Himachal Pradesh High Court
Reserved On: 24.02.2025 vs State Of Himachal Pradesh on 3 March, 2025
2025:HHC:4599 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 464 of 2010 Reserved on: 24.02.2025 Date of Decision: 0403.2025 Fuman Singh ...Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Ajay Sharma, Senior Advocate with Mr. Atharv Sharma.
For the Respondent : Mr. Gautam Sood, Deputy Advocate General for respondent-State.
Rakesh Kainthla, Judge The present appeal is directed against the judgment and order of sentence dated 23.09.2010 passed by learned Special Judge, Una, District Una, H.P. (learned Trial Court) vide which the appellant (accused before the learned Trial Court) was convicted of the commission of an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (in short 'NDPS Act') and was sentenced to undergo rigorous imprisonment for two years, pay a fine of ₹25,000/- and in default of payment of fine to further undergo rigorous 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2
2025:HHC:4599 imprisonment for six months for the commission of aforesaid offence. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for the commission of an offence punishable under Section 15 of the NDPS Act. It was asserted that HC Sanjay Kumar (PW-10), HC Ranjit Singh (PW-1), HHC Mohinder Singh (not examined), and Constable Gurdiyal Singh (PW-2) were present at Chhetran on a link road leading from Kungrat to Bidarwal Chowk on 10.08.2009 in a private vehicle. The accused was coming from Bidarwal Chowk carrying with him a blue bag (Ext.P-1). The accused returned after seeing the headlight of the vehicle and started walking briskly. HC Sanjay Kumar (PW-10) apprehended him with the help of accompanying police officials. The accused revealed his name as Fuman Singh on enquiry. The police checked the bag being carried by the accused. One grey polythene bag containing Poppy Husk (Ext.P-2) was found in the blue bag. The place was lonely; the night was dark, and no vehicle or person was moving 3 2025:HHC:4599 on the road. Hence, HC Sanjay Kumar (PW-10) weighed the Poppy Husk in the presence of police officials and found its weight to be 11 kg 500 grams. The Poppy Husk was put in the same polythene. The polythene was put in the blue bag, and the bag (Ext.P-1) was sealed with one seal impression of seal 'J'. The seal impression (Ext. PA) was taken on separate pieces of cloth. NCB-I Form (Ext.PW-7/A was filled in triplicate. A seal impression was put on the NCB-I form. The seal was handed over to HC Ranjit Singh (PW-1) after its use. The bag (Ext.P-1) was seized vide memo (Ext. PB). HC Ranjit Singh (PW-1) prepared the Rukka (Ext. PD) and handed it over to Constable Gurdyal Singh (PW-2) with directions to take it to Police Station Haroli. Constable Gurdyal Singh (PW-2) handed over the rukka to ASI Karam Chand (PW-6), who got the F.I.R. (Ext.PW-6/A) registered in the Police Station and handed over the case file to Constable Gurdyal Singh with the direction to carry it to the spot. HC Sanjay Kumar (PW-10) conducted the investigation on the spot. He prepared the site plan (Ext.PW-10/A). He arrested the accused vide memo (Ext.PW-10/B) and recorded the statements of witnesses as per their version. He produced the accused, case file and case property before ASI Karam Chand 4 2025:HHC:4599 (PW-6) on 11.08.2009 at 4:10 a.m. ASI Karam Chand (PW-6) resealed the bag with a seal impression of 'S'. He obtained the sample seal (Ext.PW-6/B) on a separate piece of cloth and NCB-I form. He filled the relevant column of the NCB-I form. He handed over the NCB-I form, sample seal, and case property to MHC Santosh Kumar (PW-7). He deposited all the articles in the Malkhana and made an entry in the Register of Malkhana. He handed over the case property, sample seal, docket, copy of F.I.R. and NCB-I form to HHC Jagdev Chand (PW-8) with the direction to carry them to SFSL Junga vide RC No. 205 of 2009.. HHC Jagdev Chand (PW-8) deposited all the articles at SFSL Junga and handed over the receipt to HC Santosh Kumar (PW-7) on his return. HC Sanjay Kumar (PW-10) sent Reasons of Belief (Ext.PE) to the Superintendent of Police, Una, through Constable Gurdyal Singh (PW-2). He sent the Special Report (Ext. PC) to the Superintendent of Police Una on 12.08.2009 through HC Ranjit Singh (PW-1). Superintendent of Police Una made the endorsement on the Reasons of Belief (Ext.PE) and Special Report (Ex. PC) and handed them over to his Reader, ASI Surjit Singh (PW-5). The result of the analysis (Ext. PX) was issued in which it was shown that the exhibit was a sample of Poppy 5 2025:HHC:4599 straw. The statements of the remaining witnesses were recorded as per their version, and after the completion of the investigation, the challan was prepared and presented before the learned Trial Court.
3 The learned Trial Court charged the accused with the commission of an offence punishable under Section 15 of the NDPS Act, to which he pleaded not guilty and claimed to be tried.
4. The prosecution examined 10 witnesses to prove its case. HC Ranjit Singh (PW-1) and Constable Gurdyal Singh (PW-2) are the witnesses to recovery. Lady Constable Surjit Kaur (PW-3) and HHC Sada Shiv (PW-4) proved the entries in the daily diary. ASI Surjit Singh (PW-5) was working as a Reader to the Superintendent of Police, Una, District Una, H.P., to whom the Special Report and Reasons of Belief were handed over. ASI Karam Chand (PW-6) was officiating as SHO, who signed the F.I.R. and resealed the blue bag. Santosh Kumar (PW-7) was working as MHC, with whom the case property was deposited. HHC Jagdev Singh (PW-8) carried the case property to SFSL, Junga. SI Shakti Singh Pathania (PW-9) prepared the challan. HC 6 2025:HHC:4599 Sanjay Kumar (PW-10) effected the recovery and conducted the investigation.
5. The accused, in his statement recorded under Section 313 of Cr.P.C., denied the prosecution case in its entirety. He stated that the witnesses were official and interested. He was innocent and he was falsely implicated in the case. No defence was sought to be adduced by the accused.
6. The learned Trial Court held that the testimonies of police officials were consistent. The prosecution case cannot be doubted simply because the independent witness was not associated. The statements of official witnesses are creditworthy and cannot be discarded without any reason. It was a case of chance recovery, and the non-association of an independent person is not material. Minor discrepancies in statements are insufficient to discard the prosecution case. The F.I.R. number was mentioned on the documents after the registration of F.I.R., and this would not cast any doubt in the prosecution case. Hence, the accused was convicted and sentenced as aforesaid.
7. Being aggrieved from the judgment and order of sentence passed by the learned Trial Court, the accused has filed 7 2025:HHC:4599 the present appeal asserting that the learned Trial Court erred in convicting and sentencing the accused. There were major contradictions in the statements of witnesses, which affected the core of the prosecution case. Learned Trial Court ignored those contradictions. The police had not associated any independent witnesses even though the place was surrounded by houses. The F.I.R. number was written on the various documents, which shows that the F.I.R. is ante-timed. The compliance of Sections 52 and 55 of the NDPS Act was not made. No document was produced to show the departure of the police official. The contradiction regarding the number of NCB-I forms shows that the investigations were not conducted on the spot. Therefore, it was prayed that the present appeal be allowed and the judgment of conviction and order of sentence be set aside.
8. I have heard Mr Ajay Sharma, learned Senior Counsel, assisted by Mr Atharv Sharma, learned counsel for the appellant/accused and Mr Gautam Sood, learned Deputy Advocate General for the respondent-State.
9. Mr. Ajay Sharma, learned Senior Counsel for the 8 2025:HHC:4599 appellant/accused submitted that the learned Trial Court erred in convicting and sentencing the accused. There were various discrepancies in the prosecution version. The vehicle was not mentioned in the daily diary produced on record. The record regarding the ownership of the vehicle was also not produced. This casts a doubt regarding the presence of the police party on the spot. There were major contradictions in the statements of official witnesses and the learned Trial Court erred in relying upon the statements of official witnesses. The report of analysis does not show whether the straw was a plant of Papaver Somniferum-L. He relied upon the judgment of this Court in Rajiv Kumar alias Guglu vs. State of H.P. 2008(1) HLJ 247 (HPHC) in support of his submission.
10. Mr Gautam Sood, learned Deputy Advocate General, submitted that the judgment of this Court in Guglu (supra) is not good law given the judgment of the Hon'ble Supreme Court in State of H.P. v. Nirmal Kaur, 2022 SCC OnLine SC 1462. The evidence on record shows that it was a case of a chance recovery. Hence, the prosecution case cannot be doubted because of the non-association of independent witnesses. Minor contradictions are bound to come with time and cannot be used 9 2025:HHC:4599 for discarding the prosecution case. Hence, he prayed that the present appeal be dismissed.
11. I have considered the submissions made at the bar and have gone through the records carefully.
12. Before adverting to the merits of the case, it is necessary to deal with the submission raised on behalf of the accused that the report of the chemical examiner is required to mention that the poppy straw is of the plant Papaver Somniferum-L. Reliance was placed upon the judgment of this Court in Rajiv Kumar alias Guglu (supra) wherein it was observed as under: -
"10. In this view of the matter, we derive strength from a judgment of the Hon'ble Supreme Court in Amar Singh Ramjibhai Barot v. State of Gujarat (2005) 7 Supreme Court Cases 550. The facts of that case were that some black substance, looking like opium, was recovered from the accused. A sample of the substance was sent to the Chemical Examiner, who reported that the sample was "opium as described in the Narcotic Drugs and Psychotropic Substances Act, 1985, containing 2.8 per cent anhydride morphine and also pieces of poppy flowers (posedoda)". The Hon'ble Supreme Court noticed the definition of opium as given in Section 2(xv) of the Narcotic Drugs and Psychotropic Substances Act, 1985, according to which "opium" means (a) the coagulated juice of opium poppy and (b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but does not include any preparation containing 10 2025:HHC:4599 not more than O.2 per cent of morphine. The Hon'ble Supreme Court held that there did not appear any acceptable evidence that the black substance found with the appellant was "coagulated juice of the opium poppy"
and "any mixture, with or without any neutral material of the coagulated juice of the opium poppy" and that the opinion given by the FSL that it was opium, as described in the Narcotic Drugs and Psychotropic Substances Act, 1985, was not binding on the Court.
13. However, this judgment was considered by the Hon'ble Supreme Court in Nirmal Kaur (supra) which is apparent from para 18 of the judgment, wherein it was observed: -
"18. Shri Parameshwar also agrees with the submissions made by Shri Mukerji that India is also obligated to honour its obligations as per the decisions taken in various International Conventions. Shri Parameshwar has also taken us through different statutes enacted by different countries to highlight the relevant provisions with regard to 'opium'. Shri Parameshwar has also taken us to the judgment rendered by Justice Hidayatullah in the case of Baidyanath Mishra v. State of Orissa, wherein this Court held that when evidence shows that it could be 'opium', it will not be necessary to conduct any further analysis. However, he submitted that the said position would no longer be valid in view of the subsequent judgment of this Court in the case of Harjit Singh v. State of Punjab, wherein this Court considered the provisions of the 1985 Act and held that chemical analysis of the contraband material is essential to prove a case against the accused under the 1985 Act. Shri Parameshwar submitted that the Gujarat High Court in the case of Hathi @ Mangalsinh Ramdayalji v. State of Gujarat as well as the Himachal Pradesh High Court in the cases of Rajiv Kumar alias Guglu v. State of H.P. and State of H.P. v. Des Raj have taken a similar view. Shri 11 2025:HHC:4599 Parameshwar fairly submitted that, as amicus curiae, he has placed both sides before this Court, and it is for this Court to take a view in the interest of justice."
14. After analysing the various provisions of the NDPS Act, international developments, and scientific studies, the Hon'ble Supreme Court held that once the Chemical Examiner mentions in the report that contraband contained 'meconic acid' and 'morphine', it will be sufficient to establish that it is derived from the plant of Papaver Somniferum-L and there is no requirement to mention this fact in the report. It was observed:-
88. We are therefore of the considered view that the High Court was not justified in holding that, even after the Chemical Examiner's report establishes that the contraband contains 'meconic acid' and 'morphine' unless it was established that the same was derived from the species of 'papaver somniferum L', conviction under Section 15 of the 1985 Act could not be sustained.
89. As already discussed hereinabove, once it is established that the seized material contains 'meconic acid' and 'morphine', it will be sufficient to establish that it is derived from the plant 'papaver somniferum L' as defined in sub-clause (a) of Clause (xvii) of Section 2 of the 1985 Act.
90. We further find that the High Court was also not justified in observing that the Chemical Examiner's report, in the alternative, should establish that the seized material is a part of any other species of 'papaver' from which 'opium' or any 'phenanthrene alkaloid' could be extracted and which has been notified by the Central Government as 'opium' for the purpose of the 1985 Act.
We fail to understand as to how a Chemical Examiner 12 2025:HHC:4599 could be asked whether the seized material was a part of any other species of 'papaver' from which 'opium' or any other 'phenanthrene alkaloid' could be extracted when there are no such species of 'papaver' which has been notified by the Central Government to be 'opium poppy' for the purpose of the 1985 Act.
91. In the result, we hold that, once a Chemical Examiner establishes that the seized 'poppy straw' indicates a positive test for the contents of 'morphine' and 'meconic acid', it is sufficient to establish that it is covered by sub- clause (a) of Clause (xvii) of Section 2 of the 1985 Act and no further test would be necessary for establishing that the seized material is a part of 'papaver somniferum L'. In other words, once it is established that the seized 'poppy straw' tests positive for the contents of 'morphine' and 'meconic acid', no other test would be necessary for bringing home the guilt of the accused under the provisions of Section 15 of the 1985 Act.
15. Thus, in view of the binding precedent of the Hon'ble Supreme Court in Nirmal Kaur (supra), the judgment of Rajiv Kumar alias Guglu (supra) cannot be followed, and the submission that the Chemical Examiner is required to mention that the Poppy straw was an extract of the plant of papaver somniferum-L is not acceptable.
16. In the present case, the result of analysis specifically mentions that the exhibit under reference gave positive results for the presence of Morphine, Codeine, Thebaine, Paperverine and Meconic acid in the exhibit. All the above tests identified the 13 2025:HHC:4599 presence of Opium Poppy (Papaver somniferum) species in the exhibit and thus the sample of Poppy straw.
17. Since the report specifically mentions that the exhibit contained 'morphine and meconic acid', the report duly establishes that the analysed substance was Poppy straw in terms of the judgment in terms of Nirmal Kaur (supra) and the submission that the substance is not proved to be Poppy straw is rejected.
18. HC Sanjay Kumar (PW-10) stated that he, HC Ranjit Singh (PW-1), HHC Mohinder Singh and Constable Gurdyal Singh (PW-2) were on patrolling duty in a private vehicle bearing registration No. HP19A-1419 belonging to HC Ranjit Singh (PW-1). An entry No. 9 (Ext. PW3/A) was recorded to this effect. They were going from Kungrath towards Bidhrowal when the accused came on foot from the opposite side. He was carrying a blue bag on his left shoulder. The accused turned back after seeing the light of the car and tried to run away. The police got out of the car and apprehended the accused. The accused revealed his name as Fuman Singh after enquiry. The police checked the blue bag and found a plastic envelope of grey colour 14 2025:HHC:4599 inside the blue bag, which contained a Poppy straw/husk. There was no house in the vicinity. No vehicle was moving. It was a night. He took out the weights and scales from the Investigating Kit and weighed the Poppy straw/husk. The total weight of Poppy straw/husk was found to be 11.5 kg. The Poppy straw was put in a grey plastic bag. The bag was put inside the blue bag, and the blue bag was sealed with one seal impression of seal 'J. Seal impression (Ext. PA) was taken on a piece of cloth. NCB-I form was filled in triplicate. The case property was seized vide seizure memo (Ext. PB). He identified the case property in the Court.
19. His testimony regarding the departure of the police party in a private vehicle is duly supported by the entry (Ext.PW-3/A), which mentions that HC Sanjay Kumar (PW-10), HHC Mohinder Singh, and Contable Gurdyal Singh (PW-2) were sent to patrol in a private vehicle towards Haroli etc.
20. It was submitted that the name of the owner of the vehicle or its registration number was not mentioned in the entry in the daily diary, and this makes the prosecution case suspect. This submission is not acceptable. No requirement of 15 2025:HHC:4599 law/rules was brought to the notice of this Court, which obliges the police officials to enter the name of the owner of the car or its registration number in the daily diary. Therefore, the entry cannot be doubted because the ownership of the vehicle or its registration number was not mentioned in it. Further, the accused has not specifically denied that the police party was going from Kungrat towards Bidhrowal and was present near village Chhetran when they saw the accused in the light of the vehicle. The Court put the question no. 3 to the accused to this effect while recording his statement under section 313 CrPC. The accused responded to question No. 3 by saying that he was unaware of this fact. This reply shows that the presence of the police on the spot was not specifically disputed, and the prosecution case regarding the presence of the police officials on the spot cannot be doubted because the registration number of the car or its ownership was not mentioned in the daily diary.
21. HC Ranjit Singh (PW-1) and Constable Gurdayal Singh (PW-2) made similar statements in their examination- in-chief as was made by HC Sanjay Kumar (PW-10) and their testimonies corroborate the statement of HC Sanjay Kumar in material particulars.
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22. HC Ranjit Singh stated in his cross-examination that his statement was recorded by HC Sanjay Kumar (PW-10) at about 12 midnight. They remained at the spot till 3:30 -4:00 a.m. The statement was recorded as per his version and under his dictation. He volunteered to say that the statement under Section 161 Cr.P.C. was recorded by him in his own hand under the dictation of HC Sanjay Kumar (PW-10). He admitted that the registration number of the car was not mentioned in the statement. He also admitted that it was not mentioned in the statement under Section 161 of Cr.P.C. that the private car belonged to him. He had got recorded that the accused had tried to run away which fact was not mentioned in his statement recorded under Section 161 of CrPC.
23. Constable Gurdyal Singh (PW-2) stated in his cross- examination that he did not get recorded in his statement under Section 161 Cr.P.C. that he had gone to the spot in the car of HC Ranjit Singh (PW-1).
24. It was submitted that the witnesses had not mentioned about going to the spot in the car of HC Ranjit Singh (PW-1), and it is a major improvement, which makes the 17 2025:HHC:4599 prosecution case highly suspect. The witnesses were asked about what was recorded in their statements under Section 161 of Cr.P.C. In this regard, it is to be noticed that the statement recorded under Section 161 of Cr.PC is not a substantive piece of evidence, and the statement made to the police cannot be used for any purpose except to contradict the prosecution witness as per Section 162 of Cr. PC. Therefore, it is not permissible to ask a witness as to what was told by him to the police and prove the statement recorded by the police. In Tahsildar Singh v. State of U.P., 1959 Supp (2) SCR 875: AIR 1959 SC 1012: 1959 Cri LJ 1231 (six- judges bench) learned Counsel for the defence asked the following questions from the witness during his cross- examination:
1. "Did you state to the investigating officer that the gang rolled the dead bodies of Nathi, Saktu and Bharat Singh, and scrutinise them and did you tell him that the face of Asa Ram resembled that of the deceased Bharat Singh?"
2. "Did you state to the investigating officer about the presence of the gas lantern?"
25. Learned Sessions Judge disallowed the questions, after holding that omission does not amount to contradiction and cannot be put under section 161 of Cr.P.C. He held: 18
2025:HHC:4599 "Therefore, if there is no contradiction between his evidence in court and his recorded statement in the diary, the latter cannot be used at all. If a witness deposes in court that a certain fact existed but had stated under Section 161 CrPC either that that fact had not existed or that the reverse and irreconcilable fact had existed, it is a case of conflict between the deposition in the court and the statement under Section 161 CrPC and the latter can be used to contradict the former. But if he had not stated under Section 161 anything about the fact, there is no conflict and the statement cannot be used to contradict him. In some cases, an omission in the statement under Section 161 may amount to contradiction of the deposition in court; they are the cases where what is actually stated is irreconcilable with what is omitted and impliedly negatives its existence."
26. A question arose before the Hon'ble Supreme Court whether the questions were wrongly disallowed. It was held that the form of the questions was defective as they elicited from the witness what he had told the police and were properly disallowed. It was observed:
"13.. ...... The procedure prescribed is that, if it is intended to contradict a witness 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 Section 162 of the Code of Criminal Procedure only enables the accused to make use of such a statement to contradict a witness in the manner provided by Section 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 Section 145 of the Evidence Act. Nor are we impressed by the argument that it would not be possible to invoke 19 2025:HHC:4599 the second part of Section 145 of the Evidence Act without putting relevant questions under the first part thereof. The difficulty is more imaginary than real. The second part of Section 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 it, the practice generally followed is to admit it subject to proof by the police officer. On the other hand, the procedure suggested by the learned counsel may be illustrated thus: If the witness is asked "Did you say before the police officer that you saw a gas light?" and he answers "Yes", then the statement which does not contain such recital is put to him as a contradiction. This procedure involves two fallacies: one is it enables the accused to elicit by a process of cross-examination what the witness stated before the police officer. If a police officer did not make a record of a witness's statement, his entire statement could not be used for any purpose, whereas if a police officer recorded a few sentences, by this process of cross-examination, the witness's oral statement could be brought on record. This procedure, therefore, contravenes the express provision of Section 162 of the Code. The second fallacy is that by the illustration given by the learned counsel for the appellants, 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. This argument of the learned counsel based upon Section 145 of the Evidence Act is, 20 2025:HHC:4599 therefore, not of any relevance in considering the express provisions of Section 162 of the Code of Criminal Procedure. xxxxxxxxx
51. It must not be overlooked that the cross-examination must be directed to bringing out a contradiction between the statements and must not subserve any other purpose. If the cross-examination does anything else, it will be barred under Section 162 which permits the use of the earlier statement for contradicting a witness and nothing else. Taking the example given above, we do not see why cross-examination may not be like this:
Q. I put it to you that when you arrived on the scene X was already running away and you did not actually see him stab D as you have deposed today?
A. No. I saw both events.
Q. If that is so, why is your statement to the police silent as to stabbing?
A. 1 stated both the facts to the police.
The witness can then be contradicted with his previous statement. We need hardly point out that in the illustration given by us, the evidence of the witness in court is direct evidence as opposed to testimony to a fact suggesting guilt. The statement before the police can only be called circumstantial evidence of complicity and not direct evidence in the strict sense. Of course, if the questions framed were:
Q. What did you state to the police? or Q. Did you state to the police that D stabbed X? They may be ruled out as infringing Section 162 of the Code of Criminal Procedure because they do not set up a contradiction but attempt to get a fresh version from the witnesses with a view to contradicting him. How the cross-examination can be made must obviously vary from case to case, counsel to counsel and statement to statement. No single rule can be laid down and the propriety of the question in the light of 21 2025:HHC:4599 the two sections can be found only when the facts and questions are before the court. But we are of the opinion that relevant and material omissions amount to vital contradictions, which can be established by cross- examination and confronting the witness with his previous statement.
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59. This brings us to the consideration of the questions, which were asked and disallowed. These were put during the cross-examination of Bankey, PW 30. They are:
Q. Did you state to the investigating officer that the gang rolled the dead bodies of Nathi, Saktu and Bharat Singh and scrutinized them, and did you tell him that the face of Asa Ram resembled that of the deceased Bharat Singh?
Q. Did you state to the investigating officer about the presence of the gas lantern?
These questions were defective, to start with. They did not set up a contradiction but attempted to obtain from the witness a version of what he stated to the police, which is then contradicted. What is needed is to take the statement of the police as it is, and establish a contradiction between that statement and the evidence in court. To do otherwise is to transgress the bounds set by Section 162 which, by its absolute prohibition, limits even cross-examination to contradictions and no more. The cross-examination cannot even indirectly subserve any other purpose. In the questions with which we illustrated our meaning, the witness was not asked what he stated to the police but was told what he had stated to the police and asked to explain the omission. It is to be borne in mind that the statement made to the police is "duly proved" either earlier or even later to establish what the witness had then stated."
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60. In our opinion, the two questions were defective for the reasons given here and were properly ruled out, even though 22 2025:HHC:4599 all the reasons given by the court may not stand scrutiny. The matter was not followed up with proper questions, and it seems that similar questions on these and other points were not put to the witness out of deference (as it is now suggested) to the ruling of the court. The accused can only blame themselves if they did not." (Emphasis supplied)
27. Thus, no advantage can be derived by the defence from the admission of the witnesses regarding what was told by them to the police.
28. Proviso to section 162 of Cr.P.C. permits the use of the statement recorded by the police to contradict a witness. It reads:
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.
29. Thus, it is apparent that the defence can use the statement to contradict a witness if the statement is proved. It was laid down by the Hon'ble Bombay High Court about a century ago in Emperor vs. Vithu Balu Kharat (1924) 26 Bom. L.R. 23 2025:HHC:4599 965 that the previous statement has to be proved before it can be used. It was observed:
"The words "if duly proved" in my opinion, clearly show that the record of the statement cannot be admitted in evidence straightaway but that the officer before whom the statement was made should ordinarily be examined as to any alleged statement or omitted statement that is relied upon by the accused for the purpose of contradicting the witness; and the provisions of Section 67 of the Indian Evidence Act apply to this case, as well as to any other similar ease. Of course, I do not mean to say that, if the particular police officer who recorded the statement is not available, other means of proving the statement may not be availed of, e.g., evidence that the statement is in the handwriting of that particular officer."
30. It was laid down by the Hon'ble Supreme Court in Muthu Naicker and Others, etc. Versus State of T.N. (1978) 4 SCC 385 that if the witness affirms the previous statement, no proof is necessary, but if the witness denies or says that he did not remember the previous statement, the investigating officer should be asked about the same. It was observed: -
"52. This is the most objectionable manner of using the police statement and we must record our emphatic disapproval of the same. The question should have been framed in a manner to point out that from amongst those accused mentioned in examination-in-chief there were some whose names were not mentioned in the police statement and if the witness affirms this no further proof is necessary and if the witness denies or says that she 24 2025:HHC:4599 does not remember, the investigation officer should have been questioned about it."
31. The Gauhati High Court held in Md. Badaruddin Ahmed v. State of Assam, 1989 SCC OnLine Gau 35: 1989 Cri LJ 1876 that if the witness denies having made the statement, the portion marked by the defence should be put to the investigating officer and his version should be elicited regarding the same. It was observed at page 1880: -
"13. The learned defence counsel has drawn our attention to the above statement of the Investigating Officer and submits that P.W. 4 never made his above statement before the police and that the same being his improved version cannot be relied upon. With the utmost respect to the learned defence counsel, we are unable to accept his above contention. Because, unless the particular matter or point in the previous statement sought to be contradicted is placed before the witness for explanation, the previous statement cannot be used in evidence. In other words, drawing the attention of the witness to his previous statement sought to be contradicted and giving all opportunities to him for explanation are compulsory. If any authority is to be cited on this point, we may conveniently refer to the case of Pangi Jogi Naik v. State reported in AIR 1965 Orissa 205: (1965 (2) Cri LJ
661). Further in the case of Tahsildar Singh v. State of U.P., reported in AIR 1959 SC 1012: (1959 Cri LJ 1231) it was also held that the statement not reduced to writing cannot be contradicted and, therefore, in order to show that the statement sought to be contradicted: was recorded by the police, it should be marked and exhibited. However, in the case at hand, there is nothing on the record to show that the previous statement of the witness was placed before him and that the witness was given the chance for 25 2025:HHC:4599 explanation. Again, his previous statement was not marked and exhibited. Therefore, his previous statement before the police cannot be used, Hence, his evidence that when he turned back, he saw the accused Badaruddin lowering, the gun from the chest is to be taken as his correct version.
14. The learned defence counsel has attempted to persuade us not to rely on the evidence of this witness on the ground that his evidence before the trial Court is contradicted by his previous statement made before the police. However, in view of the decisions made in the said cases we have been persuaded irresistibly to hold that the correct procedure to be followed which would be in conformity with S. 145 of the Evidence Act to contradict the evidence given by the prosecution witness at the trial with a statement made by him before the police during the investigation will be to draw the attention of the witness to that part of the contradictory statement which he made before the police, and questioned him whether he did, in fact, make that statement. If the witness admits having made the particular statement to the police, that admission will go into evidence and will be recorded as part of the evidence of the witness and can be relied on by the accused as establishing the contradiction. However, if, on the other hand, the witness denies to have made such a statement before the police, the particular portions of the statement recorded should be provisionally marked for identification as B-1 to B-1, B-2 to B-2 etc. (any identification mark) and when the investigating officer who had actually recorded the statements in question comes into the witness box, he should be questioned as to whether these particular statements had been made to him during the investigation by the particular witness, and obviously after refreshing his memory from the case diary the investigating officer would make his answer in the affirmative. The answer of the Investigating Officer would prove the statements B-1 to B-1, B-2 to B-2 which are then exhibited as Ext. D. 1, Ext. D. 2 etc. (exhibition 26 2025:HHC:4599 mark) in the case and will go into evidence, and may, thereafter, be relied on by the accused as contradictions.
In the case in hand, as was discussed in above, the above procedure was not followed while cross-examining the witness to his previous statements, and, therefore, we have no alternative but to accept the statement given by this witness before the trial Court that he saw the accused Badaruddin lowering the gun from his chest to be his correct version."
32. Andhra Pradesh High Court held in Shaik Subhani v. State of A.P., 1999 SCC OnLine AP 413: (1999) 5 ALD 284: 2000 Cri LJ 321: (1999) 2 ALT (Cri) 208 that putting a suggestion to the witness and the witness denying the same does not amount to putting the contradiction to the witness. The attention of the witness has to be drawn to the previous statement, and if he denies it, the statement is to be got proved by the investigating officer. It was observed at page 290: -
"24... As far as contradictions put by the defence are concerned, we would like to say that the defence Counsel did not put the contradictions in the manner in which it ought to have been put. By putting suggestions to the witness and the witness denying the same will not amount to putting contradiction to the witness. The contradiction has to be put to the witness as contemplated under Section 145 of the Evidence Act. If a contradiction is put to the witness and it is denied by him, then his attention has to be drawn to the statement made by such witness before the Police or any other previous statement and he must be given a reasonable opportunity to explain as to why such contradiction appears and he may give any answer if the statement made by him is 27 2025:HHC:4599 shown to him and if he confronted with such a statement and thereafter the said contradiction must be proved through the Investigation Officer. Then only it amounts to putting the contradiction to the witness and getting it proved through the Investigation Officer."
33. The Calcutta High Court took a similar view in Anjan Ganguly v. State of West Bengal, 2013 SCC OnLine Cal 22948: (2013) 2 Cal LJ 144: (2013) 3 Cal LT 193: (2013) 128 AIC 546: (2014) 2 RCR (Cri) 970: (2013) 3 DMC 760 and held at page 151: -
"21. It was held in State of Karnataka v. Bhaskar Kushali Kothakar, reported as (2004) 7 SCC 487 that if any statement of the witness is contrary to the previous statement recorded under Section 161, Cr.P.C. or suffers from omission of certain material particulars, then the previous statement can be proved by examining the Investigating Officer who had recorded the same. Thus, there is no doubt that for proving the previous statement Investigating Officer ought to be examined, and the statement of the witness recorded by him, can only be proved by him and he has to depose to the extent that he had correctly recorded the statement, without adding or omitting, as to what was stated by the witness.
23. Proviso to Section 162(1), Cr.P.C. states in clear terms that the statement of the witness ought to be duly proved. The words if duly proved, cast a duty upon the accused who wants to highlight the contradictions by confronting the witness to prove the previous statement of a witness through the police officer who has recorded the same in the ordinary way. If the witness in the cross-examination admits contradictions, then there is no need to prove the statement. But if the witness denies a contradiction and the police officer who had recorded the statement is called by the prosecution, the previous statement of the witness on this point may be proved by the police officer.28
2025:HHC:4599 In case the prosecution fails to call the police officer in a given situation Court can call this witness or the accused can call the police officer to give evidence in defence. There is no doubt that unless the statement as per proviso to sub-section (1) of Section 162, Cr.P.C. is duly proved, the contradiction in terms of Section 145 of the Indian Evidence Act cannot be taken into consideration by the Court.
24. To elaborate on this further, it will be necessary to reproduce Section 145 of the Indian Evidence Act. "S. 145. 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 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."
25. Therefore, it is appropriate that before the previous statement or statement under Section, 161, Cr.P.C. is proved, the attention of the witness must be drawn to the portion in the statement recorded by the Investigating Officer to bring to light the contradiction, a process called confrontation.
26. Let us first understand what is proper procedure. A witness may have stated in the statement under Section 161, Cr.P.C. that 'X murdered Y'. In Court witness state 'Z murdered Y'. This is a contradiction. Defence Counsel or Court and even prosecution if the witness is declared hostile having resiled from previous statement, is to be confronted to bring contradiction on record. The attention of the witness must be drawn to the previous statement or statement under Section 161, Cr.P.C. where it was stated that 'X murdered Y'. Since Section 145 of the Indian Evidence Act uses the word being proved, therefore, in the course of examination of the witness, previous statement or statement under Section 161, 29 2025:HHC:4599 Cr.P.C. will not be exhibited but shall be assigned a mark, and the portion contradicted will be specified. The trial Court in the event of contradiction has to record as under.
27. The attention of the witness has been drawn to portions A to A of statement marked as 1, and confronted with the portion where it is recorded that 'X murdered Y'. In this manner by way of confrontation contradiction is brought on record. Later, when the Investigating Officer is examined, the prosecution or defence may prove the statement, after the Investigating Officer testifies that the statement assigned mark was correctly recorded by him at that stage statement will be exhibited by the Court. Then contradiction will be proved by the Investigating Officer by stating that the witness had informed or told him that 'X murdered Y' and he had correctly recorded this fact.
28. Now a reference to the explanation to Section 162, Cr.P.C. which says that an omission to state a fact or circumstance may amount to contradiction. Say for instance if a witness omits to state in Court that 'X murdered Y', what he had stated in a statement under Section 161, Cr.P.C. will be materia? Contradiction, for the Public Prosecutor, as the witness has resiled from the previous statement, or if he has been sent for trial for the charge of murder, omission to state 'X murdered Y' will be a material omission, and amount to contradiction so far defence of 'W is concerned. At that stage also attention of the witness will be drawn to a significant portion of the statement recorded under Section 161, Cr.P.C. which the witness had omitted to state and note shall be given that attention of the witness was drawn to the portion A to A wherein it is recorded that 'X murdered Y'. In this way, the omission is brought on record. The rest of the procedure stated earlier qua confrontation shall be followed to prove the statement of the witness and the fact stated by the witness.
29. Therefore, to prove the statement for the purpose of contradiction it is necessary that the contradiction or 30 2025:HHC:4599 omission must be brought to the notice of the witness. His or her attention must be drawn to the portion of the previous statement (in the present case statement under Section 161, Cr.P.C.)"
34. A similar view was taken in Alauddin v. State of Assam, 2024 SCC OnLine SC 760 wherein it was observed:
"7. When the two statements cannot stand together, they become contradictory statements. When a witness makes a statement in his evidence before the Court which is inconsistent with what he has stated in his statement recorded by the Police, there is a contradiction. When a prosecution witness whose statement under Section 161(1) or Section 164 of CrPC has been recorded states factual aspects before the Court which he has not stated in his prior statement recorded under Section 161(1) or Section 164 of CrPC, it is said that there is an omission. There will be an omission if the witness has omitted to state a fact in his statement recorded by the Police, which he states before the Court in his evidence. The explanation to Section 162 CrPC indicates that an omission may amount to a contradiction when it is significant and relevant. Thus, every omission is not a contradiction. It becomes a contradiction provided it satisfies the test laid down in the explanation under Section 162. Therefore, when an omission becomes a contradiction, the procedure provided in the proviso to sub-Section (1) of Section 162 must be followed for contradicting witnesses in the cross-examination.
8. As stated in the proviso to sub-Section (1) of section 162, the witness has to be contradicted in the manner provided under Section 145 of the Evidence Act. Section 145 reads thus:
"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 31 2025:HHC:4599 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."
The Section operates in two parts. The first part provides that a witness can be cross-examined as to his previous statements made in writing without such writing being shown to him. Thus, for example, a witness can be cross-examined by asking whether his prior statement exists. The second part is regarding contradicting a witness. While confronting the witness with his prior statement to prove contradictions, the witness must be shown his prior statement. If there is a contradiction between the statement made by the witness before the Court and what is recorded in the statement recorded by the police, the witness's attention must be drawn to specific parts of his prior statement, which are to be used to contradict him. Section 145 provides that the relevant part can be put to the witness without the writing being proved. However, the previous statement used to contradict witnesses must be proved subsequently. Only if the contradictory part of his previous statement is proved the contradictions can be said to be proved. The usual practice is to mark the portion or part shown to the witness of his prior statement produced on record. Marking is done differently in different States. In some States, practice is to mark the beginning of the portion shown to the witness with an alphabet and the end by marking with the same alphabet. While recording the cross-examination, the Trial Court must record that a particular portion marked, for example, as AA was shown to the witness. Which part of the prior statement is shown to the witness for contradicting him has to be recorded in the cross- examination. If the witness admits to having made such a prior statement, that portion can be treated as proved. If 32 2025:HHC:4599 the witness does not admit the portion of his prior statement with which he is confronted, it can be proved through the Investigating Officer by asking whether the witness made a statement that was shown to the witness. Therefore, if the witness is intended to be confronted with his prior statement reduced into writing, that particular part of the statement, even before it is proved, must be specifically shown to the witness. After that, the part of the prior statement used to contradict the witness has to be proved. As indicated earlier, it can be treated as proved if the witness admits to having made such a statement, or it can be proved in the cross-examination of the concerned police officer. The object of this requirement in Section 145 of the Evidence Act of confronting the witness by showing him the relevant part of his prior statement is to give the witness a chance to explain the contradiction. Therefore, this is a rule of fairness.
9. If a former statement of the witness is inconsistent with any part of his evidence given before the Court, it can be used to impeach the credit of the witness in accordance with clause (3) of Section 155 of the Evidence Act, which reads thus:
"155. Impeaching credit of witness. -- The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him--
(1) .............................................. (2) ............................................. (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted."
It must be noted here that every contradiction or omission is not a ground to discredit the witness or to disbelieve his/her testimony. A minor or trifle omission or contradiction brought on record is not sufficient to disbelieve the witness's version. Only when there is a 33 2025:HHC:4599 material contradiction or omission can the Court disbelieve the witness's version either fully or partially. What is a material contradiction or omission depending upon the facts of each case? Whether an omission is a contradiction also depends on the facts of each individual case.
10. We are tempted to quote what is held in a landmark decision of this Court in the case of Tahsildar Singh v. State of U.P.1959 Supp (2) SCR 875 Paragraph 13 of the said decision reads thus:
"13. The learned counsel's first argument is based upon the words "in the manner provided by Section 145 of the Indian Evidence Act, 1872" found in Section 162 of the Code of Criminal Procedure. Section 145 of the Evidence Act, it is said, empowers the accused to put all relevant questions to a witness before his attention is called to those parts of the writing with a view to contradict him. In support of this contention, reliance is placed upon the judgment of this Court in Shyam Singh v. State of Punjab [(1952) 1 SCC 514: 1952 SCR 812]. Bose, J. describes the procedure to be followed to contradict a witness under Section 145 of the Evidence Act thus at p. 819:
Resort to Section 145 would only be necessary if the witness denies that he made the former statement. In that event, it would be necessary to prove that he did, and if the former statement was reduced to writing, then Section 145 requires that his attention must be drawn to these parts which are to be used for contradiction. But that position does not arise when the witness admits the former statement. In such a case all that is necessary is to look to the former statement of which no further proof is necessary because of the admission that it was made."
It is unnecessary to refer to other cases wherein a similar procedure is suggested for putting questions 34 2025:HHC:4599 under Section 145 of the Indian Evidence Act, for the said decision of this Court and similar decisions were not considering the procedure in a case where the statement in writing was intended to be used for contradiction under Section 162 of the Code of Criminal Procedure. Section 145 of the Evidence Act is in two parts: the first part enables the accused to cross- examine a witness as to a previous statement made by him in writing or reduced to writing without such writing being shown to him; the second part deals with a situation where the cross-examination assumes the shape of contradiction: in other words, both parts deal with cross- examination; the first part with cross-examination other than by way of contradiction, and the second with cross- examination by way of contradiction only. The procedure prescribed is that, if it is intended to contradict a witness 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 Section 162 of the Code of Criminal Procedure only enables the accused to make use of such a statement to contradict a witness in the manner provided by Section 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 Section 145 of the Evidence Act. Nor are we impressed by the argument that it would not be possible to invoke the second part of Section 145 of the Evidence Act without putting relevant questions under the first part thereof. The difficulty is more imaginary than real. The second part of Section 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 it, the practice generally followed is to admit it 35 2025:HHC:4599 subject to proof by the police officer. On the other hand, the procedure suggested by the learned counsel may be illustrated thus: If the witness is asked "Did you say before the police officer that you saw a gas light?" and he answers "yes", then the statement which does not contain such recital is put to him as a contradiction. This procedure involves two fallacies: one is it enables the accused to elicit by a process of cross-examination what the witness stated before the police officer. If a police officer did not make a record of a witness's statement, his entire statement could not be used for any purpose, whereas if a police officer recorded a few sentences, by this process of cross-examination, the witness's oral statement could be brought on record. This procedure, therefore, contravenes the express provision of Section 162 of the Code. The second fallacy is that by the illustration given by the learned counsel for the appellants, 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. This argument of the learned counsel based upon Section 145 of the Evidence Act is, therefore, not of any relevance in considering the express provisions of Section 162 of the Code of Criminal Procedure." (emphasis added) This decision is a locus classicus, which will continue to guide our Trial Courts. In the facts of the case, the learned Trial Judge has not marked those parts of the witnesses' 36 2025:HHC:4599 prior statements based on which they were sought to be contradicted in the cross-examination."
35. It was laid down by the Hon'ble Supreme Court in Matadin v. State of U.P., 1980 Supp SCC 157: 1979 SCC (Cri) 627 that the statement under Section 161 Cr.PC is not detailed and is meant to be brief. It does not contain all the details. It was observed at page 158:
"3. The learned Sessions Judge had rejected the evidence of the eyewitnesses on wrong, unconvincing and unsound reasons. The Sessions Judge appears to have been swayed by some insignificant omissions made by some of the witnesses in their statement before the police and on the basis of these omissions dubbed the witnesses as liars. The Sessions Judge did not realise that the statements given by the witnesses before the police were meant to be brief statements and could not take the place of evidence in the Court. Where the omissions are vital, they merit consideration, but mere small omissions will not justify a finding by a court that the witnesses concerned are self- contained liars. We have carefully perused the judgment of the Sessions Judge and we are unable to agree that the reasons that he has given for disbelieving the witnesses are good or sound reasons. The High Court was, therefore, fully justified in reversing the judgment passed by the trial court. We are satisfied that this is a case where the judgment of the Sessions Judge was manifestly wrong and perverse and was rightly set aside by the High Court. It was urged by Mr Mehta that as other appellants except Matadin and Dulare do not appear to have assaulted the deceased, so they should be acquitted of the charge under Section 149. We, however, find that all the appellants were members of the unlawful assembly. Their names find a place in the FIR. For these reasons, we are unable to find any ground to distinguish the case of those 37 2025:HHC:4599 appellants from that of Matadin and Dulare. The argument of the learned counsel is overruled. The result is that the appeal fails and is accordingly dismissed. The appellants who are on bail, will now surrender to serve out the remaining portion of their sentence."
36. Similar is the judgment in Esher Singh v. State of A.P., (2004) 11 SCC 585: 2004 SCC OnLine SC 320 wherein it was held at page 601:
"23. So far as the appeal filed by accused Esher Singh is concerned, the basic question is that even if the confessional statement purported to have been made by A-5 is kept out of consideration, whether residuary material is sufficient to find him guilty. Though it is true as contended by learned counsel for the accused- appellant Esher Singh that some statements were made for the first time in court and not during the investigation, it has to be seen as to what extent they diluted the testimony of Balbeer Singh and Dayal Singh (PWs 16 and 32) used to bring home the accusations. A mere elaboration cannot be termed as a discrepancy. When the basic features are stated, unless the elaboration is of such a nature that it creates a different contour or colour of the evidence, the same cannot be said to have totally changed the complexion of the case. It is to be noted that in addition to the evidence of PWs 16 and 32, the evidence of S. Narayan Singh (PW 21) provides the necessary links and strengthens the prosecution version. We also find substance in the plea taken by learned counsel for the State that evidence of Amar Singh Bungai (PW 24) was not tainted in any way, and should not have been discarded and disbelieved only on surmises. Balbir Singh (PW 3), the son of the deceased has also stated about the provocative statements in his evidence. Darshan Singh (PW 14) has spoken about the speeches of the accused Esher Singh highlighting the Khalistan 38 2025:HHC:4599 movement. We find that the trial court had not given importance to the evidence of some of the witnesses on the ground that they were relatives of the deceased. The approach is wrong. The mere relationship does not discredit the testimony of a witness. What is required is careful scrutiny of the evidence. If after careful scrutiny the evidence is found to be credible and cogent, it can be acted upon. In the instant case, the trial court did not indicate any specific reason to cast doubt on the veracity of the evidence of the witnesses whom it had described to be the relatives of the deceased. PW 24 has categorically stated about the provocative speeches by A-1. No definite cross-examination on the provocative nature of speech regarding the Khalistan movement was made, so far as this witness is concerned."
37. This position was reiterated in Shamim v. State (NCT of Delhi), (2018) 10 SCC 509: (2019) 1 SCC (Cri) 319: 2018 SCC OnLine SC 1559 where it was held at page 513:
"12. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole inspires confidence. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, a hypertechnical approach by taking sentences torn out of context here or there from the evidence, and attaching importance to some technical error without going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Minor omissions in the police statements are never considered to be fatal. The 39 2025:HHC:4599 statements given by the witnesses before the police are meant to be brief statements and could not take the place of evidence in the court. Small/trivial omissions would not justify a finding by the court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtained in the evidence. In the latter, however, no such benefit may be available to it."
38. Similar is the judgment in Kalabhai Hamirbhai Kachhot v. State of Gujarat, (2021) 19 SCC 555: 2021 SCC OnLine SC 347 wherein it was observed at page 564:
"22. We also do not find any substance in the argument of the learned counsel that there are major contradictions in the deposition of PWs 18 and 19. The contradictions which are sought to be projected are minor contradictions which cannot be the basis for discarding their evidence. The judgment of this Court in Mohar [Mohar v. State of U.P., (2002) 7 SCC 606: 2003 SCC (Cri) 121] relied on by the learned counsel for the respondent State supports the case of the prosecution. In the aforesaid judgment, this Court has held that convincing evidence is required, to discredit an injured witness. Para 11 of the judgment reads as under: (SCC p. 611) "11. The testimony of an injured witness has its own efficacy and relevancy. The fact that the witness sustained injuries on his body would show that he was present at the place of occurrence and had seen the occurrence by himself. Convincing evidence would be required to discredit an injured witness. Similarly, every discrepancy in the statement of a witness cannot 40 2025:HHC:4599 be treated as fatal. A discrepancy which does not affect the prosecution case materially cannot create any infirmity. In the instant case, the discrepancy in the name of PW 4 appearing in the FIR and the cross-
examination of PW 1 has been amply clarified. In cross-examination, PW 1 clarified that his brother Ram Awadh had three sons: (1) Jagdish, PW 4, (2) Jagarnath, and (3) Suresh. This witness, however, stated that Jagarjit had only one name. PW 2 Vibhuti, however, stated that at the time of occurrence, the son of Ram Awadh, Jagjit alias Jagarjit was milching a cow and he was also called as Jagdish. Balli (PW 3) mentioned his name as Jagjit and Jagdish. PW 4 also gave his name as Jagdish."
23. The learned counsel for the respondent State has also relied on the judgment of this Court in Naresh [State of U.P. v. Naresh, (2011) 4 SCC 324: (2011) 2 SCC (Cri) 216]. In the aforesaid judgment, this Court has held that the evidence of injured witnesses cannot be brushed aside without assigning cogent reasons. Paras 27 and 30 of the judgment which are relevant, read as under: (SCC pp. 333-
34) "27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds 41 2025:HHC:4599 for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Jarnail Singh v. State of Punjab [Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107], Balraje v. State of Maharashtra [Balraje v. State of Maharashtra, (2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211] and Abdul Sayeed v. State of M.P. [Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] ) ***
30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental dispositions such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
'9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version when the entire evidence is put in a crucible for being tested on the touchstone of credibility.' [Ed.: As observed in Bihari Nath Goswami v. Shiv Kumar Singh, (2004) 9 SCC 186, p. 192, para 9: 2004 SCC (Cri) 1435] Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by 42 2025:HHC:4599 the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. (Vide State v. Saravanan [State v. Saravanan, (2008) 17 SCC 587 :
(2010) 4 SCC (Cri) 580], Arumugam v.
State [Arumugam v. State, (2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130], Mahendra Pratap Singh v. State of U.P. [Mahendra Pratap Singh v. State of U.P., (2009) 11 SCC 334 : (2009) 3 SCC (Cri) 1352] and Sunil Kumar Sambhudayal Gupta v. State of Maharashtra [Sunil Kumar Sambhudayal Gupta v. State of Maharashtra, (2010) 13 SCC 657 : (2011) 2 SCC (Cri) 375]"
24. Further, in Narayan Chetanram Chaudhary v. State of Maharashtra [Narayan Chetanram Chaudhary v. State of Maharashtra, (2000) 8 SCC 457: 2000 SCC (Cri) 1546], this Court has considered the effect of the minor contradictions in the depositions of witnesses while appreciating the evidence in a criminal trial. In the aforesaid judgment, it is held that only contradictions in material particulars and not minor contradictions can be grounds to discredit the testimony of the witnesses. The relevant portion of para 42 of the judgment reads as under: (SCC p. 483) "42. Only such omissions which amount to a contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of the witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differs from person to person. The omissions in the earlier statement if found 43 2025:HHC:4599 to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW 2. Even if there is a contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness."
39. It was laid down by the Hon'ble Supreme Court in Achchar Singh vs State of H.P. AIR 2021 SC 3426 that the testimony of a witness cannot be discarded due to exaggeration alone. It was observed:
"24. It is vehemently contended that the evidence of the prosecution witnesses is exaggerated and thus false. Cambridge Dictionary defines "exaggeration" as "the fact of making something larger, more important, better or worse than it is". Merriam-Webster defines the term "exaggerate" as to "enlarge beyond bounds or the truth".
The Concise Oxford Dictionary defines it as "enlarged or altered beyond normal proportions". These expressions unambiguously suggest that the genesis of an 'exaggerated statement' lies in a fact, to which fictitious additions are made to make it more penetrative. Every exaggeration, therefore, has the ingredients of 'truth'. No exaggerated statement is possible without an element of truth. On the other hand, the Advance Law Lexicon defines "false" as "erroneous, untrue; opposite of correct, or true". Oxford Concise Dictionary states that "false" is "wrong; not correct or true". Similar is the explanation in other dictionaries as well. There is, thus, a marked differential between an 'exaggerated version' and a 'false version'. An exaggerated statement contains both truth and falsity, whereas a false statement has no grain of truth in it (being the 'opposite' of 'true'). It is well said that to make a mountain out of a molehill, the molehill shall have to exist primarily. A Court of law, being mindful of such distinction is duty bound to disseminate 'truth' from 'falsehood' and sift the grain from the chaff 44 2025:HHC:4599 in case of exaggerations. It is only in a case where the grain and the chaff are so inextricably intertwined that in their separation no real evidence survives, that the whole evidence can be discarded. [Sucha Singh v. State of Punjab, (2003) 7 SCC 643, 18.]
25. Learned State counsel has rightly relied on Gangadhar Behera (Supra) to contend that even in cases where a major portion of the evidence is found deficient if the residue is sufficient to prove the guilt of the accused, a conviction can be based on it. This Court in Hari Chand v. State of Delhi, (1996) 9 SCC 112 held that:
"24. ...So far as this contention is concerned it must be kept in view that while appreciating the evidence of witnesses in a criminal trial, especially in a case of eyewitnesses the maxim falsus in uno, falsus in omnibus cannot apply and the court has to make efforts to sift the grain from the chaff. It is of course true that when a witness is said to have exaggerated in his evidence at the stage of trial and has tried to involve many more accused and if that part of the evidence is not found acceptable the remaining part of the evidence has to be scrutinised with care and the court must try to see whether the acceptable part of the evidence gets corroborated from other evidence on record so that the acceptable part can be safely relied upon..."
26. There is no gainsaid that homicidal deaths cannot be left to judicium dei. The Court in their quest to reach the truth ought to make earnest efforts to extract gold out of the heap of black sand. The solemn duty is to dig out the authenticity. It is only when the Court, despite its best efforts, fails to reach a firm conclusion that the benefit of the doubt is extended.
27. An eye-witness is always preferred to others. The statements of P.W.1, P.W.11 and P.W.12 are, therefore, to be analysed accordingly, while being mindful of the 45 2025:HHC:4599 difference between exaggeration and falsity. We find that the truth can be effortlessly extracted from their statements. The trial Court fell in grave error and overlooked the credible and consistent evidence while proceeding with a baseless premise that the exaggerated statements made by the eyewitnesses belie their version."
40. In the present case, the omission is regarding the registration number and the ownership of the vehicle, which is a minor detail and cannot be used to discard the prosecution case regarding the presence of the police party on the spot. Further, the Investigating Officer was not asked about the fact whether HC Ranjit Singh had told him that the accused had tried to run away or not. Hence, the contradiction has not been proved as per the law, and no advantage can be derived from the cross- examination.
41. The statements of prosecution witnesses show that the police party was proceeding in the car when they saw the accused who returned after seeing the headlight of the vehicle. The police became suspicious and apprehended the accused. Thus, it was a case of a chance of recovery.
42. The term chance recovery was explained by the Hon'ble Supreme Court in the State of H.P. v. Sunil Kumar, (2014) 4 SCC 780: (2014) 2 SCC (Cri) 449: 2014 SCC OnLine SC 205, and it 46 2025:HHC:4599 was held that chance recovery means a recovery made by chance or by accident or unexpectedly. When the police were not looking for the drugs nor expected to find the drugs, any recovery is a chance recovery. A positive suspicion of the police official is not sufficient to show that it was not the case of chance recovery. It was observed at page 784:
"13. The expression "chance recovery" has not been defined anywhere and its plain and simple meaning seems to be a recovery made by chance or by accident or unexpectedly. In Mohinder Kumar v. State [(1998) 8 SCC 655: 1999 SCC (Cri) 79] this Court considered a chance recovery as one when a police officer "stumbles on"
narcotic drugs when he makes a search. In Sorabkhan Gandhkhan Pathan v. State of Gujarat [(2004) 13 SCC 608:
(2006) 1 SCC (Cri) 508] the police officer, while searching for illicit liquor, accidentally found some charas. This was treated as a "chance recovery".
14. Applying this to the facts of the present appeal, it is clear that the police officers were looking for passengers who were travelling ticketless and nothing more. They accidentally or unexpectedly came across drugs carried by a passenger. This can only be described as a recovery by chance since they were neither looking for drugs nor expecting to find drugs carried by anybody.
15. It is not possible to accept the view of the High Court that since the police officers conducted a random search and had a "positive suspicion" that Sunil Kumar was carrying contraband, the recovery of charas from his person was not a chance recovery. The recovery of contraband may not have been unexpected, but the recovery of charas certainly was unexpected notwithstanding the submission that drugs are easily 47 2025:HHC:4599 available in the Chamba area. The police officers had no reason to believe that Sunil Kumar was carrying any drugs and indeed that is also not the case set up in this appeal. It was plainly a chance or accidental or unexpected recovery of charas--Sunil Kumar could well have been carrying any other contraband such as, smuggled gold, stolen property or an illegal firearm or even some other drug.
43. In the present case also, the police stopped the accused when he tried to return after seeing the headlights of the car. There is nothing on record to show that the police had any prior information, and the present case will fall within chance recovery.
44. It was submitted that the police had not associated independent witnesses, and this is fatal to the prosecution case. This submission is not acceptable. It was laid down by the Hon'ble Supreme Court in Kashmira Singh Versus State of Punjab 1999 (1) SCC 130 that the police party is under no obligation to join independent witnesses while going on patrolling duty, and the association of any person after effecting the recovery would be meaningless. It was observed:
"3. Learned counsel for the appellant has taken us through the evidence recorded by the prosecution as also the judgment under appeal. Except for the comment that the prosecution is supported by two police officials and not by any independent witness, no other comment 48 2025:HHC:4599 against the prosecution is otherwise offered. This comment is not of any value since the police party was on patrolling duty and they were not required to take along independent witnesses to support recovery if and when made. It has come in the evidence of ASI Jangir Singh that after the recovery had been effected, some people had passed by. Even so, obtaining their counter-signatures on the documents already prepared would not have lent any further credence to the prosecution version."
45. In similar circumstances, it was laid down by this Court in Chet Ram Vs State Criminal Appeal no. 151/2006 decided on 25.7.2018 that when the accused was apprehended after he tried to flee on seeing the police, there was no necessity to associate any person from the nearby village. It was observed: -
"(A)appellant was intercepted and search of his bag was conducted on suspicion, when he turned back and tried to flee, on seeing the police. Police officials did not have any prior information nor did they have any reason to believe that he was carrying any contraband. They overpowered him when he tried to run away and suspected that he might be carrying some contraband in his bag.
Therefore, the bag was searched and charas was recovered. After the recovery of Charas, there was hardly any need to associate any person from the nearby village, because there remained nothing to be witnessed.
It is by now well settled that non-association of independent witnesses or non-supporting of the prosecution version, by independent witnesses where they are associated, by itself is not a ground to acquit an accused. It is also well-settled that the testimony of official witnesses, including police officials, carries the same evidentiary value as the testimony of any other person. The only difference is that Courts have to be 49 2025:HHC:4599 more circumspect while appreciating the evidence of official witnesses to rule out the possibility of false implication of the accused, especially when such a plea is specifically raised by the defence. Therefore, while scrutinizing the evidence of official witnesses, in a case where independent witnesses are not associated, contradictions and inconsistencies in the testimony of such witnesses are required to be taken into account and given due weightage, unless satisfactorily explained. Of course, it is only the material contradictions and not the trivial ones, which assume significance." (Emphasis supplied)
46. It was laid down by the Hon'ble Supreme Court of India in Raveen Kumar v. State of H.P., (2021) 12 SCC 557: (2023) 2 SCC (Cri) 230: 2020 SCC OnLine SC 869 that non-association of the independent witnesses will not be fatal to the prosecution case. However, the Court will have to scrutinise the statements of prosecution witnesses carefully. It was observed on page 566:
"(C) Need for independent witnesses
19. It would be gainsaid that the lack of independent witnesses is not fatal to the prosecution case. [Kalpnath Rai v. State, (1997) 8 SCC 732: 1998 SCC (Cri) 134: AIR 1998 SC 201, para 9] However, such omissions cast an added duty on courts to adopt a greater degree of care while scrutinising the testimonies of the police officers, which if found reliable can form the basis of a successful conviction."
47. This position was reiterated in Rizwan Khan v. State of Chhattisgarh, (2020) 9 SCC 627: 2020 SCC OnLine SC 730, wherein, it was observed on page 633:
50
2025:HHC:4599 "12. It is settled law that the testimony of the official witnesses cannot be rejected on the grounds of non-
corroboration by independent witnesses. As observed and held by this Court in catena of decisions, examination of independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case [see Pardeep Kumar [State of H.P. v. Pardeep Kumar, (2018) 13 SCC 808 :
(2019) 1 SCC (Cri) 420] ].
13. In the recent decision in Surinder Kumar v. State of Punjab [Surinder Kumar v. State of Punjab, (2020) 2 SCC 563 : (2020) 1 SCC (Cri) 767], while considering somewhat similar submission of non-examination of independent witnesses, while dealing with the offence under the NDPS Act, in paras 15 and 16, this Court observed and held as under : (SCC p. 568) "15. The judgment in Jarnail Singh v. State of Punjab [Jarnail Singh v. State of Punjab, (2011) 3 SCC 521 : (2011) 1 SCC (Cri) 1191], relied on by the counsel for the respondent State also supports the case of the prosecution. In the aforesaid judgment, this Court has held that merely because the prosecution did not examine any independent witness, would not necessarily lead to a conclusion that the accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status.
16. In State (NCT of Delhi) v. Sunil [State (NCT of Delhi) v. Sunil, (2001) 1 SCC 652: 2001 SCC (Cri) 248], it was held as under : (SCC p. 655) 'It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust in the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the 51 2025:HHC:4599 presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature.'"
48. Similar is the judgment of this Court in Balwinder Singh & Anr. Vs State of H.P., 2020 Criminal L.J. 1684, wherein it was held: -
"3. (iii) Learned defence counsel, contended that in the instant case, no independent witness was associated by the Investigating Officer, therefore, the prosecution case cannot be said to have been proved by it in accordance with provisions of the Act. Learned defence counsel, in support of his contention, relied upon titled Krishan Chand versus State of H.P.,2017 4 CriCC 531 3(iii)(d). It is by now well settled that prosecution case cannot be disbelieved only because the independent witnesses were not associated."
49. This position was reiterated in Kallu Khan v. State of Rajasthan, (2021) 19 SCC 197: 2021 SCC OnLine SC 1223, wherein it was held at page 204: -
"17. The issue raised regarding conviction solely relying upon the testimony of police witnesses, without procuring any independent witness, recorded by the two courts, has also been dealt with by this Court in Surinder Kumar [Surinder Kumar v. State of Punjab, (2020) 2 SCC 563 : (2020) 1 SCC (Cri) 767] holding that merely because independent witnesses were not examined, the conclusion could not be drawn that the accused was falsely implicated. Therefore, the said issue is also well settled and in particular, looking at the facts of the present case, when the conduct of the accused was found suspicious and a chance recovery from the vehicle used by 52 2025:HHC:4599 him is made from a public place and proved beyond a reasonable doubt, the appellant cannot avail any benefit on this issue. In our view, the concurrent findings of the courts do not call for interference.."
50. A similar view was taken in Kehar Singh v. State of H.P., 2024 SCC OnLine HP 2825 wherein it was observed:
16. As regards non-association of the independent witnesses, it is now well settled that non-association of the independent witnesses or non-supporting of the prosecution version by independent witnesses itself is not a ground for acquittal of Appellants/accused. It is also well settled that the testimonies of the official witnesses, including police officials carry the same evidentiary value as the testimony of any other person. The only difference is that the Court has to be most circumspect while appreciating the evidence of the official witnesses to rule out the possibility of false implication of the accused, especially when such a plea is specifically raised by the defence. Therefore, while scrutinising the evidence of the official witnesses, in cases where independent witnesses are not associated, contradictions and inconsistencies in the testimonies of such witnesses are required to be taken into account and given due weightage, unless satisfactorily explained. However, the contradiction must be material and not trivial one, that alone would assume significance.
17. Evidently, this is a case of chance recovery, therefore, the police party was under no obligation to join independent witnesses while going on patrolling duty and the association of any person after effecting the recovery would be meaningless.
Xxxx
19. A similar reiteration of law can be found in the judgment rendered by the learned Single Judge of this 53 2025:HHC:4599 Court in Avtar @ Tarri v. State of H.P., (2022) Supreme HP 345, wherein it was observed as under: --
"24. As regards the second leg of the argument raised by learned counsel for the appellant, it cannot be said to be of much relevance in the given facts of the case. The fact situation was that the police party had laid the 'nakka' and immediately thereafter had spotted the appellant at some distance, who got perplexed and started walking back. The conduct of the appellant was sufficient to raise suspicion in the minds of police officials. At that stage, had the appellant not been apprehended immediately, police could have lost the opportunity to recover the contraband. Looking from another angle, the relevance of independent witnesses could be there, when such witnesses were immediately available or had already been associated at the place of 'nakka'. These, however, are not mandatory conditions and will always depend on the fact situation of each and every case. The reason is that once the person is apprehended and is with police, a subsequent association of independent witnesses, may not be of much help. In such events, the manipulation, if any, cannot be ruled out."
Xxxx
22. A similar reiteration of law can be found in a very recent judgment of the Coordinate Bench of this Court in Cr. A. No. 202 of 2020, titled Dillo Begum v. State of H.P., decided on 27.03.2024."
51. Thus, in view of the binding precedents of this Court and Hon'ble Supreme Court, the non-association of independent witnesses is not fatal, and the prosecution case cannot be discarded due to the non-association of independent 54 2025:HHC:4599 witnesses. However, the Court will have to carefully scrutinise the testimonies of the police officials.
52. It was submitted that HC Ranjit Singh (PW-1) contradicted himself by saying that his statement was recorded by HC Sanjay Kumar (PW-10) as per his dictation and thereafter by saying that he recorded the statement himself. This shows that the witness is not reliable. Further, HC Ranjit Singh stated that four NCB-I Forms were filled on the spot by the Investigating Officer, whereas HC Sanjay Kumar (PW-10) stated that NCB-I forms were filled by him in triplicate. These contradictions are fatal to the prosecution case. This submission cannot be accepted.
53. The principles of appreciation of ocular evidence were explained by the Hon'ble Supreme Court in Balu Sudam Khalde v. State of Maharashtra, (2023) 13 SCC 365: 2023 SCC OnLine SC 355, as under at page 378: -
Appreciation of oral evidence "25. The appreciation of ocular evidence is a hard task.
There is no fixed or straitjacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
55
2025:HHC:4599 "I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more, particularly keeping in view the deficiencies, drawbacks, and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. III. When an eyewitness is examined at length, it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. IV. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer, not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between 56 2025:HHC:4599 two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI. By and large, a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily, it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence, which so often has an element of surprise. The mental faculties, therefore, cannot be expected to be attuned to absorb the details. VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
IX. By and large, people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to the exact time of an incident or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals, which varies from person to person. XI. Ordinarily, a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination by counsel and, out of 57 2025:HHC:4599 nervousness, mix up facts, get confused regarding the sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved, though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement, though seemingly inconsistent with the evidence, need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent, it would not be helpful to contradict that witness."
[See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat [Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217: 1983 SCC (Cri) 728: AIR 1983 SC 753], Leela Ram v. State of Haryana [Leela Ramv. State of Haryana, (1999) 9 SCC 525: 2000 SCC (Cri) 222: AIR 1999 SC 3717] and Tahsildar Singh v. State of U.P. [Tahsildar Singh v. State of U.P., 1959 SCC OnLine SC 17: AIR 1959 SC 1012]]
54. It was laid down by the Hon'ble Supreme Court in Karan Singh v. State of U.P., (2022) 6 SCC 52: (2022) 2 SCC (Cri) 479: 2022 SCC OnLine SC 253 that the Court has to examine the evidence of the witnesses to find out whether it has a ring of truth or not. The Court should not give undue importance to omission, contradictions and discrepancies which do not go to the heart of the matter. It was observed at page 60: -
"38. From the evidence of Mahender Singh, PW 4, it appears that no specific question was put to him as to 58 2025:HHC:4599 whether the appellant was present at the place of occurrence or not. This Court in Rohtash Kumar v. State of Haryana [Rohtash Kumar v. State of Haryana, (2013) 14 SCC 434: (2014) 4 SCC (Cri) 238] held: (SCC p. 446, para 24) "24. ... The court has to examine whether the evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more, particularly keeping in view the deficiencies, drawbacks, and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken, as to render it unworthy of belief. Thus, the court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness."
39. Referring to Narayan Chetanram Chaudhary v. State of Maharashtra [Narayan Chetanram Chaudhary v. State of Maharashtra, (2000) 8 SCC 457: 2000 SCC (Cri) 1546], Mr Tyagi argued that minor discrepancies caused by lapses in memory were acceptable, contradictions were not. In this case, there was no contradiction, only minor discrepancies.
40. In Kuriya v. State of Rajasthan [Kuriya v. State of Rajasthan, (2012) 10 SCC 433: (2013) 1 SCC (Cri) 202], this Court held: (SCC pp. 447-48, paras 30-32) "30. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis for doubting the case of the prosecution. The courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth 59 2025:HHC:4599 from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even, in law, render credentials to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to the material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence, is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur v. State of Gujarat [Kathi Bharat Vajsur v. State of Gujarat, (2012) 5 SCC 724 : (2012) 2 SCC (Cri) 740], Narayan Chetanram Chaudhary v. State of Maharashtra [Narayan Chetanram Chaudhary v. State of Maharashtra, (2000) 8 SCC 457:
2000 SCC (Cri) 1546], Gura Singh v. State of Rajasthan [Gura Singh v. State of Rajasthan, (2001) 2 SCC 205: 2001 SCC (Cri) 323] and Sukhchain Singh v. State of Haryana [Sukhchain Singh v. State of Haryana, (2002) 5 SCC 100: 2002 SCC (Cri) 961].
31. What is to be seen next is whether the version presented in the Court was substantially similar to what was said during the investigation. It is only when exaggeration fundamentally changes the nature of the case the Court has to consider whether the witness was stating the truth or not. [Ref. Sunil Kumar v. State (NCT of Delhi) [Sunil Kumar v. State (NCT of Delhi), (2003) 11 SCC 367: 2004 SCC (Cri) 1055] ].
32. These are variations which would not amount to any serious consequences. The Court has to accept the 60 2025:HHC:4599 normal conduct of a person. The witness who is watching the murder of a person being brutally beaten by 15 persons can hardly be expected to state a minute-by-minute description of the event. Everybody, and more particularly a person who is known to or is related to the deceased, would give all his attention to take steps to prevent the assault on the victim and then to make every effort to provide him with medical aid and inform the police. The statements which are recorded immediately upon the incident would have to be given a little leeway with regard to the statements being made and recorded with utmost exactitude. It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the court has to be reasonable and practicable. Reference in this regard can be made to Ashok Kumar v. State of Haryana [Ashok Kumar v. State of Haryana, (2010) 12 SCC 350: (2011) 1 SCC (Cri) 266] and Shivlal v. State of Chhattisgarh [Shivlal v. State of Chhattisgarh, (2011) 9 SCC 561: (2011) 3 SCC (Cri) 777]."
41. In Shyamal Ghosh v. State of W.B. [Shyamal Ghosh v. State of W.B., (2012) 7 SCC 646 : (2012) 3 SCC (Cri) 685], this Court held : (SCC pp. 666-67, paras 46 & 49) "46. Then, it was argued that there are certain discrepancies and contradictions in the statement of the prosecution witnesses inasmuch as these witnesses have given different timing as to when they had seen the scuffling and strangulation of the deceased by the accused. ... Undoubtedly, some minor discrepancies or variations are traceable in the statements of these witnesses. But what the Court has to see is whether these variations are material and affect the case of the prosecution substantially. Every variation may not be enough to adversely affect the case of the prosecution.
*** 61 2025:HHC:4599
49. It is a settled principle of law that the court should examine the statement of a witness in its entirety and read the said statement along with the statement of other witnesses in order to arrive at a rational conclusion. No statement of a witness can be read in part and/or in isolation. We are unable to see any material or serious contradiction in the statement of these witnesses which may give any advantage to the accused."
42. In Rohtash Kumar v. State of Haryana [Rohtash Kumar v. State of Haryana, (2013) 14 SCC 434 : (2014) 4 SCC (Cri) 238], this Court held : (SCC p. 446, para 24) "24. ... The court has to examine whether the evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more, particularly keeping in view the deficiencies, drawbacks, and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken, as to render it unworthy of belief. Thus, the court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness."
55. Similar is the judgment in Anuj Singh v. State of Bihar, 2022 SCC OnLine SC 497: AIR 2022 SC 2817, wherein it was observed:-
"[17] It is not disputed that there are minor contradictions with respect to the time of the occurrence or injuries attributed on hand or foot, but the constant narrative of the witnesses is that the appellants were present at the place of occurrence armed with guns and 62 2025:HHC:4599 they caused the injury on informant PW-6. However, the testimony of a witness in a criminal trial cannot be discarded merely because of minor contradictions or omissions, as observed by this court in Narayan Chetanram Chaudhary &Anr. Vs. State of Maharashtra, 2000 8 SCC 457. This Court, while considering the issue of contradictions in the testimony while appreciating the evidence in a criminal trial, held that only contradictions in material particulars and not minor contradictions can be ground to discredit the testimony of the witnesses. The relevant portion of para 42 of the judgment reads as under:
"42. Only such omissions which amount to a contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of the witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false, and the sense of observation differs from person to person. The omissions in the earlier statement, if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW 2. Even if there is a contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness."
56. Therefore, in view of the binding precedents of the Hon'ble Supreme Court, the statements of the witnesses cannot be discarded due to omissions, contradictions or discrepancies. The Court has to see whether the discrepancies affect the 63 2025:HHC:4599 prosecution case adversely or not and whether they are related to the core of the prosecution case or the details.
57. The learned trial court had rightly pointed out that the incident occurred on 10.08.2009, and HC Ranjit Singh (PW-1) made the statement on 13.07.2010 after the expiry of 11 months from the date of the incident. The memories fail, and a person cannot be expected to remember the incident in graphic details and reproduce the same as if he is a video recorder. Minor contradictions in the statement of witnesses show the truthfulness of the witnesses rather than their falsehood. Thus, the learned Trial Court had rightly held that these contradictions were not sufficient to discard the prosecution case.
58. It was submitted that documents mention the F.I.R. number, which shows that F.I.R. was ante-timed. This submission was rightly rejected by the learned Trial Court. The seizure memo does not mention the FIR number. This document was prepared before the registration of the FIR. The FIR number was mentioned in other documents prepared subsequently. Hence, the inference cannot be drawn that the FIR was ante- timed.
64
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59. The statements of police officials are consistent, and there are no major contradictions in the statements. Learned Trial Court had rightly held that the testimonies of official witnesses cannot be discarded because they happen to be official witnesses. It was laid down by the Hon'ble Supreme Court in Kripal Singh v. State of Rajasthan, (2019) 5 SCC 646: (2019) 2 SCC (Cri) 680: 2019 SCC OnLine SC 207 that the testimonies of the police officials cannot be ignored because they are police officials. It was observed at page 656:
"21. The submission of the learned Senior Counsel for the appellant that recovery has not been proved by any independent witness is of no substance for the reason that in the absence of an independent witness to support the recovery in substance cannot be ignored unless proved to the contrary. There is no such legal proposition that the evidence of police officials, unless supported by an independent witness, is unworthy of acceptance or the evidence of police officials can be outrightly disregarded."
60. It was submitted that Reasons of Belief were mentioned after the incident, which is a violation of Section 42 of the NDPS Act. This submission will not help the defence. It was specifically stated by the witnesses that the accused was walking carrying a blue bag. Thus, there was no search inside the building, conveyance or enclosed place mentioned in section 42 of the ND& PS Act. It was laid down by the Hon'ble Supreme 65 2025:HHC:4599 Court in S.K. Raju @ Abdul Haque @ Jagga Vs. State of West Bengal 2018 (9) SCC 708 that Section 42 does not apply to the search made of a person walking in an open space. It was observed: -
12. An empowered officer under Section 42(1) is obligated to reduce to writing the information received by him, only when an offence punishable under the Act has been committed in any building, conveyance or an enclosed place, or when a document or an article is concealed in a building, conveyance or an enclosed place. Compliance with Section 42, including recording of information received by the empowered officer, is not mandatory when an offence punishable under the Act was not committed in a building, conveyance or an enclosed place.
Section 43 is attracted in situations where the seizure and arrest are conducted in a public place, which includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
13. The appellant was walking along Picnic Garden Road. He was intercepted and detained immediately by the raiding party in front of Falguni Club, which was not a building, conveyance or an enclosed place. The place of occurrence was accessible to the public and fell within the ambit of the phrase "public place" in the explanation to Section 43. Section 42 had no application."
61. Thus, there was no requirement of compliance with the provisions of Section 42 of the ND&PS Act, and the prosecution case cannot be doubted due to non-compliance of Section 42 of the ND&PS Act.
62. HC Sanjay Kumar (PW-10) stated that he produced the case property and the accused before SHO Karam Chand 66 2025:HHC:4599 (PW-6). SHO Karam Chand (PW-6) stated that HC Sanjay Kumar (PW-10) produced a blue bag sealed with seal 'J", sample seal and NCB form. He (ASI Karam Chand) resealed the bag with seal 'S'. He obtained the sample seal and handed over the articles to HC Santosh Kumar (PW-7). HC Santosh Kumar (PW-7) stated that ASI Karam Chand deposited a blue bag sealed with seal impressions 'J and S', sample seals, and an NCB-I form. He made the entry and handed them over to HHC Jagdev Chand (PW-8). HHC Jagdev Chand (PW-8) stated that HC Santosh Kumar (PW-7) handed over a bag sealed with seal impressions 'J and S', sample seals, NCB-I form, copy of F.I.R. and docket to him with a direction to carry them to SFSL Junga. He deposited all the articles at SFSL, Junga. The report of analysis Ext.PX shows that the sealed gunny bag bearing one seal of 'J' and resealed with one seal of 'S' was analysed. The seal were intact and tallied with the seal impression sent by SHO on the NCB-I form. Therefore, it is apparent that the seals remain intact till the analysis of the case property.
63. It was held in Baljit Sharma vs. State of H.P 2007 HLJ 707, where the report of analysis shows that the seals were 67 2025:HHC:4599 intact, the case of the prosecution that the case property remained intact is to be accepted as correct. It was observed:
"A perusal of the report of the expert Ex.PW8/A shows that the samples were received by the expert in a safe manner, and the sample seal separately sent tallied with the specimen impression of a seal taken separately. Thus, there was no tampering with the seal, and the seal impressions were separately taken and sent to the expert also."
64. Similar is the judgment in Hardeep Singh vs State of Punjab 2008(8) SCC 557, wherein it was held:
"It has also come on evidence that till the date the parcels of the sample were received by the Chemical Examiner, the seal put on the said parcels was intact. That itself proves and establishes that there was no tampering with the previously mentioned seal in the sample at any stage, and the sample received by the analyst for chemical examination contained the same opium, which was recovered from the possession of the appellant. In that view of the matter, a delay of about 40 days in sending the samples did not and could not have caused any prejudice to the appellant."
65. In State of Punjab vs Lakhwinder Singh 2010 (4) SCC 402, the High Court had concluded that there could have been tampering with the case property since there was a delay of seven days in sending the report to FSL. It was laid down by the Hon'ble Supreme Court that the case property was produced in the Court, and there was no evidence of tampering. Seals were 68 2025:HHC:4599 found to be intact, which would rule out the possibility of tampering. It was observed:
"The prosecution has been able to establish and prove that the aforesaid bags, which were 35 in number, contained poppy husk, and accordingly, the same were seized after taking samples therefrom which were properly sealed. The defence has not been able to prove that the aforesaid seizure and seal put in the samples were in any manner tampered with before it was examined by the Chemical Examiner. There was merely a delay of about seven days in sending the samples to the Forensic Examiner, and it is not proved as to how the aforesaid delay of seven days has affected the said examination when it could not be proved that the seal of the sample was in any manner tampered with. The seal having been found intact at the time of the examination by the Chemical Examiner and the said fact having been recorded in his report, a mere observation by the High Court that the case property might have been tampered with, in our opinion, is based on surmises and conjectures and cannot take the place of proof.
17. We may at this stage refer to a decision of this Court in Hardip Singh v. State of Punjab reported in (2008) 8 SCC 557 in which there was a delay of about 40 days in sending the sample to the laboratory after the same was seized. In the said decision, it was held that in view of cogent and reliable evidence that the opium was seized and sealed and that the samples were intact till they were handed over to the Chemical Examiner, the delay itself was held to be not fatal to the prosecution case. In our considered opinion, the ratio of the aforesaid decision squarely applies to the facts of the present case in this regard.
18. The case property was produced in the Court, and there is no evidence to show that the same was ever tampered with."69
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66. Similar is the judgment of the Hon'ble Supreme Court in Surinder Kumar vs State of Punjab (2020) 2 SCC 563, wherein it was held:-
"10. According to learned senior counsel for the appellant, Joginder Singh, ASI, to whom Yogi Raj, SHO (PW-3) handed over the case property for producing the same before the Illaqa Magistrate and who returned the same to him after such production was not examined, as such, link evidence, was incomplete. In this regard, it is to be noticed that Yogi Raj SHO handed over the case property to Joginder Singh, ASI, for production before the Court. After producing the case property before the Court, he returned the case property to Yogi Raj, SHO (PW-3), with the seals intact. It is also to be noticed that Joginder Singh, ASI, was not in possession of the seals of either the investigating officer or Yogi Raj, SHO. He produced the case property before the Court on 13.09.1996 vide application Ex.P-13. The concerned Judicial Magistrate of First Class, after verifying the seals on the case property, passed the order Ex.P-14 to the effect that since there was no judicial malkhana at Abohar, the case property was ordered to be kept in safe custody, in Police Station Khuian Sarwar till further orders. Since Joginder Singh, ASI, was not in possession of the seals of either the SHO or the Investigating Officer, the question of tampering with the case property by him did not arise at all.
11. Further, he has returned the case property, after production of the same, before the Illaqa Magistrate, with the seals intact, to Yogi Raj, SHO. In that view of the matter, the Trial Court and the High Court have rightly held that the non-examination of Joginder Singh did not, in any way, affect the case of the prosecution. Further, it is evident from the report of the Chemical Examiner, Ex.P-10, that the sample was received with seals intact and that the seals on the sample tallied with the sample seals. In that view 70 2025:HHC:4599 of the matter, the chain of evidence was complete."
(Emphasis supplied)
67. Therefore, the prosecution version is to be accepted as correct that the case property remained intact till its analysis at SFSL, Junga.
68. The result of the analysis shows that the substance analysed was poppy straw, therefore, it was duly proved on record that accused was found in possession of 11.5 kg of opium Poppy straw.
69. It was submitted that there is a violation of Section 55 of the NDPS Act. This submission is not acceptable. HC Sanjay Kumar (PW-10) stated that he sent the Special Report to the Superintendent of Police Una through HC Ranjit Singh (PW-1). HC Ranjit Singh (PW-1) stated that HC Sanjay Kumar (PW-10) handed over the Special report to him on 12.08.2009, and he handed it over to the office of S.P. Una against the receipt (Ext.PC). He identified the Special Report.
70. ASI Surjit Singh (PW-5) stated that a Special report relating to this case was received in the office of S.P. Una through HC Ranjit Singh (PW-1). The S.P., Una, went through the Special Report and handed it over to ASI Surjit Singh (PW-5). 71
2025:HHC:4599 He identified the report (Ext.PC). These statements are duly corroborated by the endorsement made on the Special Report. The recovery was effected on 10.08.2009, and the report was sent on 12.08.2009 within 72 hours, and there is sufficient compliance with Section 55 of the NDPS Act.
71. Therefore, the learned Trial Court had rightly convicted the accused for the commission of an offence punishable under Section 15 of the NDPS Act.
72. It was submitted that the learned Trial Court had imposed an excessive sentence. This is not acceptable. The Central Government has prescribed 1 kg as a small quantity and 50 kg as a commercial quantity in the case of poppy straw. The accused was found in possession of 11 times the small quantity. 11.5 kg Opium Poppy straw could not have been meant for personal consumption. The offences involving narcotics affect not only the person but the society at large. It was held in Union of India v. Mahaboob Alam, (2004) 4 SCC 105: 2004 SCC (Cri) 912:
2004 SCC OnLine SC 280, that a murderer commits the murder of one or two persons while a person dealing in Narcotic Drugs 72 2025:HHC:4599 inflicts death blow to many innocent young victims. It was observed:
"8. In the case of Dadu v. State of Maharashtra [(2000) 8 SCC 437: 2000 SCC (Cri) 1528] this Court held that though a part of Section 32-A insofar as it ousts the jurisdiction of the court to suspend the sentence awarded to the convict under the Act is unconstitutional, still held that the whole of the section would not be invalid and the restriction imposed by the offending section was distinct and severable. It further held that the legislative mandate under that section has to be followed by the courts while granting bail to the offenders under the Act. It also held [ at SCC p. 456, para 28 quoting from Union of India v. Ram Samujh, (1999) 9 SCC 429, pp. 431-32, para 7] that the court should bear in mind "that in a murder case, the accused commits the murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. The reason may be large stake and illegal profit involved".
In the said judgment this Court also relied on the following passage with approval in the case of Durand Didier v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95: 1990 SCC (Cri) 65] in the following words: (SCC p. 104, para 24) "24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects 73 2025:HHC:4599 and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing Act 81 of 1985 specifying mandatory minimum imprisonment and fine."
73. Therefore, a deterrent sentence has to be imposed to prevent like-minded persons from indulging in the commission of the offence punishable under Section 15 of the NDPS Act. Keeping in view this consideration, the sentence of 2 years is not at all excessive, rather it is lenient and there is no reason to interfere with the sentence imposed by the learned Trial Court.
74. No other point was urged.
75. In view of the above, the present appeal fails, and the same is dismissed.
76. A copy of this judgment along with the record of the learned Trial Court be sent back forthwith. Pending applications, if any, also stand disposed of.
(Rakesh Kainthla) Judge 04th March, 2025 (ravinder)