Portion Of S.161 CrPC Statement Used To Contradict Witness Must Be Proved Through Investigating Officer & Marked: Supreme Court

Post By 24 Law
June 25, 2025

Pranav B Prem

The Supreme Court of India, on February 13, 2025, set aside the conviction of an accused under Section 302 of the Indian Penal Code (IPC), emphasizing that the proper procedure for contradicting a witness with their previous statement recorded under Section 161 of the Code of Criminal Procedure (CrPC) was not followed.

A bench comprising Justices Abhay S. Oka and Ujjal Bhuyan ruled that the trial court erred in merely reproducing the contradicted portions of the witness's Section 161 CrPC statements in brackets without duly proving them through the investigating officer. The Court clarified that any portion of a witness’s prior statement used for contradiction must first be formally introduced as evidence through the investigating officer before it can be considered.

Improper Use of Prior Statements

Referring to the trial court’s approach, the Supreme Court observed: “We must refer to a peculiar practice followed by the Trial Court. PW-1 and PW-3 were confronted in the cross-examination with their statements recorded under Section 161 of the CrPC. In the depositions, it is mentioned that the attention of the witness was invited to a particular portion of the prior statement. After recording the answer of the witness, the portion of the prior statement used to contradict the witness has been reproduced in brackets. The law is well settled. The portion of the prior statement shown to the witness for contradicting the witness must be proved through the investigating officer. Unless the said portion of the prior statement used for contradiction is duly proved, it cannot be reproduced in the deposition of the witnesses. The correct procedure is that the Trial Judge should mark the portions of the prior statements used for contradicting the witness. The said portions can be put in bracket and marked as AA, BB, etc. The marked portions cannot form a part of the deposition unless the same are proved.”

Failure to Follow Established Procedure

The Supreme Court emphasized that unless the contradiction is duly proved through the investigating officer, it cannot be considered as valid evidence. The Court stated that the trial judge must properly mark the contradicted portions and ensure their proof before relying on them for adjudication.

Facts of the Case

The case involved the conviction of the appellant, Vinod Kumar, by the Additional Sessions Judge, Shahdara, Delhi, which was subsequently upheld by the Delhi High Court. The appellant was accused of murdering Dharminder, a neighbor, and was sentenced to life imprisonment along with a fine of Rs. 2000/-. The prosecution’s case was based on circumstantial evidence, including the theory of "last seen together" and the alleged evasive replies of the appellant when questioned about the whereabouts of the deceased. However, the Supreme Court found significant inconsistencies in the testimonies of the prosecution witnesses, particularly PW-3 (mother of the deceased), who was declared hostile. The Court noted several omissions in her statement, including key details regarding her interactions with the appellant and his family after the disappearance of the deceased.

This ruling reiterates the importance of following the correct legal procedure when using Section 161 CrPC statements for contradiction. The Court’s decision ensures that procedural lapses do not lead to wrongful convictions and upholds the fundamental principles of fair trial and evidentiary accuracy. Consequently, the Supreme Court quashed the appellant's conviction and acquitted him of all charges, stating: “For the reasons recorded above, the conviction and sentence of the appellant cannot be sustained. Accordingly, the impugned judgments are quashed and set aside, and the appellant is acquitted of the offences alleged against him. The Appeal is accordingly allowed. Bail bonds furnished by the appellant stand cancelled.”