Section 161 of criminal procedure code

Introduction :
The object of this section 161 cr.p.c recording the statements of the witnesses material in
respect of commission of the offence. signing of statement under section 161 is prohibited
under section 162., it is prerogative of police officer to record the statement of a witness
examined.

Statement in its dictionary meaning is the act of stating or reciting. The term statement is
not defined anywhere in the Act. However, it has got whole connotations. Generally,
statements are recorded in Object and purpose of section 161 is to collect evidence
regarding commission of an offence by examcriminal procedure code in section 161 and
162. under section 164 of Crpc the confession statements of accused will be recorded.
Section 161 Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) titled “Examination of
witnesses by police” provides for oral examination of a person by any investigating officer
when such person is supposed to be acquainted with the facts and circumstances of the
case. The purpose for and the manner in which the police statement recorded under
Section 161 Cr.P.C can be used at any trial are indicated in Section 162 Cr.P.C.

‘Civilized people are generally insensitive when a crime is committed even in their
presence. They withdraw both from the victim and the vigilante. They keep themselves
away from the Court unless it is inevitable.’ (Ref: Appabhai Vs. State of Gujrat AIR 1988
SC 696). This observation was made by the Hon’ble Apex Court when prosecution could
not produce independent witnesses in that case. In the process of investigation, under
Section 161 of Cr.P.C, any Police officer making an investigation is accredited and
empowered to examine orally any person supposed to be acquainted with the facts and
circumstances of the case and to records statement of witnesses. These statements are
predominantly called 5 as section 161 Cr.P.C statements. This task is to gather evidence
against accused. After filing charge sheet, these statements will also be perused by the
Court to take cognizance of an offence. Such a statement can only be utilized for
contradicting the witness in the manner provided by Section 145 of the Evidence.

The rule 29 chapter:

The section states about the proof and statement u/s 161 of code of
criminal procedure code,1973:

The words “any person” used in Section 161 (1) also include a person who may be accused of
the crime and suspects.

Inordinate delay on the part of the investigating officers in recording statements of witnesses
including the accused and the suspects may throw doubt on the veracity of the prosecution
case. The Magistrate should ask the investigating officer to explain the reason for delay in
recording of statements of witnesses etc. and if the delay is properly explained, it will have no
adverse affect on the probative value of the witness concerned.

In a case which is exclusively triable by the Court of Session, the Magistrate need not record the
statements of the witnesses under this section.

Sub-section (2) makes it obligatory for a person who is examined by police in course of
investigation, to answer all questions put to him truly other than questions the answers to which
are likely to incriminate him or expose him to a criminal charge.

A person who gives false information or deliberately gives untrue answers is liable to be
punished under Sections 202 and 203 of the Indian Penal Code.

The statements of witnesses under Section 161 should be recorded in the first person, and they
should not be in indirect form of speech. No oath or affirmation is – required in an examination
of witnesses under this section. It is not mandatory for the investigating officer to reduce in
writing the statement of the person examined. But the statement, if recorded, must be recorded
as it was actually made. As sub-section (3) prohibits making of precis of a statement recorded
under Section 161 of the Code.

The Supreme Court in State of NCT of Delhi v. Ravikant Sharma explained the privilege in respect of
statement of witnesses recorded under Section 161 during investigation and held that any direction to
supply “gist” of such statements was unsustainable because such statement of witnesses recorded
during investigation does not include interpretation of Investigation Officer.

Sub –section(4) Omissions in the statements recorded under section 161 should, if denied by the
witness, be proved by questioning the Police Officer whether the witness had made the statement
which he says he had. On the point of appreciation of evidence the Hon’ble Supreme Court has
observed in Ganesh K. Gulve etc. v/s. State of Maharashtra (decided on 21.08.2002 in appeal ( Cri)
501 of 1999 as under:- " In order to appreciate the evidence, the Court is required to bear in mind
the set up and environment in which the crime is committed. The level of understanding of the
witnesses. The over jealousness of some of near relations to ensure that everyone even remotely
connected with the crime be also convicted. Everyone's different way of narration of same facts.
These are only illustrative instances. Bearing in mind these broad principles, the evidence is
required to be appreciated to find out what part out of the evidence represents the true and correct
state of affairs. It is for the courts to separate the grain from the chaff” The law laid down by the
Apex court as indicated above, in respect of recording contradiction has now been settled, 10 the
trial courts are required to carefully read the provisions as prescribed in section 162 of crpc and
the relevant provisions of Section 145,155 and 157 of Indian Evidence Act.

Omission :
 An omission is either skip or slip, it means ‘exclusion’ or ‘leaving out’. If
a certain fact is testified by a witness in his Examination-in-Chief’, such fact, which is
testified in Court, had been omitted to state before police, it is called an ‘Omission’. Now, it
is to be tested by the Court whether it is a material omission or not. If it is a material
omission, it amounts material contradiction. The Hon’ble Apex Court opines that relevant
and material omissions amount to vital contradictions, which can be established by cross-
examination andmaterial contradiction. The Hon’ble Apex Court opines that relevant and
material omissions amount to vital contradictions, which can be established by cross-
examination and confronting the witness with his previous statement. (Ref; Tahsildar
Singh .Vrs..State of U.P., 1959 SCR Supl. (2) 875; AIR 1959 1012 (1026)). However, as was
held in Ponnuswamy Chetty v. Emperor (A.I.R. 1957 All. 239), ‘a bare omission cannot be a
contradiction’.

Contradiction:
In case of a witness testifies before the court that a certain fact is existed
without stating same before police; it is a case of conflict between the testimony before the
court and statement made before the police. This is a contradiction. Therefore, statement
before the police can be used to contradict his testimony before the court. In Appabhai .Vs.
State of Gujrat AIR 1988 S.C. 694 [1988 Cri.L.J. 848], The Hon’ble Apex Court has
observed as 7 under: “The Court while appreciating the evidence must not attach undue
importance to minor discrepancies. The discrepancies which do not shake the basic version
of the prosecution case may be discarded.

Scope of section 161 of cr.p.c:

Section 161 of the Code of Criminal Procedure, 1973 provides for the examination of a witness by
the police. There is no general prohibition for examining a witness by the Court whose statement has
not been recorded under Section 161 by the police.[1] Thus, the mere fact that the statement of a
particular person has not been recorded under Section 161 does not act as a bar to examining him as a
witness in the court. Also, this by itself would not render the testimony of such a witness inadmissible.
The Court has the power to consider all evidence in favor of the prosecution, which would allow the
Court to consider a witness even if his statement is not recorded under Section 161. If the statement is
not recorded under Section 161 but the prosecution produces such a witness in the court with the prior
permission of the Court, the prosecution is allowed to present the witness.[2] However, in a 2012
judgment of the Bombay High Court[3], it was held it is necessary for the sake of propriety, to record a
person’s statement. This is because it is only after the statement has been recorded that the Court is in a
position to form an opinion as to whether the evidence of such a witness would be necessary, desirable
or essential for a just decision of the case.[4] Also, recording the statement ensures the accused a
proper opportunity to defend himself, since he is made aware of what the witness is likely to
depose.[5] Thus, the investigating agency should, at the stage of the trial, record the statement of the
witness after seeking permission of the Court to do the same, if this was not already done during
investigation.[6] Therefore, the absence of a written statement under Section 161 cannot restrict the
prosecution from calling the witness but it must be ensured that the Court is made aware about the
importance of the witness and the defense gets an adequate opportunity to defend the new facts
presented by the witness before the Court. [1] Kishore Signapurkar and Others v The State of
Maharashtra and Others 2012 Bom CR (Cri) 616, Public Prosecutor v C.D. Naidu And Others AIR 1960 AP
367, Om Prakash v State of Rajasthan 2003 Cri LJ 4704. [2] Om Prakash v State of Rajasthan 2003 Cri LJ
4704. [3]Kishore Signapurkar and Others v The State of Maharashtra and Others 2012 Bom CR (Cri)
616. [4] Ibid. [5] Ibid. [6] Ibid.

Evidentiary Value of Confession

 A confession is substantive evidence against its maker, so that it has been duly recorded and suffers
from no legal infirmity, it would suffice to convict the accused who made the confession, though as a
matter of prudence, the Court expects some corroboration before acting upon it. Even then slight
corroboration would suffice.
 But before acting upon a confession, the Court must be satisfied that it is voluntary and true.
1. Voluntaries depend upon whether there was any threat, inducement or promise.
2. Its truth is to be judged in the context of the entire prosecution case,- whether it fits into the proved
facts and does not run counter to them.
If these two conditions are satisfied, it becomes the most portent piece of evidence against the maker.
 The confession would not ordinarily be considered the basic for conviction. However, it is admissible
and conviction may also be based upon it if it is found truthful and voluntary and in a given case some
corroboration is necessary. Confession which is not retracted even at the stage of trial and even
accepted by the accused in the statement under section 313 Cr.P.C. can be fully relied upon. So, the
conviction based thereon together with other circumstantial evidence is sustainable.
The accused in his statement under section 313 Cr.P.C. or du
Evidentiary Value of Retracted Confession
It is a settled rule of evidence that unless a retracted
confession is corroborated in material particulars, it is not prudent to pass a conviction on its strength
alone. Corroboration should not be dispensed with merely because the confession contains a wealth of detail.
 ring cross-examination never suggested that his statement under section 164 Cr.P.C. is false. Allegation
of presence of police officers at the time of recording the confession was without any material.
Requirement of section 164(2) Cr.P.C. have been complied with. Such a confession statement was fit to
be accepted.

1. If the Court is satisfied that it was retracted because it was an after-thought advice, the retraction may
not weight with the Court if the general facts proved in the case and the tenor of the confession as made
and the circumstances of its making and withdrawal warrant it user.
2. All the same, the Court would not act upon the retracted confession without finding assurance from
some other sources as to the guilt of the accused.
Cases related to Evidentiary Value of Confession
RAJA RAM v. STATE [AIR 1966 All 192, 1966 CrLJ 386]
Refering to earlier two cases of Allahabad High Court, State v. Ram Autar Chaudhry and Bachchan
Lal v. State, it was held by the Full Bench consisting J Takru, D Mathur, D Uniyal that:
“a confession recorded by a Magistrate under Section 164 of the Code of Criminal Procedure after the police
had completed its investigation and submitted a charge-sheet, but before the Magisterial enquiry has
commenced, is inadmissible in evidence.”
STATE OF UTTAR PRADESH v. SINGHARA SINGH& ORS. [AIR 1964 SC 358, [1964] 4 SCR 485]

The case debated on the admissibility of the oral evidence of magistrate, who had recorded the confession of
the respondents, who were accused of murder charge. The magistrate had no power to record the confession.
The records of confession were not admitted by the Trial Court.
 It was held that confession was not recorded as per Section 164 of the Code of Criminal Procedure,
1898 and the record could not be put in evidence as per Sections 74 and 80 of the Evidence Act to prove
confession. Hence the oral evidence of the magistrate was not admissible.
Conclusion
Recording of statements under section 161 and 164 of Cr.P.C., plays a
pivotal role in criminal trial. The purpose of contradiction between evidence of a witness
before the court and the statement recorded under section 161 and 164 of Cr.P.C is
primarily to shake credit of the witness, it is only to put the court on guard, to scrutinise the
evidence with great care. Thereby it is duty of all judicial officers to pay special attention to
the provisions of section 161, 164 of Code with reference to Section 145 of Evidence Act, so
as to enable them to have clear notions about all relevant provisions in this regard.