Recording evidence which is not in 161 crpc statement
Tashi Norbu Basi
(Querist) 03 March 2013
This query is : Resolved
Dear experts,
If I am not wrong, our law says that an accused must be given all evidence, that is going to be used against him, in advance to enable him to prepare his defense. So:-
Can statements of Prosecution Witnesses which are not there is the statements recorded u/s 161 CrPC be recorded in Examination-in-Chief?
And if such new evidence is recorded in Chief and objected to by defense, can it be used against accused?
Any statutory provisions or citations with your answers would be most appreciated. Thank you.
Nadeem Qureshi
(Expert) 03 March 2013
Dear Querist
section 161 or any other statement given before police is not accepted before the Court of Law as per section 26 of Indian Evidence Act
26. Confession by accused while in custody of police not to be proved against him -
No confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate1, shall be proved as against such person.
,2[Explanation.—In this section “Magistrate” does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George ,3[***] or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882),4].
COMMENTS
The confession made while in custody is not to be proved against the accused as the provisions of sections 25 and 26 do not permit it unless it is made before a magistrate; Kamal Kishore v. State (Delhi Administration), (1997) 2 Crimes 169 (Del).
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Raj Kumar Makkad
(Expert) 03 March 2013
If any evidence is not recorded under section 161 of Criminal procedure code by police and it do not form part of challan under section 173 then the same cannot be used against the accused person.
Devajyoti Barman
(Expert) 04 March 2013
The witness can always give evidence of what is not there in 161 statements.
This may help prosecution or even the defence.
Raj Kumar Makkad
(Expert) 04 March 2013
A witness is no tprecluded to make statement even beyond his already recorded statement under section 161 but if his name is not included in the list of the witnesses and even his statement has not been recorded earlier by IO, he cannot be produced as a prosecution witness and this is the real query of the querist.
