S. 145 Evidence Act | Allahabad High Court Clarifies Procedure To Contradict Witnesses Using Omissions In S. 161 CrPC Statements
The Allahabad High Court last week clarified the exact procedure under Section 145 of the Indian Evidence Act, read with Section 162 of the CrPC, which needs to be adopted for contradicting a witness during a trial based on omissions in his previous statement made to the police u/s 161 of the CrPC.
A bench of Justice JJ Munir and Justice Vinai Kumar Dwivedi held that a casual confrontation of a witness in the dock with the statement taken down by the Police, where there was an omission, cannot serve the purpose of the proviso to Section 162 CrPC.
The Bench stressed that unless the Investigating Officer (IO) duly proves the material omission, the witness cannot be discredited.
The Court made these significant evidentiary observations while dismissing an appeal filed by a murder convict (Tilluka @ Manoj), who challenged his life sentence for setting his sister-in-law on fire.
Case in brief
As per the prosecution's case, on July 2, 2015, when the victim-deceased (Satyavati) demanded return of the borrowed money, the appellant (Tilluka @ Manoj), became agitated and left threateningly.
When he returned half an hour later, he doused the deceased with kerosene oil and set her afire employing a matchstick. The victim sustained substantial burn injuries, and her dying declaration was recorded by an Additional City Magistrate on the same day.
During the treatment, she died due to Septicemic Shock resulting from the ante-mortem burn injuries. Consequently, the case was converted to Section 302 IPC and the IO submitted a charge-sheet against the appellant. The implication of the other named accused was found to be false.
During the trial, the prosecution examined Avaran Singh (PW-2), who testified that while he was at his home, he heard cries regarding the fire coming from the informant's house. When he rushed to the spot, he saw the victim in flames.
He also stated that he spotted the appellant there and that the deceased was crying repeatedly and saying that the appellant had doused her in kerosene and set her afire.
Now, in his cross-examination, the defence confronted him with his Section 161 CrPC statement and pointed out the omission that he had failed to tell the police that he had heard the victim shout Tilluka's name.
In response, PW-2 stated that he had told the police about this fact; however, if it had not been recorded, he could not say why it had not been done.
Now, the Trial Court used this unproven omission in the police record to discredit his testimony. The division bench, however, found this approach to be flawed and opined that the trial Court had fundamentally misapplied the proviso to Section 162 CrPC.
High Court's observations
In its 23-page judgment, the High Court explained the entire procedure for contradicting a witness to his earlier statement made under Section 161 CrPC.
The bench extensively relied upon the Supreme Court's Constitution Bench judgment in Tahsildar Singh v. State of UP 1959 and the recent Judgment in Vinod Kumar v. State (NCT of Delhi) 2025 LiveLaw (SC) 203.
The bench also took into account the proviso to Section 162 CrPC, which states that a statement of the witness under Section 161 CrPC by a police officer in the course of investigation, can be used to contradict such witness with reference to what he testifies in Court, if the earlier statement before the Police is duly proved in the manner provided under Section 145 Evidence Act.
Against this backdrop, the Bench categorically specified that the following step-by-step procedure must be followed in this strict sequence:
- The trial Judge should mark the portions of the prior statements used to contradict the witness. The said portions can be put in brackets and marked as AA, BB, etc. The marked portions cannot form a part of the deposition unless the same are proved
- This specific marked omission must then be put to the witness.
- If the witness admits the omission, that portion of the police statement stands proved and can be used for contradiction.
- If the witness denies the omission (as PW-2 did in the present case, by claiming he told the police but they failed to record it), the IO who took down the statement must be required to prove the material omission.
The High Court observed:
"This is not what has been done by the Trial Court. A casual confrontation of a witness in the dock by the statement taken down by the Police, where there was an omission, cannot serve the purpose of the proviso to Section 162 CrPC The witness could, therefore, not be held discredited on the basis of his statement under Section 161 CrPC regarding the fact that he said in Court that he heard Satyavati shout that Tilluka had doused her in kerosene oil and set her afire".
Because the IO was never made to formally prove the omission, the High Court ruled that PW-2's testimony in the dock remained "absolutely admissible and also reliable" as he was not discredited in accordance with the correct procedure.
The bench further found the dying declaration to be unimpeachable and the testimonies of the res gestae witnesses (such as PW-2) to be fully reliable. In view of this, the High Court upheld the appellant's conviction under Section 302 IPC.
Counsel for the Appellant: Mohammad Haadi Zaidi, Phoolbadan Yadav, Swati Agrawal Srivastava, Varsha Srivas, Zia Naz Zaidi
Counsel for the Respondent: G.A.
Case title - Tilluka @ Manoj vs State of UP 2026 LiveLaw (AB) 374
Citation: 2026 LiveLaw (AB) 374