Ziaul Haque Ansari (Advocate) 05 February 2013

Conviction on the basis of the 161 statement of the accused

In a trial for a case under section 399 and 402 of the IPC, while cross examining the Investigatng Officer the Ld. Lawyer for the defence of the accused person put a question to the I O to the effect that whether he recorded any statement of the accused under section 161 Cr.P.C. or not, to which the IO answered in affirmative and also put forward the same from the Case Diary before the Sessions Judge and accordingly the same was marked as a Exibited document (Exibit "A" Series).

Be it noted here that the said statement of the accused fully corroborates the prosecution story.

NOW the question is, can the conviction be based on the said document exibited by the accused???? If yes, please provide relevant reference.

U R G E N T !!!!!!!!

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1 Replies

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com)) 05 February 2013

No - notwithstanding the fact that it has been erroneously marked as an exhibit, it is not a substantive piece of evidence. The statement of the accused to the police if confessional in nature is hit by Section 25 of the Indian Evidence Act and hence inadmissible. Section 25 reads as follows :-

25. Confession to police- officer not to be proved.- No confession made to a police- officer 2 shall be proved as against a person accused of any offence.

Section 162 of the CrPC which reads as under :-

162. Statements to police not to be signed: Use of statements in evidence.

(1) No statement made by any person to a police officer in the course of' an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of' his statement, if duly proved, may be used by the accused, and with the permission of' the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 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 for the purpose only of explaining any matter referred to in his cross-examination.

(2) Nothing in this section shall be deemed to apply to any statement failling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act.

clearly stipulates that such statements u/s 161 shall not be used in evidence for any purpose, except by defence for contradicting any prosecution witness. The prosecution cannot make use of it.

Hence it is completely devoid of any evidentiary value, however it still can be used as a Disclosure Statement u/s 27 if any object/fact is discovered in consequence of information given by the accused, but nothing more.

Bharat Chugh - Advocate Supreme Court of India

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