facts seen by him. His evidence is on the point of what he has heard through the mouth of the victim.

72. So for what purpose this provision is included in the Code. The mechanism created by the Code is investigation carried out by the police including recording the statement of the witnesses. Recording statement through the Magistrate is also a part of investigation. Such statement stands on higher pedestal than the police statement. Still we can not attach more value than recognized by the law. Such statement falls within the category of 'previous statement' only. Its use is permissible in the mode prescribed in the Evidence Act only.

73. Does it mean to say that this statement can be the basis for conviction just because it is recorded by judicial official and oath is administered? Answer is 'No'. The reason is this statement is not recorded in the presence of the accused and there is no opportunity of the cross-examination to the maker of the statement when such statement is recorded by the Magistrate. So ultimately, when Magistrate gives evidence, his evidence is not the evidence about the witnessing the incident but it is evidence of facts stated before him by the victim.

IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 990 of 2019

Decided On: 09.05.2024

Deelip Tatoba Raje Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.M. Modak, J.

Citation: MANU/MH/3173/2024.

Read full Judgment here: Click here.

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Whether trial court is justified in convicting Appellant only on basis of corroborative evidence particularly when there is no substantive evidence?

Criminal - Conviction - Appeal against - Sections 376(2)(f) of Indian Penal Code, 1860 (IPC), Sections 3, 4, 8 and 12 of Protection of Children from Sexual Offences Act, 2012 (POCSO Act), Section 164 of Code of Criminal Procedure, 1973 (CrPC) and Section 157 of Indian Evidence Act, 1872 - Present appeal filed to challenge judgment of conviction passed against appellant herein for commission of offence punishable under Sections 376(2)(f) of IPC and Sections 3, 4, 8 and 12 of POCSO Act - Whether trial court is justified in convicting Appellant only on basis of corroborative evidence particularly when there is no substantive evidence - Held, statement under Section 164 of CrPC is not substantive evidence - Same can be utilized only to corroborate or contradict witness vis-a-vis statement made in court - Victim's reiterated statement can be used for corroboration under Section 157 of Evidence Act - If there are discrepancies between statement and oral evidence, it can be used for contradiction by defense - Likewise, if victim recants statement, it can be used for cross-examination by prosecution, as done in this case - Judicial officer's evidence cannot be relied upon to convict accused, as witness did not support prosecution's case on crucial points - Trial court cannot solely convict accused based on presumption -Presumptions only apply when foundational facts are established, such as victim's age or commission of acts specified under POCSO Act - In this case, foundational facts are not proven - Evidence from Section 164 of CrPC statements and medical case papers cannot be considered for drawing inferences about accused's involvement - Trial court erred in relying on presumption under Section 29 of POCSO Act - Impugned judgment of conviction set aside - Appeal allowed.[68],[74],[75],[88],[89],[90]

 IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 990 of 2019

Decided On: 09.05.2024

Deelip Tatoba Raje Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.M. Modak, J.

Citation: MANU/MH/3173/2024.

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Procedure for recording confession of accused by Magistrate as per Criminal Manual

 Confessions

17. Accused persons willing to make a confession should be taken for the purpose before a judicial magistrate and ,whenever possible ,before the magistrate who will not eventually try the case. Any Metropolitan Magistrate or Judicial Magistrate may ,whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under the code of Criminal Procedure ,1973 or any other law for the time being in force ,or at any time afterwards before the commencement of the inquiry or trial ,as required by Section 164 of the Code of Criminal Procedure 1973.

18. The following instructions are issued for the guidance of the Magistrate recording confessions and statement under section 164 of the Code of Criminal Procedure 1973. They are not intended to fetter the discretion given by the law to Magistrates. The only object with which they are issued is to indicate generally the manner in which the discretion may be exercised.:-

    (i) In the absence of exceptional reasons, confessions should ordinarily be recorded in open Court and during court hours.

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Under which circumstances the court can held that victim was minor even though no ossification test was conducted?

 There was no ossification test conducted in this case, however, this question would come when the girl is on the border line. When there is still margin of four years, it cannot be said that the girl was not a "child" as defined under Section 2(d)of the POCSO Act. The father of the victim who has the knowledge of the date of birth of the daughter, his testimony would be also important in that respect and, therefore, in this case the prosecution had proved that the victim was a child.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Appeal No. 718 of 2016

Decided On: 03.10.2023

 Sunil  Vs.  The State of Maharashtra

Hon'ble Judges/Coram:

Vibha Kankanwadi and Abhay S. Waghwase, JJ.

Author: Vibha Kankanwadi, J.

Citation: MANU/MH/3996/2023.

Read full Judgment here: Click here

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Whether the court can rely on identification of accused by victim even if she has not stated name of accused in her statement U/S 164 of CRPC?

The identification of the accused is the important point raised on behalf of the accused, however, only a stray suggestion or question was asked in the cross-examination. It was not tried to be elaborated and it was not extracted as to whether she had seen the accused prior to the incident or not. She was certain in saying that the boy was from out of village and she is unable to tell his name and after the incident he ran away. Only on the basis of this statement, we cannot come to the conclusion that the identification of the accused by the victim is false or inadmissible. A witness may not be knowing name of the accused, but thereafter with the description or some other particulars like relative of somebody to whom the witness is knowing or would have seen residing in a particular place are the criteria with which the identity can be established. Here, no questions were asked on that point, but the fact is that the incident is alleged to have taken place at 8.00 a.m. i.e. the broad daylight and she had sufficient time to recognize the accused. Rather it has been extracted in her cross-examination that she had stated about the incident to her brother after returning home and after her parents reached there, they went to the police station on the same day. That means what has been left out in the examination-in-chief has been extracted in the cross-examination. Therefore, we do not find any fault as regards the identification of the accused. Her identification before the Court i.e. in the substantial evidence carries importance. No doubt, in her statement under Section 164 of the Code of Criminal Procedure, she has not stated the name of the accused, but at that time, the accused was not before the girl and, therefore, the identification is important, rather than the name. {Para 9}

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Appeal No. 718 of 2016

Decided On: 03.10.2023

 Sunil  Vs.  The State of Maharashtra

Hon'ble Judges/Coram:

Vibha Kankanwadi and Abhay S. Waghwase, JJ.

Author: Vibha Kankanwadi, J.

Citation: MANU/MH/3996/2023.

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Whether the court can acquit an accused if police has not got statement of witness recorded as per S 164 of CRPC?

 Non-examination of the statement Under Section 164 Code of Criminal Procedure also has no relevance or bearing to the findings and conclusions arrived at by the courts below. It was for the Investigating Officer to have got the statement Under Section 164 Code of Criminal Procedure recorded. If he did not think it necessary in his wisdom, it cannot have any bearing on the testimony of PW-1 and the other material evidence led during trial. {Para 22}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 598-600 of 2013, 337 of 2014 and 745-748 of 2015

Decided On: 15.02.2023

Ajai and Ors.  Vs. The State of Uttar Pradesh

Hon'ble Judges/Coram:

B.R. Gavai and Vikram Nath, JJ.

Author: Vikram Nath, J.

Citation: MANU/SC/0127/2023.

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Important Supreme Court and Bombay HC Judgments on POSCO Act (Part 1)

 

1) Supreme court guidelines to Judges about Judgments writing in sexual offences.

APARNA BHAT & ORS. Vs STATE OF MADHYA PRADESH 

Author: S. RAVINDRA BHAT, J.

Dated:March 18, 2021.

https://www.lawweb.in/2021/03/supreme-court-guidelines-to-judges.html

2) Guidelines of supreme court for grant of compensation to child victim under POCSO Act.

NIPUN SAXENA Vs  UNION OF INDIA 

Dated: SEPTEMBER 05, 2018

https://www.lawweb.in/2018/10/guidelines-of-supreme-court-for-grant.html

3) Supreme Court: Copy of statement under section 164 Cr. P. C. of victim not to be given to accused until filing of chargesheet.

State of Karnataka  Vs. Shivanna @ Tarkari Shivanna

[Special Leave Petition (CRL.) No. 5073/2011]

Dated; 25 April 2014

https://www.lawweb.in/2014/05/latest-guidelines-of-supreme-court-in.html

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Whether the court can convict accused on testimony of one witness even if her statement is not recorded U/S 164 of CRPC?

 Nonexamination of the statement under section 164 CrPC also has no relevance or bearing to the findings and conclusions arrived at by the courts below. It was for the Investigating Officer to have got the statement under section 164 CrPC recorded. If he did not think it necessary in his wisdom, it cannot have any bearing on the testimony of PW1 and the other material evidence led during trial. {Para 22}

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.598600 OF 2013; 

AJAI ALIAS AJJU ETC. ETC. versus THE STATE OF UTTAR PRADESH

Coram: B.R. GAVAI; J., VIKRAM NATH; J.

Author: VIKRAM NATH, J.

Dated: FEBRUARY 15, 2023

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Whether Magistrate can summon a person Not Named In Police Report Or FIR as per S 190 (1)(b) of CRPC?

 In the present case, the name of the accused had transpired from the statement made by the victim under Section 164 of the Code. In the case of Dharam Pal (supra), it has been laid down in clear terms that in the event the Magistrate disagrees with the police report, he may act on the basis of a protest petition that may be filed and commit the case to the Court of Session. This power of the Magistrate is not exercisable only in respect of persons whose names appear in column (2) of the chargesheet, apart from those who are arraigned as accused in the police report. In the subject-proceeding, the Magistrate acted on the basis of an independent application filed by the de facto complainant. If there are materials before the Magistrate showing complicity of persons other than those arraigned as accused or named in column 2 of the police report in commission of an offence, the Magistrate at that stage could summon such persons as well upon taking cognizance of the offence. As we have already discussed, this was the view of this Court in the case of Raghubans Dubey (supra). Though this judgment dealt with the provisions of the 1898 Code, this authority was followed in the case of Kishun Singh (supra). For summoning persons upon taking cognizance of an offence, the Magistrate has to examine the materials available before him for coming to the conclusion that apart from those sent up by the police some other persons are involved in the offence. These materials need not remain confined to the police report, charge sheet or the F.I.R. A statement made under Section 164 of the Code could also be considered for such purpose. {Para 21}

IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION

 CRIMINAL APPEAL NO. 443 OF 2022;

 NAHAR SINGH Vs THE STATE OF UTTAR PRADESH & ANR.

Author: ANIRUDDHA BOSE, J.

Coram: VINEET SARAN; ANIRUDDHA BOSE, JJ.

Dated: 16th March, 2022 

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Whether the court can discharge the accused if there is discrepancy between FIR and statement U/S 164 of CRPC?

The learned counsel for the petitioner emphatically argued that the FIR does not disclose offence under Section 376 of the IPC. The FIR is the initial document. In her statement given by the prosecutrix under Section 164 of the Code of Criminal Procedure (CrPC) after the prosecutrix attained majority, she categorically made statements which tantamount to offence under Section 376 of the IPC. Discrepancies between the FIR and any subsequent statement under Section 164 of the CrPC may be a defence. However, the discrepancies cannot be a ground for discharge without initiation of trial.There is no infirmity in the order of the High Court rejecting the criminal revisonal application.

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 9552/2021

HAZRAT DEEN  Vs THE STATE OF UTTAR PRADESH 

Date : 06-01-2022 This petition was called on for hearing today.

CORAM : HON'BLE MS. JUSTICE INDIRA BANERJEE

HON'BLE MR. JUSTICE J.K. MAHESHWARI

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Whether the evidence recorded U/S 164 of Cr.P.C. can be considered as an evidence U/S 35 of the POCSO Act?

 Whether the evidence which has been recorded under Section 164 of Cr.P.C. can be considered to be an evidence under Section 35 of the POCSO Act?

37. Although, learned counsel for the petitioner placed reliance on Shivanna @ Tarakari Shivanna to contend that the statements made under Section 164 of Cr.P.C. has to be construed as substantive evidence, we do not think that the said contention can be accepted in view of the judgments of the Hon'ble Supreme court referred to above and particularly the latest judgment in Somasundaram @ Somu wherein the earlier judgments on the point have been considered. We have also already noted, evidence stricto senso is what is recorded by the Special Court before itself and cannot be equated with the statement of the victim under Section 164 of Cr.P.C.

38. In this context, it would be useful to refer to one of the earlier judgments of the Privy Council on the point in the case of Mamand v. Emperor, [AIR 1946 PC 45], wherein it has been observed that a statement under Section 164 Cr.P.C. cannot be treated as substantive evidence of the facts stated. Such a statement can be used to discredit the evidence of the witness but not for any other purpose. Further, where the Court in view of the statement under Section 164 Cr.P.C, considers the witness to have been won over by the defence, the correct attitude for the Court to adopt is to entirely ignore his evidence.

39. In view of the aforesaid discussion, we answer question No. 1 by holding that the statement recorded under Section 164 of Cr.P.C. cannot be considered to be evidence under Section 35 of the POCSO Act.

 In the High Court of Karnataka(Principal Bench at Bengaluru)

(Before B.V. Nagarathna and M.G. Uma, JJ.)

Criminal Petition No. 2951/2020:

Hanumantha Mogaveera Vs State of Karnataka, 

Decided on April 23, 2021

Citation: 2021 SCC OnLine Kar 12300 : (2021) 3 KCCR 1897 (DB)

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What precaution Magistrate should take if he is recording the statement of victim U/S 164 of CRPC for the second time?

In the present case neither the learned POSCO Judge, who ordered for recording  the second statement of the victim under Section 164 Cr.P.C. nor the learned Magistrate, who recorded the second statement on 13.12.2017 has taken due care or precaution which necessitated the recording of second statement under Section 164 Cr.P.C. of the victim and also not confronted the victim of her earlier statement under Section 164 Cr.P.C. {Para 25}

2 6 . It is true that law does not bar recording the statement of the victim underSection 164 Cr.P.C. twice, but at the same time the second statement should not be recorded to negate or defeat the earlier statement of the victim whether it is in favour or against the accused otherwise the sanctity of the statement under Section 164 Cr.P.C. will loose its value. Hence, the learned Magistrate while recording statement of the victim under Section 164 Cr.P.C. should be very cautious and vigilant and

record the statement strictly in accordance with provision of Section 164 Cr.P.C. explaining the victim about the pros and cons of his or her statement, as the case may be, as the said is administered to the victim on oath in order to give its sanctity during the course of investigation.

IN THE HIGH COURT OF ALLAHABAD

Criminal Misc. Writ Petition No. 2027 of 2018

Decided On: 19.03.2018

 Manisha Sahu  Vs. State of U.P. and Ors.

Hon'ble Judges/Coram:

Ramesh Sinha and K.P. Singh, JJ.

Equivalent Citation: 2018(6)ADJ250, 2018 (104) ALLC C 53, MANU/UP/2581/2018

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Questions and answers on law Part 24

 Q 1:- Whether court can direct attachment of property of Judgment debtor if court passes decree for rent or mesne profits but rent or mesne profits are not determined?

Ans:- O 21 R 42.  of CPC Attachment in case of decree for rent or mesne profits or other matter, amount of which to be subsequently determined.—Where a decree directs an inquiry as to rent or mesne profits or any other matter, the property of the judgment-debtor may, before the amount due from him has ascertained, be attached, as in the case of an ordinary decree for the payment of money.

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