In criminal trials, statements recorded by the police under Section 161 of the Code of Criminal Procedure (CrPC) serve as important investigative tools. However, these statements do not automatically have evidentiary value at the trial stage unless the witness who made the statement is produced and examined in court. A common question arises when the prosecution does not examine a witness whose Section 161 statement was recorded: Can the defense rely on the Investigating Officer’s (IO’s) testimony regarding that witness’s statement to prove the contents without examining the witness?
Legal Position on Section 161 Statements
The Supreme Court has consistently held that Section 161 statements are not substantive evidence. They are meant only to assist police investigation and cannot be used to establish facts in court unless the witness confirms the statement upon examination at trial. This position is reinforced by Section 162 CrPC, which prohibits using these statements as evidence except for contradicting the witness during cross-examination.
Recent Supreme Court Judgment: Renuka Prasad v. State (2025)
In a significant ruling in Renuka Prasad v. State (2025), the Supreme Court reiterated that the Investigating Officer’s testimony attempting to prove or rely upon the Section 161 statements of witnesses not examined in court is inadmissible. The Court emphasized:
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Section 161 statements have no evidentiary value unless the witness themselves testifies and confirms the statement in court
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The IO’s narration of such statements cannot substitute the witness’s direct examination
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Relying solely on IO testimony to prove statements violates Section 162 CrPC and is impermissible
The Court set aside a High Court order that had relied on IO’s version of testimony under Section 161 statements, reinstating the trial court’s acquittal which was based on absence of credible evidence. The Supreme Court clarified 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, unless the witnesses themselves spoke on such matters at trial”
This ruling effectively closes the door on attempts by defense or prosecution to prove statements recorded under Section 161 CrPC without examining the witness.
High Court Rulings Affirms the Principle
High Courts have also reiterated this legal doctrine. For example, the Sikkim High Court in Ganesh Dhakal cases has stressed that statements under Section 161 are not substantive evidence and can only be used for limited contradiction purposes during trial. The Court further clarified that Investigating Officers cannot be asked to prove or narrate contents of such statements in place of witnesses.
Similarly, the Punjab & Haryana High Court and Madhya Pradesh High Court judgments uphold that non-examination of witnesses whose statements under Section 161 are recorded does not allow the IO’s testimony to replace the witness’s direct evidence.
What Happens If Prosecution Does Not Examine a Witness?
If the prosecution does not examine a witness, the defense cannot prove that witness’s statement through the IO. The only remedy for the defense is to summon and examine such witness as a defense witness, thereby subjecting the testimony to courtroom scrutiny and cross-examination.
Scope for Court’s Power to Summon Witnesses
Section 311 CrPC empowers courts to summon any person as witness at any stage if their testimony is necessary for justice. Thus, courts can compel the prosecution or the defense to produce such witnesses for examination when material for a just decision.
Practical Implications for Trial Advocacy
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Witness statements under Section 161 CrPC should never be regarded as “evidence” unless the witness is examined.
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The defense cannot rely on the Investigating Officer to prove such statements if the witness is not examined by prosecution.
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To utilize a witness’s statement excluded by prosecution, defense must examine the witness as a defense witness.
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Courts should be vigilant to exclude undue reliance on IO testimony regarding unexamined witnesses’ statements.
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The burden of proof and right to cross-examination warrant direct evidence from witnesses, not indirect evidence through police testimony.
Conclusion
Recent Supreme Court rulings firmly establish that statements recorded under Section 161 CrPC remain inadmissible as substantive evidence unless corroborated by the witness’s testimony at trial. Investigating Officers cannot legally prove or narrate these statements to substitute for witness examination. The defense must summon the witness to prove their statement if the prosecution fails to do so. This principle safeguards the fundamental right to cross-examination, ensures the integrity of criminal trials, and prevents misuse of investigatory material as evidence.