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.

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

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

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

In the Supreme Court of India

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

Special Leave Petition (Criminal) No. 7532 of 2025

P. Krishna Mohan Reddy  Vs State of Andhra Pradesh 

Decided on May 16, 2025.

Citation: 2025 SCC OnLine SC 1157.

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Evidentiary Value of statements obtained by Police under the Indian Evidence Act

 The evidentiary value of statements made to police officers in India is primarily governed by the Indian Evidence Act, 1872, particularly Sections 25, 26, and 27. These sections delineate the circumstances under which statements can be considered admissible in court and the extent to which they can be relied upon.

Section 25: Confessions to Police Officers

Section 25 of the Indian Evidence Act explicitly states that no confession made to a police officer shall be proved against an accused. This provision is rooted in the historical context of potential coercion and abuse of power by law enforcement, ensuring that confessions obtained under duress or in custody are inadmissible. 

This section underscores a fundamental principle of criminal justice: protecting individuals from self-incrimination and ensuring that any confession is made voluntarily and without undue influence.

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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

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

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

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

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

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

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

IN THE HIGH COURT OF KERALA

Cri. Appeal No. 462 of 1992

Decided On: 13.01.1995

 Ali  Vs.  State of Kerala

Hon'ble Judges/Coram:

K.P. Balanarayana Marar, J.

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When statement of victim recorded by police can be treated as her dying declaration?

 It is relevant to refer to judgment of this Court in Najjam Faraghi @ Nijjam Faruqui v. State of West Bengal MANU/SC/0949/1998 : (1998) 2 SCC 45. In the above case, the kerosene oil was poured on the victim and she was put on fire on 13.06.1985. She lived for about a month and died on 31.07.1985. This Court referring to Section 32(1) held that mere fact that victim died long after making the dying declaration, the statement does not looses its value. In Para 9, following has been held:

9. There is no merit in the contention that the Appellant's wife died long after making the dying declarations and therefore those statements have no value. The contention overlooks the express provision in Section 32 of the Evidence Act. The second paragraph of Sub-section (1) reads as follows:

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

No doubt it has been pointed out that when a person is expecting his death to take place shortly he would not be indulging in falsehood. But that does not mean that such a statement loses its value if the person lives for a longer time than expected. The question has to be considered in each case on the facts and circumstances established therein. If there is nothing on record to show that the statement could not have been true or if the other evidence on record corroborates the contents of the statements, the court can certainly accept the same and act upon it. In the present case both courts have discussed the entire evidence on record and found that two dying declarations contained in Exs. 5 and 6 are acceptable.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1192 of 2018 (Arising out of SLP (Crl.) No. 6225 of 2017)

Decided On: 10.10.2018

 Pradeep Bisoi Vs.  The State of Odisha

Hon'ble Judges/Coram:

A.K. Sikri and Ashok Bhushan, JJ.

Citation: AIR 2018 SC 4787

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Whether police statement of witness recorded in one case can be used in other case?

Further, in State of Kerala V Babu (1999 (4) SCC 621),

  the Apex Court was confronted with the question as to

  whether the statement of a witness recorded under S.161

  of Cr.P.C. in one particular crime could be used against

  that witness in any other trial enquiry or proceedings by

  the accused.



               11. "The High Court in the impugned
                judgment proceeded on the basis that
                statement recorded by an investigating
                officer in any case which was under
                investigation being a statement made
                under S, 161 of the Code, the same can be
                used for the limited purpose provided under
                S.162 of the Code read with S.145 of the
                Evidence Act. There can be no quarrel with
                this approach of the High Court in regard to
                the use of the previous statements of a
                witness made in the course of another
                investigation being used in the course of
                another criminal trial, This is because, as
                seen from the observations of this Court in
                the case of Tahsildar Singh (supra) the


                very object of enactment of S.161 of the
                Code and S.145 of the Evidence Act is to
                create a right in the accused to make use
                of the previous statements of the witnesses
                for the purpose of contradiction and for
                impeaching the merit of the witness. This
                right has not been taken away by S.172 of
                the Code and, as noticed above, there is no
                prohibition in regard to this right of the
                accused either under the Code or under the
                Evidence Act.


        


               13............................. If that be so and if
                the court comes to the conclusion that the
                production of such document is necessary
                or desirable then, in our opinion, the court
                is entitled to summon the case diary of
                another case under S.91 of the Code de
                hors the provisions of S.172 of the Code for
                the purpose of using the statements made
                in the said diary, for contradicting a
                witness. When a case diary, as stated
                above, is summoned under S.91(1) of the
                Code then the restrictions imposed under
                Sub-s.(1) and (3) of S.172 would not apply
                to the use of such case diary but we hasten
                to  add     that     while     using   a  previous
                statement recorded in the said diary, the
                court should bear in mind the restrictions
                imposed under S.162 of the Code and
                S.145 of the Evidence Act because what is
                sought to be used from the case diary so
                produced, are the previous statements
                recorded under S.161 of the Code.
                                                    ( Emphasis supplied )



16.Having regard to the above binding precedents there

  cannot be any doubt that S.162 of the Code does not

  prohibit the use of the 161 statement of any witness in

  any other proceeding other than the inquiry or trial in

  respect of the offence for which the investigation was

  conducted. However the Apex Court has cautioned that

  the court should bear in mind the restrictions imposed

  under S.162 of the Code and S.145 of the Evidence Act

  because what is sought to be used from the case diary so

  produced, are the previous statements recorded under

  S.161 of the Code. In view of the above, I am of the view

  that the reasons on the basis of which the application was

  dismissed by the Court below cannot be sustained.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                     PRESENT:

                 MR. JUSTICE RAJA VIJAYARAGHAVAN V

            26TH DAY OF OCTOBER 2016
                      Crl.MC.No. 6611 of 2016 

       SANTHOSH KUMAR Vs STATE OF KERALA,
                

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Whether evidence of a witness can be looked with suspicion on ground his police statement is larger than his evidence?

Mr. Huzefa Ahmadi, learned senior counsel for
appellants contented that both the Courts below have
committed an error in convicting the appellants for the
offence punishable under Section 302 IPC, along-with
other accused. He submitted that there were material
improvements made by PW14 in his deposition when
compared to the fardbeyan given to the police on the date
of the incident and no specific role has been attributed to
the present appellants. But after careful analysis of the
fardbeyan (Ext.7), we have an entirely different opinion.
It is true that deposition is somewhere literally larger
than the fardbeyan, however, it is no where contrary to
it. It may rightly be said that the deposition of PW14 is
merely elaborated form of statement recorded before the
police, with minor contradictions. Oral evidence of a
witness could be looked with suspicion only if it
contradicts the previous statement.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.484-487 of 2008
SHEIKH JUMAN & ANR. ETC. 
V
STATE OF BIHAR .
Dated:February 23, 2017. 
Citation: AIR 2017 SC 1121

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