“WHAT IS A “CONTRADICTION” AS ENVISAGED BY

S.162 Cr.P.C., HOW TO PROVE IT & WHAT IS ITS

EVIDENTIARY VALUE
SECTION 161 Cr.P.C

“Examination of witnesses by police - (1) Any police

officer making an investigation under this Chapter, or
any police officer not below such rank as the State
Government may, by general or special order,
prescribe in this behalf, acting on the requisition of
such officer, may examine orally any person supposed
to be acquainted with the facts and circumstances of
the case.

2) Such person shall be bound to answer truly all

questions relating to such case put to him by such
officer, other than questions the answers to which
would have a tendency to expose him to a criminal
charge or to a penalty or forfeiture.

3) The police officer may reduce into writing any

statement made to him in the course of an
examination under this section; and if he does so, he
shall make a separate and true record of the
statement of each such person whose statement he
records.
Provided that statement made under this sub-section
may also be recorded by audio-video electronic
means.
 2 Justice V. Ramkumar,
Former Judge, High Court of Kerala

Provided further that the statement of a woman

against whom an offence under Section 354, Section
354A, Section 354B, Section 354C, Section 354D,
Section 376, Section 376A, Section 376B, Section 376C,
Section 376D, Section 376E or Section 509 of the
Indian Penal Code (45 of 1860) is alleged to have been
committed or attempted shall be recorded, by a
woman police officer or any woman officer”.

SECTION 162 Cr.P.C

“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
 3 Justice V. Ramkumar,
Former Judge, High Court of Kerala

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 falling 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.
Explanation - An omission to state a fact or
circumstance in the statement referred to in sub-
section (1) may amount to contradiction if the same
appears to be significant and otherwise relevant
having regard to the context in which such omission
occurs and whether any omission amounts to a
contradiction in the particular context shall be a
question of fact”.

Section 145 in the Indian Evidence Act, 1872

“Cross-examination as to previous statements in
writing.—A witness may be cross-examined as to
previous statements made by him in writing or
reduced into writing, and relevant to matters in
question, without such writing being shown to him, or
being proved; but, if it is intended to contradict him
by the writing, his attention must, before the writing
can be proved, be called to those parts of it which
are to be used for the purpose of contradicting him.”
 4 Justice V. Ramkumar,
Former Judge, High Court of Kerala

The following questions will be taken up for discussion

on 30-06-2021 at 4.30 pm on Beyondlaw CLC platform.
CONTRADICTIONS
Q.1 what is meant by a “contradiction” as generally
understood?

Q.2 What exactly is a “contradiction” as envisaged by the

Proviso to Section 162 (1) Cr.P.C and how does it arise?

Q.3 Is it not a “contradiction” when a cross-examining

counsel asks the witness, through a leading question,
whether he told the police officer something which is not
there in his 161 statement and upon the witness
answering in the affirmative, then confronting the
witness with the fact that such an answer is absent in his
161 statement ?

Q.4 Is not the police under a duty to record Sec. 161

statement of every witness examined by the
prosecution?

Q.5 “Even long delay can be condoned if the witnesses have

no motive in implicating the accused and have given a
plausible reason as to why the F.I. Statement was lodged
belatedly”. Can this be accepted as a sound proposition
of law ?
Q.6 What are the tests applied by courts when there is delay
in recording the statements under Sec. 161 Cr.P.C.?
 5 Justice V. Ramkumar,
Former Judge, High Court of Kerala

Q.7 Can a person shown as an “accused” (not a witness) in

the FIR, be questioned under Section 161 Cr.P.C. ?

Q.8 Is not the non-examination of the police officer who

recorded the F.I. statement and the non-examination of
the investigating officer fatal in all cases ?
Q.9 In a case where the statement of an important witness
recorded under Section 161 Cr.P.C. has not been made
available to the accused, can it result in prejudice leading
to the conviction being vitiated ?
Q.10 Does the word “statement” occurring in Sec. 162 Cr.P.C.
include signs and gestures ?
Q.11 It is said that Section 145 of the Evidence Act is in two
parts. If so, what is the difference between the two
parts ?
Q.12 Which part of Section 145 of the Evidence Act is
applicable for contradicting a prosecution witness under
the proviso to Section 162(1) Cr.P.C ?

Q.13 Is it not permissible under the proviso to Section 162(1)

Cr.P.C to cross-examine a prosecution witness under the
first part of Section 145 of the Evidence Act ?
Q.14 What is the procedure for marking a contradiction ?

Q.15 Will not the case diary contradiction, if properly proved,

constitute an item of evidence which can be relied on by
the Court as a piece of substantive evidence ?
 6 Justice V. Ramkumar,
Former Judge, High Court of Kerala

Q.16 What is the use to which the previous contradictory

statement of a witness can be put to ?
Q.17 Is it not permissible to prove the case diary contradiction
of a witness through the investigating officer who
recorded the case diary statement, without putting the
contradiction to the witness concerned ?
Q.18 A prosecution eye witness who was also the first
informant supported the prosecution case in all its
material particulars during chief examination. But during
his cross-examination he admitted that he could not
identify the culprits due to the darkness. The trial Court,
however, completely believed the witness in view of his
definite version in the F.I. statement, subsequent
statement to the Police and his chief-examination. Is
there any fallacy in the approach of the trial Court ?
Q.19 Can a statement recorded by a police officer under
Section 161 Cr.P.C. be proved by a person other than by
such police officer ?

Q.20 With a view to help the court to evaluate the medical

evidence, the Investigating Officer deposes before court
that a particular charge witness when interrogated by
him during investigation told him that the deceased had
taken a sumptuous breakfast 2 hours before his death.
The defence objects to the above statement. Is the
objection sustainable ?

Q.21 Is it not permissible to mark the entire case diary

statements of witnesses enbloc without incorporating
 7 Justice V. Ramkumar,
Former Judge, High Court of Kerala

the same in the depositions and without putting to the

witnesses the relevant portions sought to be
contradicted?

OMISSION AMOUNTING TO CONTRADICTION

Q.22 a) What is an omission ?
b) Is it correct to say that all omissions do not amount to
contradiction ?

Q.23 Give a few instances of omission amounting to

contradiction?

Kochi, Justice V. Ramkumar

29-06-2021. Former Judge,
High Court of Kerala