1 2025:CGHC:56268-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1719 of 2017 1 - Rajesh S/o Tukan Agaria Aged About 25 Years R/o Village Baryati Sarna, Village Badar, Thana Balrampur, District Balrampur - Ramanujganj Chhattisgarh 2 - Tukan Ram (Died And Deleted ) As Per Court Order Dated 29.08.2025 ... Appellants versus 1 - State Of Chhattisgarh Through Station House Officer Police Station Balrampur District Balrampur Ramanujganj Chhattisgarh ... Respondent For Appellant : Mr. N. K. Malaviya, Advocate For Respondent/State : Mr. Afroz Khan, Panel Lawyer Amicus Curiae : Mr. Rishi Rahul Soni, Advocate (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (19.11.2025) BHOLA NATH KHATAI Digitally signed by BHOLA NATH KHATAI Date: 2025.11.21 19:15:03 +0530 2 Sanjay K. Agrawal, J. 1. Appellant No.1 Rajesh and his father appellant No.2 Tukan Ram have jointly preferred this appeal under Section 374(2) of CrPC calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 11.09.2017 passed by the 2nd Additional Sessions Judge, Ramanujganj of the Court of Additional Sessions Judge, Ramanujganj, District Sarguja (C.G.) in Sessions Trial No.R 37/2016, whereby the appellants have been convicted and sentenced in the following manner:- Conviction Sentence U/s 302/34 of IPC Life Imprisonment and fine of Rs.20,000, in default of fine, 1 year R.I. U/s 4 Chhattisgarh Tonhi Pratadna Niwaran Adhiniyam, 2005 R.I. for 3 years and fine of Rs.5,000, in default of fine, 6 months additional R.I. U/s 5 Chhattisgarh Tonhi Pratadna Niwaran Adhiniyam, 2005 R.I. for 3 years and fine of Rs.5,000, in default of fine, 6 months additional R.I. U/s 323 of IPC Fine of Rs.500, in default of 1 month’s S.I. [All the sentences were directed to run concurrently] 2. During the pendency of this appeal, Appellant No.2 Tukan Ram died, therefore, the appeal in respect of Appellant No.2 Tukan Ram stood abated. Now, the appeal, in so far as it relates to appellant No.1 Rajesh, is being decided by this judgment. 3. The case of prosecution, in short, is that complainant Badan Agaria and appellant No.2 Tukan Ram are real brothers. Deceased Keni Bai was the wife of the complainant Badan 3 Agaria. The son of Appellant No.1 and grandson of Appellant No.2 died one year prior to the date of incident. The two appellants suspected that Keni Bai had played witchcraft on account which the son of appellant No.1 died. The further case of prosecution is that on 23.03.2016 at about 4 to 5 p.m., the appellants assaulted Keni Bai (deceased) with sticks by saying that she is a witch and they would not leave her alive, due to which Keni Bai suffered grievous injuries and died. When the complainant Badan Agaria tried to intervene, Appellant No.1 also assaulted him with a stick causing him injuries. On the information of the complainant Badan (PW-1), Dehati Nalsi Ex. P-1, Dehati Merg Intimation Ex. P-15 and Merg Intimation Ex.P-16 were recorded. FIR was registered vide Ex.P-17. Inquest was conducted vide Ex.P-4 and the dead body of deceased was subjected to postmortem, which was conducted by Dr. Premsai Tirkey (PW-10), who has proved the postmortem report (Ex. P-17A), in which, cause of death has been opined to be hypovolemic shock due to excessive bleeding as a result of head injury and death was homicidal in nature. Pursuant to memorandum statement of appellant No.1 (Ex.P/7), a wooden stick was seized vide Ex.P-9 and on the memorandum statement of appellant No.2 (Ex.P/8), a bamboo stick was seized vide Ex. P-10. After completion of investigation, the appellants were charge-sheeted for the aforesaid offence before the jurisdictional criminal court and the case was ultimately committed to the Sessions Court for trial and its disposal in accordance with law. 4. During the course of trial, in order to bring home the offence, the prosecution examined as many as 11 witnesses and exhibited 28 documents. The statements of accused/appellants were recorded under Section 313 of the 4 CrPC in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, the accused-appellants have neither examined any witness nor exhibited any document in their defence. 5. Learned trial Court, after appreciation of the oral and documentary evidence available on record, though the husband of the deceased Badan (PW-1) has turned hostile and has not supported the case of prosecution, relying upon the decision of the Hon’ble Supreme Court in the case of Bhagwan Dass v. State (N.C.T) of Delhi, AIR 2011 SC 1863 and also relying upon the statement of the Investigating Officer K. K. Shukla (PW-5), convicted and sentenced the appellants as mentioned in the opening para of this judgment against which the present appeal has been preferred by the appellants questioning the legality, validity and correctness of the impugned judgment. 6. Mr. N. K. Malaviya, learned counsel for the appellant, would submit that though complainant Badan (PW-1) has supported the case of prosecution in his 161 CrPC statement but he has not supported the case of prosecution before the trial Court and turned hostile. Therefore, the statement of Badan (PW-1) recorded under Section 161 CrPC could not have been relied upon in view of the proviso contained in Section 162 of CrPC and at best it could be used for contradicting such witness in the manner provided by section 145 of the Indian Evidence Act, 1872. As such, the statement of Badan (PW-1) recorded under Section 161 CrPC is inadmissible in evidence and the trial Court absolutely went wrong in relying upon 161 CrPC statement ignoring the bar contained in Section 162 of CrPC. He would further 5 submit that the statement of the Investigating Officer has no legal sanctity and it is inadmissible in evidence. Hence, the impugned judgment is not Maintainable and the same is liable to be set aside and the appellant is entitled to be acquitted. 7. Mr. Rishi Rahul Soni, amicus curiae, would submit that the statement of the I.O. is inadmissible in evidence in the light of the decision of the Supreme Court in the case of Renuka Prasad v. State Represented by Assistant Superintendent of Police1. 8. Mr. Afroz Khan, learned State counsel, supports the impugned judgment and submits that the prosecution has been able to bring home the offence beyond reasonable doubt and therefore, the conviction of the appellants for the said offence is well merited, as such, the appeal deserves to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. 10. The prosecution has projected Badan (PW-1) as an eye witness who in his 161 CrPC statement has clearly stated that he had seen the incident in which the two appellants assaulted his wife, Keni Bai, with sticks due to which she suffered grievous injuries and died. However, when Badan (PW-1) was examined before the trial Court, he turned hostile and did not support the case of prosecution. In his court statement, he has clearly stated that his wife had consumed hand-made liquor on account of which she fell down and died. He has denied that the two appellants 1 2025 SCC OnLine SC 1074 6 assaulted his wife with wooden stick. As such, his statement is of no useful to the prosecution. 11. The trial Court, in the light of the decision of Bhagwan Dass (supra), relied upon the statement of Badan (PW-1) & I.O. (PW-5) and held in paragraphs 32 to 34 of its judgment as under: 32. इस ्ቚकार स हााሴ किका धार 161 द.्ቚ.स . का तहात ्ቚकारण का सቌኌोሱ का काथन पुलिाሴस/ किचन अधिधाकार ቛኋर ाሴखब्ቍ काथन समान्ोሱ त$र पुर धार 162 (1) द.्ቚ.स . का ्ቚधान का% दृधि'गत रखत हुए सቌኚोሱ मा, ቇኋ्ቨ नहा/ हा%त हा0। िሗका3त धार 162 (2) द.्ቚ.स . का ्ቚधान का अनसर ऐस काथन का उपुोሱ%ग सቌኌोሱ का सቌኚोሱ का% खቄኌ78त कारन का आशोሱ स किकाोሱ जा सकात हा0। 33. उक्त तथ्ोሱ का अधारण, माननोሱ उ्ሴतमा न्ोሱोሱाሴोሱ ቛኋर एका अन्ोሱ न्ोሱोሱ दृ' त भगन दस किरू्ቍ स्टेटे (एन.स.टेC.) ऑफ दिदल्ाሴ ए.आई.आर. 2011 (स.का%) 1863 मा, किनणIोሱ काJ का कि8का 8 (iv, v) मा, अधारिरत किकाोሱ गोሱ हा0 किका, का मामााሴ मा, उल्ाሴख किकाोሱ हा0 किका, मामााሴ मा, स ቦኍमात दिMल्ाሴ% द न पुलिाሴस काथन मा, बतोሱ थ किका, उसका पु्ቔ (अቌኌभोሱक्त) न हाथ- माक्का ाሴत स मारपुटे कार समा काJ हात्ोሱ किकाोሱ हा0। स पुቖኘ%हा हा% गई थ, उस पुलिाሴस ቛኋर ाሴखब्ቍ काथन का सቌኚोሱ का द$रन समान कारए जान पुर उसन पुलिाሴस का% 0स काथन दन स इ कार किकाोሱ थ। उपुर%क्त न्ोሱोሱ दृ' त का किनणIोሱ का पु0र 8 (V) मा, ोሱहा किनणIोሱसर दिदोሱ हा0 किका धार 162 (1) द .्ቚ.स . का तहात ቦኍमात दिMल्ाሴ% द ቛኋर दिदोሱ गए पुलिाሴस काथन का% किचर मा, लिाሴोሱ जा सकात हा0 ए उसका न्ोሱोሱाሴोሱ मा, पुቐኋततR इ कार कारन कि्ቫसनोሱ नहा/ हा0 क्ोሱकिका किनቌኌቐኋत रूपु स उसका पुस पुቐኋततR स%च थ और हा अपुन पु्ቔ अቌኌभोሱक्त का% द78 स बचन चहात थ। 34. उपुर%क्त सम्मानोሱ न्ोሱोሱ दृ' त का अቌኌभकिनधाIरिरत लिस्ቍ त का% ध्ोሱन मा, रखत हुए इस ्ቚकारण मा, उपुाሴ्ቓ तथ्ोሱ पुर किचर कार, त% ोሱहा पुोሱ जात हा0 किका, मार समा का मामााሴ मा, बदन अ.स. 1 ( आर%पु तकान का सग भई 7 ए आर%पु रजाश का चच) ए रमालिश अ. स. 2 ( आर%पु तकान का किपुत ए आर%पु रजाश का दद) न पुलिाሴस का% बोሱन दत समाोሱ अቌኌभोሱक्तगण ቛኋर का न बई का% 878 स मारन बतोሱ हा0 जाबकिका न्ोሱोሱाሴोሱन काथन मा, पुलिाሴस बोሱन स ቌኌभ्ቐ काथन किकाोሱ हाY। रमालिश अ.स. 2 न ्ቚकित पुरण काJ का कि8का 7 मा, स्कार किकाोሱ हा0 किका, " आर%पु रजाश उसका नत ए तकान उसका पु्ቔ हा0, इसलिाሴए उन्हा, बचन का लिाሴए सहा बत नहा/ बत रहा हा0." जिजासस ोሱहा पुोሱ जात हा0 किका सगण न पुቐኋततR स%च का आधार पुर अቌኌभोሱक्तगण जा% किका पु्ቔ, भई, भतजा पु%त हा0, का% द78 स बचन का लिाሴोሱ न्ोሱोሱाሴोሱ मा, सहा काथन नहा/ किकाोሱ हाY।" 12. In this regard, Section 162 of CrPC may be noticed herein which reads as follows: 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 8 for the purpose only of explaining any matter referred to in his cross- examination.” 13. A careful perusal of the aforesaid provision would show that Section 162 of Cr.P.C. ensures that no statement made to the police which is reduced to writing be signed by the person who makes it and that no such statement or any record of such a statement, whether in a police diary or otherwise or a part of such statement or record shall be used for any purpose other than those stated in the section. They may be used by the accused or by the prosecution to contradict such witness in the manner provided under section 145 of the Indian Evidence Act, 1872 and when it is so used, any part thereof may also be used in the re-examination of such witness, but only for the purpose of explaining any matter referred to in his cross- examination. It means that statements made to the police can be used for contradicting a prosecution witness in the manner indicated in Section 145 of the Evidence Act. Statements to the police are inadmissible in any inquiry or trial. 14. Section 162 of Cr.P.C. and its proviso came up for consideration before the Constitution Bench of the Supreme Court, in the matter of Tahsildar Singh and another Vs. State of U.P, AIR 1959 SC 1012 . In the said matter, their Lordships of the Supreme Court held that the intention of the legislature in framing Section 162 of Cr.P.C. was to protect the accused against user of the statements of witnesses made before the police during investigation at the trial presumably on the assumption that the said statements were not made under circumstances inspiring confidence. Both the 9 section and its proviso intended to serve primarily the same purpose i.e. the interest of the accused. Their Lordships also indicated the procedure prescribed for contradicting a witness by his previous statement and held as under : “The procedure prescribed for contradicting a witness by his previous statement made during investigation, is that, 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. The proviso to S. 162 only enables the accused to make use of such statement to contradict a witness in the manner provided by S. 145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross- examining a witness within the meaning of the first part of S. 145 of the Evidence Act. The argument that it would not be possible to invoke the second part of S. 145 of the Evidence Act without putting relevant questions under the first part thereof cannot be accepted. The second part of S. 145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate : A says in the witness-box that B Stabbed C; before the police he had stated that D stabbed C. His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness-box. If he admits his previous statement, no further proof is necessary; if he does not admit, the practice generally followed is to admit it subject to proof by the police officer. On the other hand, if the witness is asked “did you say before the police-officer that you saw a gas light?” and he answers yes, and then the statement which does not 10 contain such recital is put to him as contradiction, the procedure involves two fallacies: one is, it enables the accused to elicit by a purpose of cross-examination what the witness stated before the police- officer. If a police-officer did not make record of a witness’s statement, his entire statement could be brought on record. This procedure, therefore, contravenes the express provision of S. 162 of the Code. The second fallacy is that there is no self-contradiction of the primary statement made in the witness- box, for the witness has yet not made on the stand any assertion at all which can serve as the basis. The contradiction, under the section, should be between what a witness asserted in the witness- box and what he stated before the police- officer, and not between what he said he had stated before the police- officer and what he actually made before him. In such a case the question could not be put at all : only questions to contradict can be put and the question here posed does not contradict; it leads to an answer which is contradicted by the police statement.” In para 17 thereto, while highlighting the object to proviso to Section 162 of Cr.P.C., their Lordships held as under : 17. ................................................................. ..............................................................The section was, therefore, conceived in an attempt to find a happy 'via media', namely, while it enacts an absolute bar against the statement made before a police- officer being used for any purpose whatsoever, it enables the accused to rely upon it for a limited purpose of contradicting a witness in the manner provided by S. 145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction. It cannot be used for corroboration of a prosecution or a defence witness or even a Court witness. Nor can it be used for contradicting a defence or a Court witness. Shortly stated, there is a general bar 11 against its use subject to a limited exception in the interest of the accused, and the exception cannot obviously be used to cross the bar.” 15. Thereafter, in the matter of Sat Paul Vs. Delhi Administration 2 , their Lordships of Hon’ble Supreme Court clearly held that the statement made to the Police can be used only for the purpose of contradicting a prosecution witness in the manner indicated in Section 145 of the Evidence Act and cannot be used for the purpose of seeking corroboration. The following was observed in para 55 by their Lordships : “55. Nor was the High Court competent to use the statements of these witnesses recorded by the police during investigation, for seeking assurance for the prosecution story. Such use of the police statements is not permissible. Under the Proviso to Section 162, Cr. P.C. such statements can be used only for the purpose of contradicting a prosecution witness in the manner indicated in Section 145, Evidence Act, and for no other purpose. They cannot be used for the purpose of seeking corroboration or assurance for the testimony of the witness in court.” 16. Similarly, in the matter of Hazari Lal Vs. State (Delhi Administration) 3 , it has been held that the statement made by the witness during the course of investigation cannot be used as substantive evidence and observed as under : “Section 162 of the Code of Criminal Procedure imposes a bar on the use of any statement made by any person to a Police Officer in the course of investigation at any enquiry or trial in respect of any offence under investigation at the time when such statement was made, except for the purpose of contradicting the witness in the 2 (1976) 1 SCC 727 3 (1980) 2 SCC 390 12 manner provided by Section 145 of the Indian Evidence Act. Where any part of such statement is so used any part thereof may also be used in the re- examination of the witness for the limited purpose of explaining any matter referred to in his cross-examination. The only other exceptions to this embargo on the use of statements made in the course of an investigation relates to the statements falling within the provisions of  Section 32(1) of the Indian Evidence Act or permitted to be proved under Section 27 of the Indian Evidence Act. Section 145 of the Evidence Act provides that a witness may be cross-examined as to previous statements made by him in writing and reduced into writing and relevant to matters in question, without such writing being shown to him or being proved but, that 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.” 17. Thereafter, in the matter of Ram Prasad Vs. State of Maharashtra 4 , the following has been held in para 15 : 15. Be that as it may, the question is whether the court could treat it as an item of evidence for any purpose. Section 157 of the Evidence Act permits proof of any former statement made by a witness relating to the same fact before any authority legally competent to investigate the fact but its use is limited to corroboration of the testimony of such a witness. Though a police officer is legally competent to investigate, any statement made to him during such investigation cannot be used to corroborate the testimony of a witness because of the clear interdict contained in Section 162 of the Code. But a statement made to a magistrate is not affected by the prohibition contained in the said Section. A magistrate can record the statement of a person as provided in Section 164 of the Code and such statement would either be elevated to the status of Section 32 if the maker 4 (1999) 5 SCC 30 13 of the statement subsequently dies or it would remain within the realm of what it was originally. A statement recorded by a magistrate under Section 164 becomes usable to corroborate the witness as provided in Section 157 of the Evidence Act or to contradict him as provided in Section 155 thereof. 18. In the matter of Omkar Namdeo Jadhao and others vs. Second Additional Sessions Judge, Buldana and another5, it has been held by the Supreme Court that the statement recorded under Section 161 of Cr.PC can be used at the trial only for the purposes of contradictions or omissions when the witnesses are examined in the Court. 19. Further, in the matter of Vijender Vs. State of Delhi 6 , it has been held by the Supreme Court that a statement made before a police officer during investigation cannot be used for any purpose whatsoever; except when it attracts the provisions of Section 27 or Section 32(i) of the Evidence Act. If, however, such a statement is made by a witness examined by the prosecution it may be used by the accused to contradict such a witness, and with the permission of the Court, by the prosecution in accordance with Section 145 of the Evidence Act. 20. Similarly, in the matter of V. K. Mishra and another Vs. State of Uttarakhand and another7, their Lordships of Supreme Court has held that the statement recorded under Section 161(1) Cr.P.C. is inadmissible in evidence and cannot be relied upon to contradict the statement and the same can be used only to prove the contradictions 5 (1996) 7 SCC 498 6 (1997) 6 SCC 171 7 (2015) 9 SCC 588 14 and/or omissions and the following was observed in para 16, 17, 18 & 19: 16. “Section 162 Cr.P.C. bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such wit- nesses as indicated there. The statement made by a witness before the police under Section 161(1) Cr.P.C. can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162 (1) Cr.P.C. The statements un- der Section 161 Cr.P.C. recorded during the in- vestigation are not substantive pieces of evidence but can be used primarily for the limited pur- pose:- (i) of contradicting such witness by an ac- cused under Section 145 of Evidence Act; (ii) the contradiction of such witness also by the prose- cution but with the leave of the Court and (iii) the re-examination of the witness if necessary. 17. The Court cannot suo moto make use of statements to police not proved and ask question with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 Cr.P.C. “if duly proved” clearly show that the record of the statement of witnesses cannot be admitted in evidence straightway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross-ex- amination of the investigating officer. Statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of Evidence Act that is by draw- ing attention to the parts intended for contradic- tion. 18. Section 145 of the Evidence Act reads as un- der: 145. 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 ques- tion, without such writing being shown to 15 him, or being proved; but, if it is intended to contradict him by the writing, his at- tention 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. 19. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his pre- vious statement reduced into writing, the atten- tion of such witness must be called to those parts of it which are to be used for the purpose of con- tradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examina- tion. The attention of witness is drawn to that part and this must reflect in his cross- examina- tion by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradic- tion and it will be read while appreciating the evi- dence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposi- tion. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the in- vestigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to con- tradict him, then the court cannot suo moto make use of statements to police not proved in compliance with Section 145 of Evidence Act that is, by drawing attention to the parts intended for contradiction.” 16 21. The principles of law laid down by their Lordships of the Supreme Court in V.K. Mishra (supra ) , has been followed with approval by their Lordships in the matter of Krishan Chander Vs. State of Delhi 8 . The similar proposition has been laid down by Hon’ble Supreme Court recently in the matter of Parvat Singh Vs. the State of Madhya Pradesh 9 , holding that a statement recorded under Section 161 of Cr.P.C. is inadmissible in evidence and cannot be relied upon or used to convict the accused. 13.1 It is required to be noted that it was a black night (Amavasya) at the time of incident. It was a dark night as the incident has happened between 4-5 a.m. PW8 in her statement recorded under Section 161 Cr.P.C. has stated that she has seen all the accused in the light of the torch. She has stated that Bal Kishan – original accused no.1 was having an axe and other four were armed with lathis. She had also stated in her statement under Section 161 Cr.P.C. that Bal Kishan – original accused no.1 gave the axe blow on the neck of the deceased due to the enmity and earlier dispute and other accused were telling to run away immediately and thereafter all the five accused ran away from behind the cattle shed/house. She stated that she had identified all the accused in the light of the torch and also by voice. According to her after she shouted, other persons came. However, there is material improvement in her deposition before the Court. In her deposition, she has stated that accused Santosh and Rakesh caught hold of Bal Kishan – deceased. In her deposition, she has also stated that there was a chimney light in the cattle shed. She has also stated in her deposition that the accused ran away from the nearby agricultural field of sugarcane. Therefore, the deposition of PW8 is full of material contradictions and improvements so far as original accused Nos. 2 to 5 is concerned. It is required to be noted that no other independent witness even named by PW8 has supported the 8 (2016) 3 SCC 108 9 (2020) 4 SCC 33 17 case of the prosecution. Though, according to PW8, she identified the accused in the light of the torch, there is no recovery of torch. There is material improvement so far as the chimney light is concerned. In her deposition, she has not stated anything that the appellants – original accused nos. 2 to 5 were having the lathis, though she has stated this in her statement under Section 161 Cr.P.C. The High Court has observed relying upon her statement recorded under Section 161 Cr.P.C. that the appellants herein – accused nos. 2 to 5 were having lathis. However, as per the settled preposition of law a statement recorded under Section 161 Cr.P.C. is inadmissible in evidence and cannot be relied upon or used to convict the accused. As per the settled proposition of law, the statement recorded under Section 161 Cr.P.C. can be used only to prove the contradictions and/or omissions. Therefore, as such, the High Court has erred in relying upon the statement of PW8 recorded under Section 161 Cr.P.C. while observing that the appellants were having the lathis. 13.2 As observed hereinabove in her statement under Section 161 Cr.P.C., she has never stated that accused Santosh and Rakesh caught hold of Bal Kishan, but stated that the appellants herein told to run away as other persons have woken. In the facts and circumstances of the case, there are material contradictions, omissions and/or improvements so far as the appellants herein – original accused nos. 2 to 5 are concerned and therefore we are of the opinion that it is not safe to convict the appellants on the evidence of the sole witness of PW8. The benefit of material contradictions, omissions and improvements must go in favour of the appellants herein. Therefore, as such the appellants are entitled to be given benefit of doubt. 22. In the matter of Virender Singh Vs. State of Harayana 10 , it has been held by the Supreme Court that a statement recorded under Section 161 of Cr.P.C. does not constitute substantive evidence under Section 3 of the Evidence Act 10 (2017) 11 SCC 126 18 and it can be relied upon by the Court to convict the accused in absence of substantive evidence. 23. In the matter of Somasundaram Alias Somu Vs. State represented by the Deputy Commissioner of Police 11 , it has been held by the Hon’ble Supreme Court that the substantive evidence is the evidence rendered in the Court and the statement recorded under Section 164 of Cr.PC is not a substantive evidence to convict the accused on the said basis and held in para 84 as under : “84. Thus, in a case where a witness, in his statement under Section 164  CrPC, makes culpability of the accused beyond doubt but when he is put on the witness stand in the trial, he does a complete somersault, as the statement under Section 164 is not substantial evidence then what would be the position? The substantive evidence is the evidence rendered in the court. Should there be no other evidence against the  accused, it would be impermissible to convict the accused on the basis of the statement under Section 164.” 24. Recently in the matter of Anees v. State Government of NCT12, the Supreme Court has clearly held that the statement made by a witness before the police under Section 161(1) CrPC can be used only for the purpose of contradicting such witness and observed in paragraphs – 64 & 65 as under: 64. Section 162 CrPC bars the use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated therein. The statement made by a witness before the Police under Section 161(1) CrPC can be used only for the purpose of contradicting such 11 (2020) 7 SCC 722 12 (2024) 15 SCC 48 19 witness on what he has stated at the trial as laid down in the proviso to Section 162(1) CrPC. The statements under Section 161 CrPC recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose: (I) of contradicting such witness by an accused under Section 145 of the Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the court; and (iii) the re-examination of the witness if necessary. 65. The court cannot suo motu make use of statements to police not proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court. The words “if duly proved” used in Section 162 CrPc clearly ;show that the record of the statement of witnesses cannot be admitted in evidence straightaway, nor can be looked into, but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross- examination and also during the cross-examination of the investigating officer. The statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of the Evidence Act, ;that is, by drawing attention to the parts intended for contradiction.” 25. In view of the aforesaid legal position, it is quite vivid that the statement under Section 161 CrPC cannot be used as a substantive piece of evidence except for limited purpose of contradiction of such witness as indicated therein. However, the trial Court went wrong in relying upon the 161 CrPC statement of Badan (PW-1) as an eye witness for conviction of the appellant though PW-1 has turned hostile and has not supported the case of prosecution even being asked leading question to him. The decision of the Supreme Court in the matter of Bhagwan Dass (supra) is clearly distinguishable and not applicable in the facts of the present case, therefore, the finding recorded by the trial Court in this regard is set- aside. 20 26. Though the eye witness has turned hostile and has not supported the case of prosecution yet the trial Court relied upon the statement of the Investigating Officer K. K. Shukla (PW-5) and proceeded to convict the appellants on the basis of the statement of the I.O. In this regard, the decision of the Supreme Court in the matter of Renuka Prasad (supra) may be noticed wherein it has been clearly held that the statement of the Investigating Officer has no legal sanctity and observed in para-26 as under: “26. The statements made by the IOs regarding the motive, conspiracy and preparation comes out as the prosecution story, as discernible from the section 161 statements of various witnesses who were questioned by the police during investigation; which statements are wholly inadmissible under Section 162of the CrPC. 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 of such motive or acts of commission or commission or instances from which conspiracy could be inferred as also the preparation, established beyond reasonable doubt. We are unable to find either the motive, the conspiracy or the preparation or even the crime itself to have been established in Court. The witnesses had turned hostile, for reasons best known to themselves. The only inference possible, on the witnesses turning hostile is that either they have been persuaded for reasons unknown or coerced into resiling from the statements made under Section 161 or that they had not made such statements before police officers. Merely because the story came out of the mouth of the IO, it cannot be believed and a legal sanctity given to it, higher than that provided to Section 161 statements under Section 162 of the CrPC. 27. In that view of the matter, the conviction recorded against appellant No.1 relying upon the 161 CrPC statement of 21 Badan (PW-1) and the statement of the Investigating Officer cannot be sustained and is hereby set aside. 28. Accordingly, the appeal is allowed. The impugned judgment is hereby set aside and appellant No.1 Rajesh is acquitted of the charges levelled against him. 29. Appellant No. 1 is on bail. He need not surrender, however, his bail bonds shall remain in force for a period of six months in view of the provisions contained in Section 437A of the CrPC. 30. Let a certified copy of this judgment along with the original record be transmitted forthwith to the concerned trial Court for necessary information & action, if any. 31. We render a word of appreciation to the amicus curiae, Mr. Rishi Rahul Soni, for rendering valuable assistance in the disposal of this appeal. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Khatai