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Statement of Witness to Police

The statements of witnesses to a crime are recorded by the investigating officer under section 161 CrPC by examining them as to what they know about the case. The statement given by the witness under section 161 CrPC should not be signed by him as mandated in section 162 CrPC. The procedures involved in connection with recording of statements under section 161 CrPC are many and almost all of them have been discussed here. Further, there is a lot of scope for manipulation by the investigating officers in course of recording the statements under this section sometimes leading to the implication of innocent persons and in other cases resulting in exoneration of the real accused persons.

Statement of Witness to Police
Under Section 161 of the Code of Criminal Procedure, 1973 (CrPC), the investigating officer shall interview any person who is believed to be familiar with the facts and circumstances of the case under investigation and shall abridge the statement made to him in writing. The statement made under this section cannot be used as substantive evidence before Court.

The witness statements recorded by a police officer under section 161 of CrPC during an investigation cannot be used as a substantive piece of evidence. It cannot be used except for purposes of contradiction under Section 145 of the Indian Evidence Act, 1872. Where any part of such statement is used part of it may also be used in examination for the limited purpose of explaining any matter raised in cross-examination.

The only other exception to this restriction is where the statement is recorded under Section 32(1) or Section 27 of the Indian Evidence Act, 1872. The restriction created by section 162 does not apply in proceedings under section 32 and 27 of the Indian Evidence Act, 1872 or in civil proceedings and statements made before the police officer during the investigation may be used as evidence in such proceedings, if it is relevant under the Indian Evidence Act, 1872.

A very popular defense that a witness tends to use when the other party pleads a contradiction in the witness's statement is that there were threats and inducements that caused him to make that statement.

Section 161 CrPC
  1. Any police officer conducting an investigation under this chapter, or any police officer not below such rank as the State Government may by general or special order direct for the purpose, acting at the request of such police officer, may orally examine any person, who is aware of the facts and circumstances of the case.
  2. Such person shall answer truthfully all questions relating to such matter put to him by such officer, except questions the answer to which would expose him to criminal charge or penalty or forfeiture.
  3. A police officer may note in writing any statement made to him during an examination under this section; and if he does so, he shall prepare a separate and true record of the statement of each such person whose statement he records.
The statements made pursuant to this sub-section may also be recorded by audio-visual electronic means. Statement by a woman against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code is alleged to have been committed or attempted will be recorded by a policewoman or any woman officer.

A written statement sent by post or delivered by another person cannot come under 'oral examination' but a written statement produced by the I.O.'s witness himself, and if the I.O. is assured of its authenticity and reduced it in writing, the statement shall be deemed to be properly recorded in accordance with section 161 CrPC.

Section 162 CrPC
  1. A statement given by any person to a police officer during an investigation under this Chapter shall not be signed by the person giving it; no such statement or any record thereof, whether in a case diary or otherwise, nor any part of such statement or record shall be used for any purpose, except as provided below, in any inquiry or trial in connection with any offence under investigation at the time such statement was made:

    Provided that when any witness is called for the prosecution in such inquiry or trial, whose testimony has been reduced to writing as aforesaid, any part of his testimony may, if properly proved, be used by the accused and with the consent of the court by the prosecution to contradict such witness in the manner provided in section 145 of the Indian Evidence Act, 1872; and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but only for the purpose of explaining any matter raised in his cross-examination.
  2. Any statement falling under the provisions of section 32 (1) of the Indian Evidence Act, 1872 or the provisions of section 27 of the said Act shall not be affected by anything contained in this section.

Section 163 CrPC
No police officer or other person in authority shall offer, make or cause to be offered or made any such inducement, threat or promise as is provided in the Indian Evidence Act, 1872. But no police officer or other person shall, by any warning or otherwise, prevent any person from making any statement during an investigation under this chapter which he may make of his own free will: Provided that nothing in this subsection shall affect the provisions of section 164.

Objective of Section 161 CrPC
The object and purpose of section 161 is to gather evidence of the commission of a crime by examining and recording the statements of witnesses in connection with the commission of a crime. Section 162 CrPC mandates that a statement made under section 161 CrPC should not be signed; it is the duty of the investigating officer to note down the statement of the witness being examined.

The word "may" used in Section 161 CrPC gives discretion to the police officers to interview any person orally and reduce to written form any statement made to him; therefore, he is entitled not to reduce to written form the whole statement made to him, or he can reduce to written form only the content of the statement. The only object of the declaration according to section 161 of the CrPC is to investigate allegations and prepare a case diary for the purposes of court review at the cognizance and summons stages, and to use the same for contradiction of the witness during the trial of the case.

Each police officer conducting the investigation is accredited in the investigation process according to Section 161 of the CrPC and authorized to orally examine any person who is presumed to be familiar with the facts and circumstances of the case and to record the statements of witnesses.

These orders are mostly called declarations under Section 161 CrPC. The task is to gather evidence against the accused. After the charges are filed, these statements will also be scrutinized by the court to take cognizance of the offence. Such a statement can only be used to contradict a witness in the way provided in section 145 of the Indian Evidence Act, 1872.

Section 145 of the Indian Evidence Act, 1872
A witness may be cross-examined as to previous written statements made by him or reduced to writing and relating to the matters in question, without such writings being shown to him or being proved; but if he is to be contradicted by writing, his attention must, before the writing can be proved, be directed to those parts of it which are to be used to contradict it.

The term statements appearing in section 161 of the CrPC refers to those that the police, as part of the investigation record, and their use is regulated by section 162 of the CrPC. While the term prior statement occurring in section 145 of the Indian Evidence Act, 1872 is not limited to statements recorded by the police but also includes other prior statements made by a person deposing as a witness in a trial.

In Dharma Ram Bhagare v. St of MH - AIR 1976 SC 476, a three-judge bench of the Supreme Court held that an FIR is a prior statement and can be used to corroborate or contradict its maker but cannot be used as substantial evidence because it is presented to the police without oath or cross-examination.

Copy of Statement Under 161 (3) CrPC Not Supplied to the Accused
As a rule, the accused must be provided with statements recorded in accordance with section 161 (3) of the CrPC. Withholding the same would violate the principles of fair trial and 6 of the 13 accused will not be able to use the statement for any purpose.

However, a police officer/investigating officer under section 173(6) CrPC may request the court not to give a specific statement or part of a specific statement to the accused, by properly stating the reasons why such a request is made. The court then has the authority not to provide these statements to the accused in compliance with section 207 of the CrPC. Statements that the police can withhold are listed in section 173 (5) (b) of the CrPC. Dharambir v. CBI � 2008 Law Suit (Del) 66

Omission and Contradiction
The dictionary meaning of the word "contradiction" is 'to offer the opposite'. If a person examined by the police according to Section 161 of the CrPC has stated a certain fact in a certain way and presents this fact in a different way before the court, it is a contradiction between the statement made before police and the statement made before the court and is referred to as a contradiction. Therefore, a statement to the police can be used to contradict a witness.

Omission means to exclude or omit something. If a witness does not state a specific fact before the police and states this fact for the first time in court during the trial, this is an omission.

Statements recorded by the police under section 161 CrPC can be used for the limited purpose of contradicting a prosecution witness under section 145 of the Indian Evidence Act, 1872 and can be used either by the defense or the prosecution with the permission of the court. Furthermore, a statement not reduced to writing by a police officer cannot be used for contradiction.

Omissions and contradictions relate to the witness's previous statement. Missing to state something from the earlier statement is called omission. Contradiction means stating something different from the previous statement. Omissions and contradictions stand in the way of inspiring confidence in the evidence. The most relevant provisions in this regard are Section 145 of the Indian Evidence Act, 1872 and Section 162 of the Code of Criminal Procedure, 1973.

In the event that a witness testifies in court that a certain fact exists without stating it before the police; it is a discrepancy between the statement made before the court and the statement made before the police. That's a contradiction. The statement to the police can therefore be used against his testimony in court.

An omission to state a fact or circumstance in a statement referred to in sub-section (1) of section 161 CrPC may constitute a contravention if the same appears material and otherwise relevant having regard to the context in which such omission occurs and whether any omission constitutes a contravention in the particular context is a matter of fact.

When a witness testifies or gives evidence in court under oath, he is expected to tell the truth in court. If a person testifies in court completely contrary to what he testified before the police as a witness, then this is usually called a contradiction.

Omissions in a statement to the police cannot be considered and used as a contradiction to evidence given in court. State of Maharashtra Vs. Nababai Abdul Hasan, 1989 Cri LJ 1283

In the case of State Rep. by Inspector of Police v. Saravanan AIR 2009 SC 152, it was held that the contradictions/omissions must be of such a nature as to materially affect the trial. Minor contradictions, inconsistencies, embellishments or enhancements that do not affect the merits of the prosecution's case should not be grounds for rejecting the witness's evidence as a whole.

In Shyamal Ghosh v. State of West Bengal 2012 All. S. C. R, 1921, it was held that the omission to state whether there is a material contradiction or not is a question of fact. It is left to the discretion of the court to determine whether it is a contradiction or a material contradiction which renders the entire witness evidence unreliable and significantly affects the prosecution case.

Statements recorded by the police under section 161 CrPC can be used for the limited purpose of contradicting a prosecution witness under section 145 of the Indian Evidence Act, 1872 and can be used either by the defense or the prosecution with the permission of the court. Furthermore, a statement not reduced to the writing of a police officer cannot be used for contradiction.

In a case reported in AIR 1958 Bom 225, Syyed Husan vs State, their Lordships held that the right and proper way to prove a contradiction or omission is to ask the investigating officer in his evidence whether the particular statement was made by the witness before him.

If such a procedure is not adopted, it cannot be said that there was evidence that the witness did not actually make the statement in question. It is for the trial judge in each case, after comparing the part or parts of the statement recorded by the police with the statement made in the witness box, having regard to the above principles, to decide whether the point of justification to be used for the contradiction meets the requirements of the law.

The part of the written statement which the party wishes to contradict must be confronted with the witness who made it and must be recorded in cross-examination. If the witness admits that he gave this part of the statement to the police, then the contradiction thus recorded on cross-examination is complete and will be read in the evaluation of the evidence.

If a witness denies making a statement to the police that a party wishes to contradict, this must be marked and recorded in the witness statement. Finally, when the investigating officer comes to depose, then the investigating officer must be confronted with the marked part and his response recorded, and then the contradiction is complete.

In the case of State of U.P. v. Harban Sahai (1998), a special leave application was filed challenging the decision of the Allahabad High Court acquitting four persons accused of murder. One of the reasons given by the High Court was that the blood spot samples taken by the examiner were not sent to the laboratory for testing, thereby distorting the test. The Supreme Court rejected this reasoning, saying that such trivial omissions are not considered to distort the investigation. Again, the court clarified its position by saying that the omission must be serious enough to affect credibility, which it was not in this case.

Chapter VI of the Criminal Manual, Rule 29
It reports on proof and statements according to section 161 of the CrPC as below:

Rule 29:
  1. In the event of a statement recorded pursuant to section 161 of the CrPC is used in the manner indicated in Section 162 of the CrPC, the passage which was put to the witness, to contradict him, he should first be marked for identification and exhibited after it is proved.
  2. The method of proving such an assertion is the interrogation of a police officer who had recorded the statement whether the marked passage is a true extract from the statement recorded by him.
  3. If the statement recorded in accordance with section 161 of the CrPC is used to contradict a witness, the specific statement to the witness should be accurately recorded in the record about the deposition of the witness.
  4. Omissions in statements recorded pursuant to section 161 should, if the witness denies it, be proved by questioning the police officer whether the witness made the statement which he says he had.

Regarding the evaluation of evidence, the Supreme Court observed in the case of Ganesh K. Gulve etc. v. State of Maharashtra, for the purpose of evaluation of evidence, the court is required to keep in mind the setting and environment in which the offence is committed and the level of understanding of the witnesses. Excessive jealousy of some close relations of the complainant try to ensure that anyone even remotely connected to the crime is also convicted.

Everyone has a different way of telling the same facts. These are only illustrative examples. Given these general principles, evidence must be appreciated to determine which part of the evidence represented the true and correct state of matters. It is for the courts to separate the wheat from the chaff.

Trial courts are required to carefully read the provision as prescribed in section 162 CrPC and relevant provisions of sections 145,155 and 157 of the Indian Evidence Act, 1872.

Points to be Remembered
The following points should be borne in mind while recording statement of any witness under section 161 CrPC:
  • The person whose statement is recorded should not be asked to sign it.
  • It should preferably be recorded in the language of the witness and verbatim. The statement should be recorded after writing on the top the name, age, father's name and address of the maker of the statement along with name of the Police Station and Case Number.
  • The statement should preferably be recorded of the eyewitnesses and in first person.
  • In case of deaf and dumb witness the statement of the interpreter should also be recorded along with the statement of the witness.
  • It can be recorded in question-and-answer form if required.
  • The statement of unrelated and negative witness should be avoided.
  • It should preferably be recorded in the language it is stated in.
  • It should be recorded witness by witness and not jointly.
  • It should not be recorded in boiled down form. Recording of boiled down or joint statement of witnesses is clearly in contravention of section 161 (3) CrPC.
  • Investigating officer is not bound to record the statement of everybody.
  • If the investigating officer takes rough note, he should preserve it for inspection of defense.
  • It can be used in court by the defense to contradict the witness who made it.
  • Its copy should be supplied to the accused side before the trial.
  • Magistrate can summon additional accused against whom there is a prima facie case in the statements under section 161 CrPC. He can also summon additional witnesses though their names were not cited as witnesses by the investigating officer.
  • Magistrate can look into section 161 CrPC statements to take cognizance even on a negative final report.
  • It cannot be used as substantive or corroborative evidence save under sections 27 & 32 of the Indian Evidence Act, 1872.
  • It cannot also be used to refresh the memory of the witness who made it.
  • It should not be incorporated in the search list.
  • It should not be incorporated in a sketch map or site plan.
  • It should not be recorded in an inquest report.
  • It cannot be used to contradict a defense witness or even a court witness.
  • It should be written in legible and clear handwriting preferably at the spot without any unjustified delay.
  • There should not be unnecessary delay in recording the statement. Inordinate delay in recording the statement should be explained in the case diary.
  • The physical and mental condition of the witness should be recorded in the case diary, especially in the case of traumatized and injured witnesses.
  • Interested witnesses should be examined with care and caution.
  • Child witnesses should be examined with care and kindness.
  • While recording the confessional statement of the accused person, the inculpatory part of the statement should preferably be written in a separate paragraph.
  • After recording the statement, the investigating officer should sign it with the date after writing "Recorded by me, read over and admitted to be recorded correctly."

Court judgments:
In Manu Sharma vs State (Nct of Delhi) 2010 6 SCC 1, the Investigating Officer has a discretion to decide whether the statement of the witness he has examined orally should be recorded or not.

The statement of a witness during an investigation is governed by section 162 of the CrPC and only limited use of such a statement is against the person who gave the statement when being examined as a prosecution witness. For any other purpose this statement may not be used. One witness cannot be contradicted by reference to the police statement of another witness. Jodha Khoda Rabari Vs. State of Gujarat, 1992 Cri LJ 3289 at p 3354 (Guj HC)

Apart from the statement of the accused falling within the ambit of section 27 of the Indian Evidence Act, 1872, the conduct of the appellant in leading the Executive Magistrate and pointing to the place where the dead body was buried would be admissible as conduct under Section 8 Evidence Act. Vasudevan v. State 1993 Cri LJ 3151 at p. 3154

The Supreme Court recently held that statements made to the police under section 161 of the CrPC may not be admissible in evidence but are relevant to determining whether or not a prima facie case is made out against an accused during hearing of bail petition. Indresh Kumar v. State of Uttar Pradesh and others.

In the case of Balakrishna Swain versus State of Orissa (1971), there was an unexplained delay of 10 days and certain discrepancies were found in the depositions. The Supreme Court observed that even if the discrepancies are not significant, the evidence is suspect if seen in the light of delay in the investigation. The investigating officer should be asked about such delay.

In the case of Ranbir v. State of Punjab (1973), it was held that if the delay in the investigation is not explained, then in such a case the veracity of the evidence should be questioned.

In the case of Washeshwar Nath Chadda v. State (1993), the Court held that a delay of several hours can be accepted provided it is shown that such delay was caused intentionally to give an opportunity to the accused to make his case.

In Appabhai v. State of Gujarat (AIR 1988 S.C. 694), the Hon'ble Apex Court observed that the court while appreciating the evidence must not give undue weight to minor irregularities. Inconsistencies that do not shake the basic version of the indictment can be thrown out.

In State of U.P v. MK Anthony (1985 SCC (Crl) 105) and State of Rajasthan v. Teja Ram and others (AIR 1999 SC 1776), the Supreme Court observed that Section 162 CrPC does not provide that the statement of a witness given in court shall becomes inadmissible if the witness statement recorded during the investigation is found to have been signed by the witness at the behest of the investigating officer. It merely places the court on caution and may require an in-depth examination of the evidence.

In the case of Ganesh Bhagvan v. State of Maharashtra 2005 DMC 445, the Hon'ble Court observed that though it is settled law, delay in recording the statement of witnesses does not necessarily discredit their testimony but if such witnesses were or could be available for examination when the investigating officer visited the place of the event or soon after and even then, there was a delay it would cast doubt on the prosecution case

Witness statements made during an investigation can only be used for contradicting witnesses and cannot be used to seek reassurance about the prosecution's story. Sat Paul v. Delhi Administration, AIR 1976 SC 294

A delay in the examination of a witness may sometimes be fatal to the prosecution, but a delay of a few days in itself need not be fatal. AIR 1997 SC 352

The investigating officer claimed that the delay of eight days was unavoidable as witnesses were not available in the village during that time. If this explanation is negative, the delayed evidence may be excluded. 1993 Cri LJ 2512

The people who are civilized are generally insensitive in case of commission of a crime in their presence. They step away from both the victim and the watcher. He stays away from court unless it becomes unavoidable. Appabhai vs. State of Gujarat AIR 1988 SC 696)

Misuse of Statement Under Section 161 CrPC
The misuse of power by some investigating officers under section 161 CrPC cannot be denied. In many cases statement of the witnesses are recorded by the investigating officer sitting at the police station instead of at the scene of crime or at the residences of the witnesses, as per wish of the investigating officers without examination of the witnesses or in their absence. In many cases statements of witnesses who don't know anything about the case and are not related to the case are recorded to mar the case.

Further, while recording the statements of witnesses the names of genuine accused person whose names are told by the witnesses are left out and in some cases the names of innocent persons are recorded in the statements without their names being mentioned by the witnesses during their examination. In some cases, it is seen that the statement of such persons who are hell bent on saving the name of the accused persons are recorded and they give evidence in favour of the accused persons and include the name of some other persons not related to the case as accused.

This they generally do with the help of pocket or stock witnesses who are people working for police and are normally seen roaming around the campus of the police station or sitting with the investigating officer at the police station.

It has also been noticed that some investigating officers submit charge sheet in a case by recording statement of witnesses who he never met or with the help of their stock or pocket witnesses. Even the accused persons involved in murder cases who have been named in FIR are saved by omitting their names form the statements of the witnesses whose statements are recorded under 161 CrPC as there is no provision of showing the statement to the witnesses by the investigating officer.

The statement recorded under section 161 CrPC is not a substantive piece of evidence. These prepared by police officers in course of investigation of a case by examining the witnesses who are acquainted with the case. There is some discretion given to the police officers under this section in the matter of choosing the persons he will examine during investigation of the case and this entails to misuse of power and manipulation by the police officers in the form of implicating an innocent person or exonerating the real accused.

The persons whose statements are recorded by the investigating officers are called to depose in court as to what they know about the case during trial in course of which they may also be cross examined by the defense counsel or the prosecution side in respect of discrepancy between what they had told the police during examination and what they are deposing in court. There is also a need to put a check on the misuse of power in the recording of statement under section 161 CrPC by the police officers.

  2. Recording Statement under Section 161 of CrPC,
  4. Scope and Relevance of Statements Recorded Under Section 161 and 164 of CrPC. Presented by Smt. B. Sobha Kumari, Senior Civil Judge, Rajam,
  5. Kanoon,
  6., 24 December, 2022.
  8.; What is Contradiction and Omission under section 162 CrPC, 1973 - By Shri Justice Ram Kumar
  9. Section 162 CrPC, June 23, 2023,
  10. Indian Evidence Act Section 145, Cross-examination as to previous statements in writing,

Written By: Md. Imran Wahab, IPS, IGP, Provisioning, West Bengal Email: [email protected], Ph no: 9836576565

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