Bombay HC: Whether the court can convict accused based on S 164 CRPC statements of prosecution witnesses?

 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. There are certain differences recognized by the legislatures in the statement under Section 161 on one hand and statement under Section 164 of the Code on the other hand. They can be summarized as follows :--

SECTION 161: statement before the Police need not be signed

SECTION 164: the statement before the Magistrate is signed.However this is not so in statement before the Police. Prior to recording the statement, learned Magistrate can administer the oath to the maker. This is not the case herein. the statement under Section 164 stands on higher pedestal {Para 70}

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.

• Use of such statement

74. If the victim reiterates what she has stated earlier, such statement can be used for corroboration under Section 157 of the Evidence Act. If there is variance in between the particulars stated in such statement and the oral evidence, that statement can be used for the purpose of the contradiction by the defence. So also if the victim has resiled from the statement, it can be used for cross-examination by prosecution. In this case, prosecution has availed of this opportunity. The victim has disowned the contents.

 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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Supreme Court: Material omissions amounting to contradiction and material improvement in the evidence of prosecution witness, the court should disbelieve prosecution evidence

14. Material Contradictions:

While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The Trial Court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate Court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide: State Represented by Inspector of Police v. Saravanan and Anr.   MANU/SC/8113/2008 : AIR 2009 SC 152).

15. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide: State of Rajasthan v. Rajendra Singh   MANU/SC/0446/1998 : (2009) 11 SCC 106).

16. The discrepancies in the evidence of eye-witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that prosecution proved its case beyond reasonable doubt. (Vide: Mahendra Pratap Singh v. State of Uttar Pradesh   MANU/SC/0279/2009 : (2009) 11 SCC 334).

 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: 2011 All M R (Cri.) 288 (SC),2010 INSC 770, MANU/SC/0947/2010.

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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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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.

Read full Judgment here: Click here.

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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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Whether defence counsel can make out contradictions from statement made in FIR without putting its contents to informant at the time of his evidence?

Some contradictions were sought to be pointed out in the statement as given in the First Information Report and in the evidence of the witness P.W. 11 but we do not think it is open to the learned advocate to comment upon it because none of those contradictions have been put to the witness at the time of his giving evidence. According to the F.I.R. it would appear that Indradeo Singh accompanied by Chait Ahir, Vikrama Singh, Musan Pandey, Billar Ahir and Mongru Ahir resident of the village went there and forbade the accused persons from cutting paddy crops from his field, but the accused persons did not listen to them. Indradeo Singh made many entreats requested them not to commit such high handedness nor did he say Indradeo Singh fell in the field of Sumer Singh. In the first place it may be noticed that F.I.R. is not a substantial piece of evidence. It is an information of a cognizable offence given under Section 154 of the Criminal Procedure Code and if there is any statement made therein it can only be used for the purposes of contradicting and discrediting a witness under Section 145 of the Evidence Act. In the second place the statement given by the informant need not necessarily be an eye witness account of what he has actually seen. There were others who had gone along with him who could have furnished him with information as to what transpired in so far as it was in their knowledge. If these aspects had been put to P.W. 11, he would have had an opportunity of explaining the statement made in the F.I.R. but since that opportunity was not given, any comment based on the statement given by P.W. 11 in the F.I.R. would be without effect.

{Para 7}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 279 of 1968

Decided On: 21.04.1972

Nanhku Singh and Ors. Vs. State of Bihar

Hon'ble Judges/Coram:

K.K. Mathew and P. Jaganmohan Reddy, JJ.

Author: P. Jaganmohan Reddy, J.

Citation: MANU/SC/0185/1972.

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Can the court convict the accused based on the contradictions in the evidence of the witnesses proved through evidence of Investigating officer?

 A daughter may not share everything with the mother but she would definitely share her real feelings and emotions to the sister. The conduct of PW 4 is also not free from doubt as she also did not want to disclose the truth for the reasons best known to her. When she resiled from her statement, learned APP had drawn her attention to the relevant portions of her statement which are marked as 'A', 'B' and 'C' and are proved through the testimony of the Investigating Officer, PW 15-Ramchandra Dashrath Jadhav who was a senior Police Inspector attached to Khar police station at the relevant time. Those contradictions are proved at Exhibit 14-A to 14-C.

Portion marked 'A' which is proved as Exhibit 14-A reads thus;

"I found while checking Whatsapp on my mobile that the victim had made a call to Ramesh Vavekar (appellant) on 25.07.2015 and I told this fact to the police officer of Unit no. 9."

Portion marked B which is proved as Exhibit 14-B reads thus;

On 10.10.2015 when discussion was going on in context with my sister (victim) at that time my younger brother PW 2 aged 11 years told that prior to 6 months when there was no one at home he saw the victim talking with Ramesh Vavekar and he had seen him coming to our house for 4 to 5 times to meet the victim, so also prior to one year when PW 2 went to play with his friend in 'X' chawl at that time, the victim came to meet Ramesh in 'X' Chawl, Narli pada, at that time the mother of Ramesh (appellant) asked the victim to not to talk with Ramesh and on that count mother of Ramesh (appellant) had beaten the victim."

Portion marked C which is marked at Exhibit 14-C which reads thus,

Prior to 1 and ½ year, Ramesh was frequently calling me on my phone and expressed his wish to have friendship with me. At that time I replied him that I was not acquainted with him and why should I do friendship with him. At that time I lodged report against him with the police. Then I suspected that the victim was having love affair with Ramesh and he had impregnated her." {Para 32}

33. Cumulative effect of these proved contradictions would definitely indicate and are relevant that the appellant had been conversing with the victim and had also tried to befriend PW 4. In the given circumstances, it appears quite probable and believable that this witness had actually made such statement before the police.

It is a settled proposition of law that the evidence of a hostile witness should not be totally discarded as it can be accepted partially. It is well known that witnesses can not be a branded liars in toto and their testimony rejected outright even if parts of their statements are demonstrably incorrect or doubtful. We do not apply the maxim falsus in uno, falsus in omnibus. In view of proved contradictions, evidence of PW 2 and PW 3 can be accepted to the extent of their versions found to be dependable.

 IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 1430 of 2018

Decided On: 24.02.2022

 Ramesh Tukaram Vavekar  Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Sadhana S. Jadhav and Prithviraj K. Chavan, JJ.

Author: Prithviraj K. Chavan, J.

Citation: MANU/MH/0574/2022.

Read full Judgment here: Click here

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Whether injured person can be contradicted with his dying declaration treating it as his previous statement?

 The Executive Magistrate had purportedly recorded a statement of P.W.1 Jagannath in the form of a dying declaration. In view of Section 157 of the Indian Evidence Act, 1872 the so-called dying declaration can be treated as a former statement made by P.W.1 and, therefore, the same can be used for contradicting the witness. When P.W.1 Jagannath was confronted with a portion of hisstatement at Ex.D-2, he accepted that the statement does not refer to the presence of accused nos.1, 3, 7, 8 and 9. {Para 7}

 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.162 of 2010

Ramcharan (Dead) & Anr. Vs State of Madhya Pradesh 

Author: Abhay S. Oka, J.

Dated: December 07, 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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Supreme Court: In Motor Accident Claim, evidence Recorded Before Tribunal To Be Given Weightage Over Contents Of FIR In Case Of Contradiction

 It is clear from the evidence on record of PW–1 as well as PW–3 that the Eicher van which was going in front of the car, has taken a sudden right turn without giving any signal or indicator. The evidence of PW–1 & PW–3 is categorical and in absence of any rebuttal evidence by examining the driver of Eicher van, the High Court has rightly held that the accident occurred only due to the negligence of the driver of Eicher van. It is to be noted that PW–1 herself travelled in the very car and PW–3, who has given statement before the police, was examined as eye–witness. In view of such evidence on record, there is no reason to give weightage to the contents of the First Information Report. If any evidence before the Tribunal runs contrary to the contents in the First Information Report, the evidence which is recorded before the Tribunal has to be given weightage over the contents of the First Information Report. {Para 8}

Supreme Court

JUSTICE R. SUBHASH REDDY JUSTICE HRISHIKESH ROY

National Insurance Company Ltd. Vs. Chamundeswari & Ors.

CIVIL APPEAL NO. 6151 OF 2021

1st October 2021

Author: R.SUBHASH REDDY, J.

Citation: 2021 ALL SCR (ONLINE) 523

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Whether the Court can disbelieve the evidence of the injured witness if there is a minor discrepancy in his evidence?

  We also do not find any substance in the argument of the

learned counsel that there are major contradictions in the deposition

of PWs18 and 19. The contradictions which are sought to be

projected are minor contradictions which cannot be the basis to

discard their evidence. The judgment of this Court in the case of

Mohar4 relied on by the learned counsel for the respondentState

supports the case of the prosecution. In the aforesaid judgment, this

Court has held that convincing evidence is required, to discredit an

injured witness. Para 11 of the judgment reads as under :

“11. The testimony of an injured witness has its own

efficacy and relevancy. The fact that the witness sustained

injuries on his body would show that he was present at the

place of occurrence and has seen the occurrence by

himself. Convincing evidence would be required to

discredit an injured witness. Similarly, every discrepancy

in the statement of a witness cannot be treated as fatal. A

discrepancy which does not affect the prosecution case

materially cannot create any infirmity. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 216 OF 2015

Kalabhai Hamirbhai Kachhot Vs State of Gujarat 

Author: R. Subhash Reddy, J.

Dated:April 28, 2021.

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How to appreciate evidence if there is variation in the narration of incident by two witnesses or between two statements of the same witness?

 In the cross-examination, this witness has stated that he

stated before the police that Ananda was in a sitting position and

accused Nos. 2 and 3 had caught him but it is not there in the

statement. Learned counsel Shri Ghanekar argued that it shows that

this evidence is in the nature of improvement and, therefore, cannot be considered. The analysis of the statement under Section 161 of Cr.P.C. of this witness reveals that this witness has stated that in the auto rickshaw accused Nos. 2 and 3 and two more persons were sitting and the deceased Ananda was sleeping in the auto rickshaw in injured condition. This clearly shows that this witness has stated about the presence of accused Nos. 2 and 3 and two more persons and about presence of the deceased in the injured condition in the auto rickshaw.

It is true that whatever PW 3 has stated in the evidence does not appear in verbatim in the statement before the police. Mere variation between the statement under Section 161 of Cr.P.C. and deposition before the Court in narration of the incident would not amount to contradiction.

It has been held in the case of Rammi alias Rameshwar vs. State of

Madhya Pradesh reported in 1999 Cri.L.J. 4561 thus :-

24. When eye-witness is examined at length it is

quite possible for him to make some discrepancies.

No true witness can possibly escape from making

some discrepant details. Perhaps an untrue

witness who is well tutored can successfully make

his testimony totally non-discrepant. But Courts

should bear in mind that it is only when

discrepancies in the evidence of a witness are so

incompatible with the credibility of his version that

the Court is justified in jettisoning his evidence.

But too serious a view to be adopted on mere

variations falling in the narration of an incident

(either as between the evidence of two witnesses

or as between two statements of the same witness)

is an unrealistic approach for judicial scrutiny.  {Para 41}

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 268 OF 2014

 Shyamsundar Vithal Pawle Vs The State of Maharashtra 

CORAM : S. V. Gangapurwala &

M.G. Sewlikar, JJ.

PRONOUNCED ON : 11th September, 2020.

JUDGMENT : ( PER M. G. SEWLIKAR, J.)

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Whether accused can contradict or discredit the complainant by confronting him with his verification U/S 200 of CRPC?

While taking cognizance of an offence, the Magistrate examines the complaint on oath and the witnesses present if any. Then, the Magistrate reduces to writing only "the substance of such examination". This substance aids the Magistrate to form a prima facie opinion about the case. In other words, it is to discover the truth or otherwise of the allegations made. It is for deciding the question purely from the complainant's viewpoint, with no reference to the possible defence. Thus, the procedure under Section 200 Cr.P.C. is non- adversarial And what is recorded is not the complainant's verbatim statement, only the substance or gist. Therefore, it is not a piece of substantial evidence to be used to contradict or discredit the complainant.

IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 657 of 2018

Decided On: 23.07.2019

 Doshi Brothers Vs.  The State of Maharashtra and Ors.

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How to appreciate evidence if witness is cross examined for five years?

Much has been argued on the statement of Kishan Lal Tapadia DW-1 the Power of Attorney Holder of the Secretary of the Maheswari Kunj Nyas Trust to submit that there are many contradictions in his statement and that he has accepted the possession of the appellants over the suit property as their residence and further he has deposed against the documentary evidences filed by the respondents. Learned counsel for the appellants has taken the Court through several pages of the cross examination of D.W.-1 to impress upon the court that the respondents have failed to prove their case of suit property being Dharmshala.

273. To deal with the submissions of learned counsel for the appellant in this regard, it would be relevant to note that D.W.-1 was cross examined for approximately the period of five years from 07.02.2001 to 17.05.2005. His cross examination runs in more than 500 pages of paper book No. 3. A perusal of the cross examination of D.W.-1 further shows that the same question was put to him differently several times after recalling him in the witness box. The fact that the witness was cross examined for five years is sufficient to conclude that the contradictions were bound to happen.

IN THE HIGH COURT OF ALLAHABAD

First Appeal Nos. 55 of 2008, 448 and 472 of 2007

Decided On: 06.03.2017

Radha Sharan Dubey and Ors. Vs. Ram Niwas and Ors.

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Whether a person can be contradicted by his statement in dairy kept by him?

 Again, section 39 shows that a statement may be contained in a document which forms part of a book. In this case also there is no question of any communication of that statement to another person in order to make it a statement.

11. Then, there is section 145, which lays down that a witness may be cross-examined as to previous statements made by him in writing or reduced into writing for the purpose of contradicting him. Under this section a witness may be contradicted by statements in a diary kept by him, though there is no question of any communication of those statements to another person.

12. Then comes section 157, which we have already set out above. Here also the words used are 'Statement made by'. We see no reason why the word 'statement' should not have been used in its primary meaning in this section also. There is nothing in the section which in any way requires that an element of communication to another person should be imported into the meaning of the word 'statement' used therein. It was urged that if we do not imply communication to another person in the meaning of the word 'statement' in this section, it would result in a witness corroborating himself by producing some writing made by him and kept secret and that this would be very dangerous. Now, a distinction must be made between admissibility of such a writing and the value to be attached to it. Section 157 makes previous statements even of this type admissible; but what value should be attached to a corroboration of this nature is a different matter to be decided by the court in the circumstances of each case. The witness who is sought to be corroborated is produced in the witness-box and is liable to cross-examination. The cross-examiner may show that no reliance should be placed on such an earlier statement. The danger, therefore, which the learned counsel for the appellant emphasised is really no danger at all for the witness is subject to cross-examination. The main evidence is the statement of the witness in the witness-box and a document of this nature is only used to corroborate him. If the main evidence is shaken by cross-examination, corroboration by such a document would be of no use. There is, therefore, no reason to give a different meaning to the word 'statement' in this section because of this alleged danger, which really does not exist.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 31 of 1958

Decided On: 04.11.1958

Bhogilal Chunilal Pandya Vs.The State of Bombay

Hon'ble Judges/Coram:

K. Subba Rao, K.N. Wanchoo and N.H. Bhagwati, JJ.

Citation:1959CriLJ389 :

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Whether accused can cross examine police officer on basis of pages of case diary obtained under right to information Act?

Since in the matter on hand, neither the police
officer has refreshed his memory with reference to entries
in the police diary nor has the trial court used the entries
in the diary for the purposes of contradicting the police
officer (PW-15), it is not open for the accused to produce
certain pages of police diary obtained by him under the
provisions of Right to Information Act for the purpose of
contradicting the police officer.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO 694 OF 2017
(Arising out of SLP (Crl.) No. 9314 of 2016)
Balakram V State of Uttarakhand & Ors

MOHAN M. SHANTANAGOUDAR, J.
Dated: April 19, 2017.
Citation:(2017)7 SCC 668

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How to record contradiction and omission in criminal case?

Marking of contradictions-A healthy practice of marking the contradictions/Omissions properly does not appear to exist in several States. Ideally the relevant portions of case diary statement used for contradicting a witness must be extracted fully in the deposition. If the same is cumbersome at least the opening and closing words of the contradiction in the case diary statement must be referred to in the deposition and marked separately as a Prosecution/Defence exhibit.

IN THE SUPREME COURT OF INDIA

Suo Motu Writ (Crl.) No. 1 of 2017

Decided On: 30.03.2017

 In Re: To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials

Hon'ble Judges/Coram:

S.A. Bobde and L. Nageswara Rao, JJ.

Citation: 2017 ALLMR(CRI)1747 SC

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Leading Judgment on recording of contradiction in evidence of witness

 It is a settled law that if it is intended to contradict the witness by his previous statement in writing, the attention of the witness must be drawn before the writing is proved. We may gainfully refer here the law laid down by the apex Court in the case of Tahsildar Singh & Anr. Vs. The State Of Uttar Pradesh reported in MANU/SC/0053/1959 : AIR 1959 SC 1012. The law laid down by the apex Court in that case still holds the field and the subsequent decisions by the apex Court and several other High Courts including this court followed the decision of Tahsildar's case.

The Apex court has held that--

The intention of the legislature in framing S. 162 in the manner it did in 1923, was to protect the accused against the user of the statements of the witnesses made before the police during investigation at the trial presumably on the assumption that the said statements were not made under circumstances inspiring confidence. Both the section and the proviso intended to serve primarily the same purpose i.e. the interest of the accused.

The court has further held that -

the section was conceived in an attempt to find a happy via media, namely, while it enacts an absolute bar against the statement made before a police-officer being used for any purpose whatsoever, it enables the accused to rely upon it for a limited purpose of contradicting a witness in the manner provided by S. 145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction. It cannot be used for corroboration of a prosecution or a defence witness or even a Court Witness. Nor can it be used for contradicting a defence or a Court witness. Shortly stated, there is a general bar against its use subject to a limited exception in the interest of the accused, and the exception cannot obviously be used to cross the bar.
The procedure prescribed for contradicting a witness by his previous statement made during investigation, is that, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to S. 162 only enables the accused to make use of such statement to contradict a witness in the manner provided by S. 145 of the Evidence Act, If would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of S. 145 of the Evidence Act. The argument that it would not be possible to invoke the second part of S.145 of the Evidence Act without putting relevant questions under the first part thereof cannot be accepted. The second part of S. 145 of the Evidence Act clearly indicates the simple procedure to be followed.
Section 145 of the Evidence Act indicates the manner in which contradiction is brought out. The cross-examining Counsel shall put the part or parts of the statement which affirms the contrary to what is stated in evidence. This indicates that there is something in writing which can be set against another statement made in evidence. If the statement before the police-officer and the statement in the evidence before the Court are so inconsistent or irreconcilable with each other that both of them cannot co-exist, it may be said that one contradicts the other.

In para 26 of the judgment the court has observed thus:-

From the foregoing discussion the following propositions emerge: (1) A statement in writing made by a witness before a police officer in the course of investigation can be used only to contradict his statement in the witness-box and for no other purpose; (2) statements not reduced to writing by the police officer cannot be used for contradiction; (3) though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so-called but because it is deemed to form part of the recorded statement; (4) such a fiction is permissible by construction only in the following three cases: (i) when a recital is necessarily implied from the recital or recitals found in the statement; illustration; in the recorded statement before the police the witness states that he saw A stabbing B at a particular point of time, but in the witness-box he says that he saw A and C stabbing B at the same point of time; in the statement before the police the word "only" can be implied, i.e., the witness saw A only stabbing B; (ii) a negative aspect of a positive recital in a statement; illustration: in the recorded statement before the police the witness says that a dark man stabbed B, but in the witness-box he says that a fair man stabbed B; the earlier statement must be deemed to contain the recital not only that the culprit was a dark complexioned man but also that he was not of fair complexion; and (iii) when the statement before the police and that before the Court cannot stand together; illustration: the witness says in the recorded statement before the police that A after stabbing B ran away by a northern lane, but in the Court he says that immediately after stabbing he ran away towards the southern lane; as he could not have run away immediately after the stabbing, i.e., at the same point of time, towards the northern lane as well as towards the southern lane, if one statement is true, the other must necessarily be false.

The law laid down by the Apex Court as indicated above, in respect of recording contradiction has now been settled which requires no further elaboration The trial courts are required to carefully read the provision as prescribed in Section 162 of Cr.P.C. and the relevant provision of Sections 145, 155 and 157 of the Evidence Act.

9.7 In the case at hand, the statements, reproduced above, recorded during cross-examination, make it clear that the witnesses were questioned in respect of some part of the statements made before the Court whether it was stated by the witness concerned to the police officer while examined by such police officer to which the witness stated that he made the statement to the police officer. Thereafter, the witness was not contradicted with his previous statement as per the procedure prescribed by law. Therefore, the above statements cannot be termed as a contradiction for consideration to evaluate the deposition of the witnesses made on oath before the Court.

9.8 Statements made by the witnesses before the investigating officer, being the earlier statements made by them with reference to the facts of the case are, no doubt, a valuable material for testing the veracity of the witnesses examined before the Court with reference to those statements, which happened to be at variance with the earlier statements. The statements made during police investigation are not itself substantive evidence. If a witness during examination makes a statement that he made such statement to the police officer but he is not contradicted with his previous statement as per the procedure prescribed by law, defence cannot claim advantage of the same. In the statements of the witnesses recorded during cross-examination as reproduced above, to which our attention has been drawn, cannot be attached with any importance since it was not recorded according to the procedure prescribed by law drawing attention of the witness to such statement and contradicting him thereby. The observation of the Court, whether such statement was there or not, in the previous statement, recorded by IO is of no consequence at all. We hope that the trial Courts should follow the procedure prescribed by law in respect of recording of contradictions and should not take an easy approach to just record its own observation while recording deposition of witnesses.

9.9 In the case of Sunder Singh Vs. State of Uttaranchal reported in MANU/SC/0710/2010 : (2010) 10 SCC 611, the apex Court has reiterated that unless the contradiction is proved by putting it to person, who records the original statement, such contradiction is of no consequence. If the witness is not specifically questioned about his previous statement and not given an opportunity to explain about such statement, such contradiction cannot be taken note of.

9.10 In view of the discussions made above, we are of the view that the recording of contradiction was not correct and not according to law and, hence, neither the prosecution nor the defence took advantage of it. 

IN THE HIGH COURT OF GAUHATI (AGARTALA BENCH)

Crl. Appeal No. 115 (J) of 2008

Decided On: 19.10.2012

 Ranjit Sarkar Vs. State of Tripura

Coram:Brojendra Prasad Katakey and S.C. Das, JJ.

Citation:2013 (1) GLT709

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