Bench comprising of Justices Sudhanshu Dhulia and K. Vinod Chandran
Introduction
The Supreme Court, in this significant decision, reaffirmed the limited evidentiary value of statements recorded under Section 161 CrPC, emphasizing that an investigating officer’s (IO's) testimony based solely on such statements is inadmissible. The Court criticized the High Court's reversal of acquittal by relying on the IO’s interpretation of Section 161 statements, holding it to be violative of Section 162 CrPC.
- Section 161 CrPC (Now Section 180 of BNSS,2023)– Examination of witnesses by police during investigation.
- Section 162 CrPC (Now Section 181 of BNSS,2023)– Bar on using Section 161 statements as evidence except for contradiction.
- Section 27, Indian Evidence Act, 1872 (Now Section 23 of BSA,2023) – Admissibility of facts discovered through confession.
- Sections 25 & 26, Indian Evidence Act (Now Section 23 of BSA,2023)– Inadmissibility of confessions to police unless made before a magistrate.
Facts of the Case
The accused was acquitted by the trial court due to lack of substantive evidence as key prosecution witnesses turned hostile. The High Court reversed the acquittal and convicted the accused, heavily relying on the testimony of the Investigating Officer, who referred to statements made by witnesses during investigation under Section 161 CrPC. The High Court viewed these IO narrations as credible proof of motive, conspiracy, and preparation. The accused appealed to the Supreme Court.
Issues Before the Court
- Whether the testimony of the Investigating Officer, based solely on statements recorded under Section 161 CrPC, can be treated as admissible evidence.
- Whether such reliance violates the express bar under Section 162 CrPC.
- Whether conviction can be sustained in absence of substantive evidence when all key witnesses turn hostile.
Contentions of the Petitioner
Section 161 CrPC statements have no substantive evidentiary value; they can only be used to contradict a witness under Section 145 of the Indian Evidence Act. The IO merely quoting statements made to him by others cannot be a substitute for direct evidence in court. The High Court erred in reversing acquittal based on inadmissible material. The witnesses turning hostile leaves no foundation for conviction.
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Contentions of the Respondent
The IO's testimony was reliable and consistent with the prosecution story. The reversal by the High Court was justified as it found sufficient indication of motive and conspiracy from the IO’s narrative based on investigation. Police officers are trustworthy for recoveries and can assist in establishing context even when witnesses resile.
Court’s Analysis
The Court drew a clear distinction between:
- IO's testimony regarding recoveries under Section 27 of the Indian Evidence Act (admissible), and
- IO's testimony about witness statements under Section 161 CrPC (inadmissible under Section 162 CrPC).
The bench observed that:
“Merely because the IOs spoke of such statements having been made by the witnesses during investigation, does not give them any credibility enabling acceptance.”
The Court emphasized that:
- Section 161 CrPC statements are not substantive evidence.
- These statements can only be used for contradiction, if the witness affirms in court.
- The IO cannot vouch for the content of such statements unless the witness reiterates it during trial.
Witnesses had turned hostile, and no corroboration was provided.
The Court rejected reliance on precedents like State (NCT of Delhi) v. Sunil and Rizwan Khan v. State of Chhattisgarh, clarifying that those cases relate to recoveries, not substantive statements of witnesses.
Conclusion
The Supreme Court allowed the appeal and set aside the conviction.
Held that:
“Conviction cannot rest on testimony of IO alone when it is based on inadmissible statements under Section 161 CrPC and when all witnesses have turned hostile.”
Reiterated the bar under Section 162 CrPC, read with Sections 25 & 26 of the Evidence Act, limiting reliance on such statements unless duly proved in court.
