Himachal Pradesh High Court
Reserved On: 11.11.2024 vs State Of H.P on 20 November, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
2024:HHC:11846
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 345 of 2021
Reserved on: 11.11.2024
Date of Decision: 20.11.2024
Anil Kumar @ Nillu ..Appellant.
Versus
State of H.P. ...Respondent
Coram
Hon'ble Mr Justice Vivek Singh Thakur, Judge.
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Appellant : Mr. Ram Murti Bisht, Advocate.
For the Respondent : Mr. Varun Chandel, Additional
Advocate General.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
dated 01.01.2021 passed by learned Additional Sessions Judge,
Nahan (learned Trial Court) vide which the appellant (accused
before the learned Trial Court) was convicted of the commission of
offences punishable under Sections 307, 326 and 354 of IPC and
order dated 2.01.2021 vide which he was sentenced as under:-
Under Section 307 of IPC To suffer imprisonment for life,
pay a fine of ₹20,000/- and in
default of payment of fine to
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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undergo further rigorous
imprisonment for one year.
Under Section 354 of IPC To suffer rigorous imprisonment
for two years, pay a fine of
₹5,000/- (five thousand) and in
default of payment of fine to suffer
further simple imprisonment for
three months.
Both the sentences were ordered to
run concurrently.
(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 filed a challan against the accused for
the commission of offences punishable under Sections 323, 324,
326, 354 and 307 of IPC. It was asserted that the victim (name
being withheld to protect her identity) had gone to the jungle on
06.09.2015. She was found in an injured condition by Ram Lal
(PW3). He informed the son of the victim (PW1). She was brought
to the hospital. Intimation was given to the police and entry
(Ext. PW9/A) was recorded in the police station HC-Vidya Nand
(PW9) and HHC Pratap Singh went to Civil Hospital Sarahan for
the verification of the information. Vidya Nand (PW9) recorded
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the statement of the informant (Ext. PW1/A) and sent it to the
Police Station where FIR (Ext. PW10/A) was registered. Dr Deepika
(PW6) conducted the victim's medical examination and found
multiple injuries on her person. She referred the victim to a higher
centre for further evaluation and management. She reserved her
final opinion. She issued the MLC (Ext. PW6/A). HC Vidya Nand
(PW9) visited the spot and recorded the statements of the
witnesses as per their version. He took the photographs (Ext.
PW9/B and Ext. PW9/C). He prepared the spot map (Ext. PW9/D).
He picked up the chopped thumb and index finger of the victim
which were put in a match box. These were sealed in a parcel with
three seal impressions of seal 'V'. These were seized vide memo
(Ext. PW8/A). He also seized an ear ring, nose pin, lighter and a
stick from the spot which were put in a matchbox and were sealed
in a parcel with seal 'V'. These were seized vide memo (Ext.
PW8/B). HC Vidya Nand (PW9) picked blood-stained mud and
leaves from the spot which were wrapped in a newspaper and
these were sealed in a parcel with seal impression 'V'. The seal was
handed over to witness Anil Kumar after the use. Memo (Ext.
PW8/C) was prepared. The victim handed over her shirt, salwar,
dupatta and pullover which were seized vide memo (Ext. PW1/B).
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The case property was deposited with MHC-Om Prakash (PW10)
who made an entry in the malkhana register and deposited the
case property in the malkhana. Further investigation was
conducted by ASI-Sohan Lal (PW12). He brought three persons to
the police station and the victim identified the accused. A memo
(Ext. PW5/A) was prepared. The accused disclosed that he had
concealed the clothes in his residence and he could get them
recovered. Disclosure statement (Ext. PW2/A) was reduced into
writing. The accused was taken to the victim's house where the
victim handed over a darat. ASI Sohan Lal (PW12) prepared a
sketch of Darat (Ext. PW5/C) and sealed it in a cloth parcel with
three impressions of seal 'A'. Darat was seized vide memo (Ext.
PW5/B). The accused led the police to Shamlati village, where he
got a shirt and trouser recovered. The police sealed the shirt and
the trouser in a cloth parcel with three impressions of seal 'A'.
These were seized vide memo (Ext. PW5/D). The site plan
(Ext. PW12/A) was prepared. The blood sample of the victim was
taken on an FTA Card. The statement of the victim (Ext. PW5/E)
was recorded by the learned Judicial Magistrate, First Class,
Rajgarh. The case property was deposited with Om Prakash. He
sent the case property to FSL for analysis. The results of the
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analysis (Ext. PW13/A and Ext. PW14/A) were issued stating that
human blood was detected on the thumb and the fingertip but the
result was inconclusive regarding the blood group. Human blood
group 'B' was detected on the blood-stained leaves lifted from the
spot, shirt, salwar, dupatta and sweater of the victim. Blood was
detected on darat, which was insufficient for serological
examination. Blood was not detected on the cut scalp hair of the
accused. The hair found on the thumb, fingertip and blood-
stained leaves were identified as human head hair but they could
not be compared with the scalp hair of the accused due to
insufficient quantity. A mixed DNA profile was obtained from
darat but nothing specific could be inferred from it. A DNA profile
was obtained from the finger, which matched with the DNA profile
obtained from the victim. Dr Deepika (PW6) issued her final
opinion that the injuries were dangerous to life and could have
been caused by a weapon like Darat (Ext. P5). 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 Judicial Magistrate, First Class,
Rajgarh who committed it to learned Sessions Judge, Nahan for
trial.
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3. Learned Sessions Judge, Nahan assigned the case to
learned Additional Sessions Judge, Nahan (learned Trial Court).
4. Learned Trial Court charged the accused with the
commission of offences punishable under Sections 354, 326 and
307 of IPC to which the accused pleaded not guilty and claimed to
be tried.
5. The prosecution examined 15 witnesses to prove its
case. PW5 is the victim and PW1 is her son. Constable Nitin Kumar
(PW2) is the witness to the disclosure statement. Ram Lal (PW3)
was told by his wife Prabha (PW4) that the victim was lying in an
injured condition. He informed the victim's son telephonically
about it. Prabha (PW4) saw the victim lying in an injured
condition. She also took darat from her and kept it in the house of
the victim. Dr Deepika (PW6) conducted the medical examination
of the victim. Raman Singh (PW7) had engaged the victim and her
son as labourers. He also witnessed the various recoveries. Anil
Sharma (PW8) is the witness to the recovery of the index finger
and thumb of the victim. HC Vidya Nand (PW9) conducted the
initial investigation. MHC Om Prakash (PW10) was working as
MHC with whom the case property was deposited. Constable
Rizwan Ali (PW11) brought the case property from FSL to Police
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Station Pachhad. ASI Sohan Lal (PW12) conducted the
investigation. Ram Chand (PW13) prepared the challan. SI Ashok
Negi (PW14) prepared the supplementary challan. Dr. Supriya
(PW15) treated the victim in Zonal Hospital, Solan.
6. The accused in his statement recorded under Section
313 of Cr.P.C. denied the prosecution case in its entirety. He stated
that he was innocent. No defence was sought to be adduced by
him.
7. Learned Trial Court held that the victim's testimony
was corroborated by the medical evidence. The fact that the test
identification parade was not conducted in the presence of the
Magistrate is not sufficient to discard the prosecution case. The
purpose of the test identification parade is to test the observation
and memory of the witness. In the present case, the victim had
sufficient time to see the accused. She had also described the
accused to the police. Therefore, her power of observation could
not be doubted. The accused had acted indecently with the victim
and when she resisted, the accused inflicted darat blows to her.
The defence version that the victim could have fallen and
sustained injuries was not probabilized. There was nothing to
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doubt in the prosecution case; hence, the accused was convicted
and sentenced as aforesaid.
8. Being aggrieved from the judgment and order passed
by the learned Trial Court, the accused has filed the present appeal
asserting that the learned Trial Court failed to properly appreciate
the evidence led before it. The judgment is based upon assumption
and presumption and is not sustainable. The prosecution is
required to prove its case beyond a reasonable doubt. There were
various infirmities in the prosecution case. The test identification
parade was necessary and in the absence of the same, the identity
of the accused was not established. Therefore, it was prayed that
the present appeal be allowed and the judgment and order passed
by the learned Trial Court be set aside.
9. We have heard Mr Ram Murti Bisht, learned counsel for
the appellant and Mr Varun Chandel, learned Additional Advocate
General, for the respondent/State.
10. Mr. Ram Murti Bisht, learned counsel for the
appellant/accused submitted that the learned Trial Court erred in
convicting and sentencing the accused. There is a major
discrepancy between the victim's statement recorded by the
learned Magistrate and the learned Trial Court. This discrepancy is
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sufficient to discredit her. Learned Trial Court failed to notice the
same. The test identification parade was conducted before the
police and it is inadmissible. The police should have got the test
identification parade conducted in the presence of a Magistrate. In
the absence of a test identification parade, the identity of the
accused is not established. In the alternative, he submitted that
the learned Trial Court had imposed a maximum sentence of life
simply on the premise that the accused was involved in another
offence, which is not a relevant consideration; therefore, he
prayed that the present appeal be allowed and the judgment and
order passed by the learned Trial Court be set aside or the sentence
imposed by the learned Trial Court be reduced.
11. Mr. Varun Chandel, learned Additional Advocate
General for the respondent/State supported the judgment and
order passed by the learned Trial Court. He submitted that the
testimony of the victim is duly corroborated by the medical
evidence and the other circumstances proved on record. The
accused was involved in the commission of another offence and
this fact was rightly considered by the learned Trial Court while
imposing the sentence. Therefore, he prayed that the present
appeal be dismissed.
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12. We have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
13. The victim (PW5) stated that she had gone to the forest
to graze the goats on 06.09.2015. Her son had gone to graze the
cows on the other side of the forest. She was trimming a tree when
the accused came under the tree at 2:00-2:30 pm. The accused was
wearing a red shirt. The accused demanded beedi from her. She
threw a bundle of beedi and a lighter from the tree. When she was
getting down from the tree, the accused put his hands under her
feet. She objected and the accused removed his hands. The accused
enquired about the path leading to village Runja and she replied
that the path was far away from the spot. The accused told her that
he had visited the spot after hearing the voice of a girl. He
demanded darat from her. When she refused to deliver the darat,
the accused snatched the darat from her. The accused felt her
breasts and sat on her chest. He gave her many blows with darat
on her throat, nose and forehead. He chopped her thumb and
index finger of her right hand. She became unconscious and
regained consciousness after some time. She picked up her darat
and bag and reached the house of Prabha. She told Prabha (PW4)
that the accused had inflicted severe injuries with darat. She
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became unconscious. She regained consciousness in Solan
Hospital where she remained admitted for 8-9 days. She handed
over her clothes to the police. She identified the accused among
three persons at the police station. She also handed over the darat
to the police, which was seized by the police.
14. She stated in her cross-examination that she was
working in the house of Raman and he was paying ₹ 10,000/- per
month to her. The distance between the house of Prabha and the
forest where she was trimming a tree was about 8 kilometres. She
proceeded from her house at 10:00 am. She admitted that the place
where she was trimming the tree was adjacent to a path. She had
thrown a lighter to the accused to ignite the beedi. She had
mentioned to the Judicial Magistrate, Rajgarh that the accused put
his hand under her feet when she was coming down from the tree.
She was confronted with her statement where this fact was not
recorded. She had also told the Judicial Magistrate that the accused
snatched darat from her hand. Later on, she came to know that she
was taken to the hospital by Raman. She had mentioned to the
Judicial Magistrate that the accused inflicted blows with darat on
her nose and chopped her thumb and index finger. She had also
told the police and the Judicial Magistrate that she had brought a
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bag and darat from the spot. She was confronted with the previous
statement where these facts were not recorded. She reached the
police station at about 10:00 am with her son. She could not tell
the names of two other boys, who were mixed with the accused.
She denied that she was not properly working in the house of
Raman and that Raman wanted to engage the accused as a
labourer. She denied that she fell from the tree and sustained
injuries by a fall.
15. Her statement is duly corroborated by Prabha (PW4).
She stated that she saw the victim coming out of the forest. She
went to the victim and enquired whether she was attacked by a
leopard. The victim replied that she was attacked by a person. She
informed her husband and Raman. Raman and the victim's son
came to the spot. The victim was holding a darat in her hand and a
bag was hanging on her neck. She was unable to speak. She was
taken to the hospital. She (Prabha) kept darat in the victim's
house. She stated in her cross-examination that the forest is
scattered in about 1 kilometer area and she had seen the victim at a
distance of 50 meters. She had not told the police that the victim
was holding a darat and bag with her. She denied that she was
making a false statement.
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16. Dr. Deepika (PW6) conducted the medical examination
of the victim. She found ten injuries on her person, which could
have been caused by a darat. She denied in her cross-examination
that a person could sustain injuries by way of a fall. Thus, the
victim's version that she had sustained injuries by darat is duly
proved on record. It was laid down by the Hon'ble Supreme Court
in Bhajan Singh @ Harbhajan Singh & Ors. Versus State of Haryana
(2011) 7 SCC 421, that the evidence of the stamped witness must be
given due weightage, as his presence on the spot cannot be
doubted. It was observed: -
"36. The evidence of the stamped witness must be given due
weightage as his presence at the place of occurrence cannot
be doubted. His statement is generally considered to be very
reliable and it is unlikely that he has spared the actual
assailant 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
at the time of occurrence. Thus, the testimony of an injured
witness is accorded a special status in law. Such a witness
comes with a built-in guarantee of his presence at the scene
of the crime and is unlikely to spare his actual assailant(s) in
order to falsely implicate someone. "Convincing evidence is
required to discredit an injured witness". Thus, the evidence
of an injured witness should be relied upon unless there are
grounds for the rejection of his evidence on the basis of
major contradictions and discrepancies therein. (Vide: Abdul
Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259; Kailas &
Ors. v. State of Maharashtra, (2011) 1 SCC 793; Durbal v. State of
Uttar Pradesh, (2011) 2 SCC 676; and State of U.P. v. Naresh &
Ors., (2011) 4 SCC 324).
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17. It was held by the Hon'ble Supreme Court in Neeraj
Sharma v. State of Chhattisgarh, (2024) 3 SCC 125: 2024 SCC OnLine
SC 13 that the testimony of the injured witness has to be accepted
as correct unless there are compelling circumstances to doubt
such statement. It was observed:
"22. The importance of an injured witness in a criminal
trial cannot be overstated. Unless there are compelling
circumstances or evidence placed by the defence to doubt
such a witness, this has to be accepted as extremely
valuable evidence in a criminal trial.
23. In Balu Sudam Khalde v. State of Maharashtra [Balu
Sudam Khalde v. State of Maharashtra, (2023) 13 SCC 365:
2023 SCC OnLine SC 355] this Court summed up the
principles which are to be kept in mind when appreciating
the evidence of an injured eyewitness. This Court held as
follows: (SCC para 26)
"26. When the evidence of an injured eyewitness is to
be appreciated, the under-noted legal principles
enunciated by the Courts are required to be kept in
mind:
26.1. The presence of an injured eyewitness at the
time and place of the occurrence cannot be
doubted unless there are material contradictions
in his deposition.
26.2. Unless it is otherwise established by the
evidence, it must be believed that an injured
witness would not allow the real culprits to escape
and falsely implicate the accused.
26.3. The evidence of the injured witness has greater
evidentiary value and unless compelling reasons exist,
their statements are not to be discarded lightly.
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26.4. The evidence of the injured witness cannot be
doubted on account of some embellishment in
natural conduct or minor contradictions.
26.5. If there be any exaggeration or immaterial
embellishments in the evidence of an injured
witness, then such contradiction, exaggeration or
embellishment should be discarded from the
evidence of the injured, but not the whole
evidence.
26.6. The broad substratum of the prosecution
version must be taken into consideration and
discrepancies which normally creep due to loss of
memory with the passage of time should be
discarded." (emphasis supplied)
18. It was laid down by the Hon'ble Supreme Court in State
of U.P Versus Smt. Noorie Alias Noor Jahan and Others, (1996) 9 SCC
104, that while assessing the evidence of an eye witness, the Court
must adhere to two principles namely whether in the
circumstances of the case, the eye witness could be present and
whether there is anything inherently improbable or unreliable. It
was observed:-
"7. The High Court having acquitted the accused persons on
appreciation of the evidence, we have ourselves scrutinised
the evidence of PWs. 1, 2 and 3. The conclusion is irresistible
that their evidence on material particulars has been brushed
aside by the High Court by entering into the realm of
conjecture and fanciful speculation without even discussing
the evidence more particularly the evidence relating to the
basic prosecution case. While assessing and evaluating the
evidence of eyewitnesses the Court must adhere to two
principles, namely whether in the circumstances of the case, it
was possible for the eyewitness to be present at the scene and
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whether there is anything inherently improbable or unreliable.
The High Court in our opinion has failed to observe the
aforesaid principles and in fact, had misappreciated the
evidence which has caused a gross miscarriage of justice.
The credibility of a witness has to be decided by referring to
his evidence and finding out how he has fared in cross-
examination and what impression is created by his evidence
taken insofar as the context of the case and not by entering
into the realm of conjecture and speculation. On
scrutinising the evidence of PWs. 1, 2 and 3 we find they are
consistent with one another so far as the place of
occurrence, the manner of assault, the weapon of assault
used by the accused persons, the fact of dragging of the
dead body of the deceased from the place to the grove and
nothing has been brought out in their cross-examination to
impeach their testimony. The aforesaid oral evidence fully
corroborates the medical evidence. In that view of the
matter, we unhesitatingly come to the conclusion that the
prosecution has been able to establish the charge against
the accused persons and the High Court committed an error
in acquitting the three respondents namely Inder Dutt,
Raghu Raj and Bikram." (emphasis supplied)
19. In the present case, the presence of the victim is duly
established by her injuries. It was laid down by the Hon'ble
Supreme Court in State of Punjab vs. Hari Singh 1974 (3) SCR 725
that a person speaking on oath should be presumed to be a truthful
witness unless there is something inherently improbable in his
testimony. It was observed:
"The ordinary presumption is that a witness speaking
under an oath is truthful unless and until he is shown to be
untruthful or unreliable in any particular respect. The High
Court, reversing this approach, seems to us to have
assumed that witnesses are untruthful unless it is proved
that they are telling the truth. Witnesses, solemnly
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deposing on oath in the witness box during a trial upon a
grave charge of murder, must be presumed to act with a full
sense of responsibility for the consequences of what they
state. It may be that what they say is so very unlikely or
unnatural or unreasonable that it is safer not to act upon it
or even to disbelieve them."
20. It was suggested to the victim that she was not working
properly and her employer Raman wanted to employ the accused.
Significantly, Raman (PW7) specifically denied this fact. He was
the best person to say whether he wanted to engage the accused as
a labourer or not and about the working of the victim. Once he had
specifically denied that the victim was not working properly and
he wanted to engage the accused, the defence version that the
victim had made a false case due to enmity with the accused has
not been proved on record.
21. It was submitted that there are major improvements in
the statement of the victim vis à vis her statement recorded by the
learned Judicial Magistrate (Ext. PW5/E). This cannot be accepted.
The omissions, which were put to the victim are merely a matter
of details and do not affect the core of the prosecution case. The
police had recovered the chopped thumb and index finger from the
spot. The Medical Officer had also found a chopped distal phalanx
of the right index finger and right thumb. These facts duly proved
that the index finger and thumb of the victim were chopped and
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the mere omission to state this fact to the Magistrate will not
make the victim's testimony suspect. The victim's statement that
she had brought darat with her is duly corroborated by Prabha
(PW4) against whom nothing was alleged; therefore, this fact was
also proved by other evidence on record. Even if the victim had not
mentioned this fact to the police, it cannot be said that this was an
incorrect fact and the testimony of the victim is to be discarded
due to the omission to state the fact. Further, the fact that the
accused had put his hand beneath the victim's foot is a matter of
detail and the omission of the same is not sufficient to discard the
same.
22. 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
minor omissions in the statement is not sufficient to discard the
prosecution's case. 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
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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."
23. It was held in Esher Singh v. State of A.P., (2004) 11 SCC
585: 2004 SCC OnLine SC 320 that mere elaboration is not sufficient
to discard the prosecution's case. 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..."
24. 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:
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"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 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."
25. Similar is the judgment in Kalabhai Hamirbhai Kachhot
v. State of Gujarat, (2021) 19 SCC 555: 2021 SCC OnLine SC
347wherein 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
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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 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
22
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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 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
23
2024:HHC:11846
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 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
24
2024:HHC:11846
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."
26. It was laid down by the Hon'ble Supreme Court in
Achhar Singh v. State of H.P., (2021) 5 SCC 543: 2021 SCC OnLine SC
368 that the testimony of a witness cannot be discarded due to
exaggeration alone. It was observed at page 555:
"25. 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 really is". Merriam-Webster defines the term
"exaggerate" as to "enlarge beyond bounds or the truth".
The Concise Oxford English Dictionary defines it as "enlarged
or altered beyond normal proportions". These expressions
unambiguously suggest that the genesis of an "exaggerated
statement" lies in a true fact, to which fictitious additions
are made so as 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, Advanced Law Lexicon defines
"false" as "erroneous, untrue; opposite of correct, or
true". Concise Oxford English Dictionary states that "false" is
"wrong; not correct or true". Similar is the explanation in
other dictionaries as well. There is, thus, a marked
differentia 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
25
2024:HHC:11846
is duty-bound to disseminate "truth" from "falsehood"
and sift the grain from the chaff 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, para 18:
2003 SCC (Cri) 1697]
26. The learned State counsel has rightly relied
on Gangadhar Behera [Gangadhar Behera v. State of Orissa,
(2002) 8 SCC 381: 2003 SCC (Cri) 32] 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 [Hari Chand v. State of Delhi, (1996) 9
SCC 112: 1996 SCC (Cri) 950] held that : (Hari Chand case [Hari
Chand v. State of Delhi, (1996) 9 SCC 112: 1996 SCC (Cri) 950],
SCC pp. 124-25, para 24)
"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 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." (emphasis
supplied)
27. There is no gainsaid that homicidal deaths cannot be left
to judicium dei. The court in its 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. It was laid down by the Hon'ble Supreme Court in
26
2024:HHC:11846
Arvind Kumar v. State of Rajasthan, (2022) 16 SCC 732: 2021 SCC
OnLine SC 1099, that the testimony of a witness cannot be
discarded because he had made a wrong statement regarding some
aspect. The principle that when a witness deposes falsehood his
entire statement is to be discarded does not apply to India. It was
observed at page 754: -
"Falsus in uno, falsus in omnibus
50. The principle that when a witness deposes falsehood,
the evidence in its entirety has to be eschewed may not have
strict application to the criminal jurisprudence in our
country. The principle governing sifting the chaff from the
grain has to be applied. However, when the evidence is
inseparable and such an attempt would either be impossible
or would make the evidence unacceptable, the natural
consequence would be one of avoidance. The said principle
has not assumed the status of law but continues only as a
rule of caution. One has to see the nature of the discrepancy
in a given case. When the discrepancies are very material
shaking the very credibility of the witness leading to a
conclusion in the mind of the court that it is neither
possible to separate it nor to rely upon, it is for the said
court to either accept or reject.
51. The said principle of law has been dealt with by this
Court in Anand Ramachandra Chougule v. Sidarai Laxman
Chougala [Anand Ramachandra Chougule v. Sidarai Laxman
Chougala, (2019) 8 SCC 50 : (2019) 3 SCC (Cri) 309], which
states thus : (SCC pp. 53-54, paras 9-13)
"9. We have considered the respective submissions
and perused the materials on record. The relationship
between parties and the existence of a land dispute
regarding which a civil suit was also pending are
undisputed facts. The fact that a verbal duel followed by
a scuffle took place between the parties culminating in
27
2024:HHC:11846
injuries is a concurrent finding of fact by two courts. The
fact that the accused also lodged an FIR with regard to
the same occurrence stands established by the evidence
of PWs 19 and 22, the investigating officers, who have
admitted that the respondent-accused had also lodged
BRPS Cr. No. 79/02 -- marked Ext. D-10, which was not
investigated by them. Similarly, PW 11, the police
constable, deposed that two of the accused were
admitted to District Hospital, Belgaum and that he was
posted on watch duty. The occurrence is of 7-6-2002
and respondents Accused 1 and 2 were discharged on 11-
6-2002. Their injury report has not been brought on
record by the prosecution and no explanation has been
furnished in that regard.
10. The burden lies on the prosecution to prove the
allegations beyond all reasonable doubt. In
contradistinction to the same, the accused has only to
create a doubt about the prosecution case and the
probability of its defence. An accused is not required to
establish or prove his defence beyond all reasonable
doubt, unlike the prosecution. If the accused takes a
defence, which is not improbable and appears likely,
there is material in support of such defence, the accused
is not required to prove anything further. The benefit of
the doubt must follow unless the prosecution is able to
prove its case beyond all reasonable doubt.
11. The fact that a defence may not have been taken by
an accused under Section 313CrPC again cannot absolve
the prosecution from proving its case beyond all
reasonable doubt. If there are materials which the
prosecution is unable to answer, the weakness in the
defence taken cannot become the strength of the
prosecution to claim that in the circumstances it was not
required to prove anything. In Sunil Kundu v. State of
Jharkhand [Sunil Kundu v. State of Jharkhand, (2013) 4 SCC
422 : (2013) 2 SCC (Cri) 427], this Court observed : (SCC
pp. 433-34, para 28)
'28. ... When the prosecution is not able to prove its
case beyond reasonable doubt it cannot take
28
2024:HHC:11846
advantage of the fact that the accused have not been
able to probabilise their defence. It is well settled that
the prosecution must stand or fall on its own feet. It
cannot draw support from the weakness of the case of
the accused if it has not proved its case beyond
reasonable doubt.'
12. The fact that an FIR was lodged by the accused
with regard to the same occurrence, the failure of the
police to explain why it was not investigated, coupled
with the admitted fact that the accused were also
admitted in the hospital for treatment with regard to
injuries sustained in the same occurrence, but the injury
report was not brought on record and suppressed by the
prosecution, creates sufficient doubts which the
prosecution has been unable to answer.
13. We find it difficult to concur with the submission
on behalf of the appellants that the failure of the
prosecution to investigate the FIR lodged by the accused
with regard to the same occurrence or to place their
injury reports on record was merely a defective
investigation. We are of the considered opinion that the
failure of the prosecution to act fairly and place all
relevant materials with regard to the occurrence before
the court enabling it to take a just and fair decision has
caused serious prejudice to them. A fair criminal trial
encompasses a fair investigation at the pre-trial stage, a
fair trial where the prosecution does not conceal
anything from the court and discharges its obligations in
accordance with law impartially to facilitate a just and
proper decision by the court in the larger interest of
justice concluding with fairness in sentencing also."
28. In the present case the improvements brought out in
the cross-examination are minor. They are elucidations of the
facts already stated by the victim to the learned Judicial Magistrate
and will not fall within the definition of an improvement.
29
2024:HHC:11846
Therefore, the testimony of the victim cannot be discarded
because she was confronted with her previous statement recorded
by the police/Magistrate.
29. The victim stated in her statement (Ext. PW5/A) that
the accused demanded darat from her and thereafter, he threw
darat away. When she went to pick up Darat, the accused molested
her and did not allow her to pick up Darat. When she tried to save
her, the accused inflicted a blow by something and she became
unconscious. It was submitted that this is contrary to the
statement made in the Court and this would make the testimony of
the victim highly suspect. This submission cannot be accepted.
Section 145 of the Indian Evidence Act provides that the attention
of the witness should be drawn to the previous statement with
which, he is sought to be contradicted. The previous statement is
also required to be proved as per the law. It was laid down by the
Hon'ble Supreme Court in Binay Kumar Singh Versus State of Bihar,
1997 (1) SCC 283, that if it is intended to contradict a witness, his
attention must be drawn towards the previous statement. It was
observed: -
"11. The credit of a witness can be impeached by proof of any
statement which is inconsistent with any part of his
evidence in Court. This principle is delineated in S. 155 (3) of
the Evidence Act and it must be borne in mind when reading
30
2024:HHC:11846
S. 145 which consists of two limbs. It is provided in the first
limb of S.145 that a witness may be cross-examined as to
the previous statement made by him without such writing
being shown to him but the second limb provides that "if it
is intended to contradict him by the writing his attention
must before the writing can be provided, be called to those
parts of it which are to be used for the purpose of
contradicting him." There is thus a distinction between the
two vivid limbs, though subtle it may be. The first limb does
not envisage impeaching the credit of a witness, but it
merely enables the opposite party to cross-examine the
witness with reference to the previous statements made by
him. He may at that stage succeed in eliciting materials to
his benefit through such cross-examination even without
resorting to the procedure laid down in the second limb. But
if the witness disowns having made any statement which is
inconsistent with his present stand his testimony in Court
on that score would not be vitiated until the cross-examiner
proceeds to comply with the procedure prescribed in the
second limb of S. 145.
12. In Bhagwan Singh's case (AIR 1952 SC 214), Vivian Bose, J.
pointed out in paragraph 25 that during the cross- examination of the witnesses concerned the formalities prescribed by S. 145 are complied with. The cross- examination, in that case, indicated that every circumstance intended to be used as a contradiction was put to him point by point and passage by passage. Learned Judges were called upon to deal with an argument that witnesses' attention should have been specifically drawn to that passage in addition thereto. Their Lordships were, however, satisfied in that case that the procedure adopted was in substantial compliance with S. 145, and hence held that all that is required is that the witness must be treated fairly and must be afforded a reasonable opportunity of explaining the contradictions after his attention has been drawn to them in a fair and reasonable manner. On the facts of that case, there is no dispute with the proposition laid therein.
13. So long as the attention of PW 32 (Sukhdev Bhagat) was not drawn to the statement attributed to him as recorded by 31 2024:HHC:11846 DW-10 (Nawal Kishore Prasad) we are not persuaded to reject the evidence of PW-32 that he gave Ex. 14 statement at the venue of occurrence and that he had not given any other statement earlier thereto."
30. 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 matters in question, without such writing being shown to him, 32 2024:HHC:11846 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 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 33 2024:HHC:11846 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 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 34 2024:HHC:11846 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 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 35 2024:HHC:11846 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 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 36 2024:HHC:11846 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' prior statements based on which they were sought to be contradicted in the cross-examination."
31. It was held in Anees v. State (NCT of Delhi), 2024 SCC OnLine SC 757 that the Courts cannot suo motu take cognizance of 37 2024:HHC:11846 the contradiction and the same has to be brought on record as per the law. It was observed:
"64. The court cannot suo motu make use of statements to police not proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court. The words 'if duly proved' used in Section 162 Cr. P.C. clearly show that the record of the statement of witnesses cannot be admitted in evidence straightaway, nor can be looked into, but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross-examination of the Investigating Officer. The statement before the Investigating Officer can be used for contradiction but only after strict compliance with Section 145 of the Evidence Act, that is, by drawing attention to the parts intended for contradiction.
65. Section 145 of the Evidence Act reads as under:
"145. Cross-examination as to previous statements in writing.-- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in 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."
66. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of the witness is drawn to that part and this must be reflected in his cross-examination by reproducing it. If the witness 38 2024:HHC:11846 admits the part intended to contradict him, it stands proved and there is no need for further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process, the contradiction is merely brought on record, but it is yet to be proved. Thereafter, when the Investigating Officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the Investigating Officer who, again, by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out the part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act, that is, by drawing attention to the parts intended for contradiction." [See: V.K. Mishra v. State of Uttarakhand : ((2015) 9 SCC 588]
32. In the present case, the defence has not put the contradiction to the victim and the victim has not been given a chance to explain the same. Therefore, the same cannot be used to discard the testimony of the victim.
33. In the present case, the victim had identified the accused at the police station. No test identification parade was conducted in the presence of a learned Judicial Magistrate. It was laid down in Chunthuram v. State of Chhattisgarh, (2020) 10 SCC 39 2024:HHC:11846 733, that an identification made in the police presence is hit by Section 162 of Cr.P.C. It was observed:-
"11. The infirmities in the conduct of the test identification parade would next bear scrutiny. The major flaw in the exercise here was the presence of the police during the exercise. When the identifications are held in police presence, the resultant communications are tantamount to statements made by the identifiers to a police officer in the course of investigation and they fall within the ban of Section 162 of the Code. (See Ramkishan Mithanlal Sharma v. State of Bombay [Ramkishan Mithanlal Sharma v. State of Bombay, (1955) 1 SCR 903: AIR 1955 SC 104:
1955 Cri LJ 196].)"
34. Thus, no reliance can be placed upon the identification of the accused conducted in the police station.
35. It was submitted that the test identification parade was necessary and in the absence of the test identification parade, the identity of the accused has not been established. This submission is not acceptable. It was laid down by the Hon'ble Supreme Court in Matru alias Girish Chandra Versus State of UP (1971) 2 SCC 75 that the test identification parade does not constitute a substantive piece of evidence. It is meant for the investigating agency to lend an assurance that the investigation is proceeding along the right lines. This position was reiterated in Ronny v. State of Maharashtra, (1998) 3 SCC 625: 1998 SCC (Cri) 859 and it was held that the substantive piece of evidence is identification in the court 40 2024:HHC:11846 and there is no requirement of its corroboration from a previous identification parade. It was observed:
"18. Section 9 of the Evidence Act deals with the relevancy of facts necessary to explain or introduce relevant facts. It says, inter alia, facts which establish the identity of anything or person whose identity is relevant, insofar as they are necessary for the purpose, are relevant. So the evidence of identification is a relevant piece of evidence under Section 9 of the Evidence Act where the evidence consists of identification of the accused person at his trial. The statement of the witness made in the court, a fortiori identification by him of an accused is substantive evidence but from its very nature it is inherently of a weak character. The evidence of identification in the TIP is not a substantive evidence but is only corroborative evidence. It falls in the realm of investigation. The substantive evidence is the statement of the witness made in the court. The purpose of the test identification parade is to test the observation, grasp, memory, capacity to recapitulate what he has seen earlier, strength or trustworthiness of the evidence of the identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in court. If a witness identifies the accused in court for the first time after a long time, the probative value of such uncorroborated evidence becomes minimal, so much so that it becomes unsafe to rely on such a piece of evidence. But if a witness has known an accused earlier in such circumstances which lend assurance to identification by him in court and if there is no inherent improbability or inconsistency, there is no reason why his statement in court about the identification of the accused should not be relied upon as any other acceptable but uncorroborated testimony.
19. In Budhsen v. State of U.P. [(1970) 2 SCC 128: 1970 SCC (Cri) 343: AIR 1970 SC 1321] the witness saw the assailants when they were running away after the alleged murder. Observing that the witness had only a mere fleeting glimpse and for identification one would certainly expect more firm and 41 2024:HHC:11846 positive reference, this Court did not consider it safe to rely on the TIP evidence as corroborative evidence of identification in court by the witness. About the identification of the accused in court, it was indicated that the same did not provide safe and trustworthy evidence to sustain a conviction. This Court also explained the nature of the identification parade, its essentials and its value.
20. In Rameshwar Singh v. State of J&K [(1971) 2 SCC 715: 1971 SCC (Cri) 638: AIR 1972 SC 102: (1972) 1 SCR 627] a three- judge Bench of this Court while dealing with the question of the identification parade observed as follows: (SCC pp. 718- 19, para 6) "[I]t may be remembered that the substantive evidence of a witness is his evidence in court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after the former's arrest is of vital importance because it furnishes to the investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. ... The identification during police investigation, it may be recalled, is not substantive evidence in law and it can only be used for corroborating or contradicting evidence of the witness concerned as given in court. The identification proceedings, therefore, must be so conducted that evidence with regard to them when given at the trial, enables the court safely to form appropriate judicial opinion about its evidentiary value for the purpose of corroborating or contradicting the statement in court of the identifying witness."
21. Shri Lalit, learned counsel for the appellants, relied upon the observations of this Court in Kanan v. State of Kerala [(1979) 3 SCC 319: 1979 SCC (Cri) 621: AIR 1979 SC 1127] and argued that the evidence of identification of PWs 29 and 34 is valueless as they were not called to identify the appellants in the test identification parade. In that case, the 42 2024:HHC:11846 charge against the accused was that they entered into a conspiracy as members of a Naxalite party to raid Police Station Kuttiadi. In the course of the raid, the police station was attacked and articles were burnt. No member of the police station or staff was able to identify the raiders. Apart from the evidence of conspiracy, there was evidence of PW 25 who identified the appellants therein running away near the scene of occurrence after the raid took place in the police station. Firstly, his presence in the travelling bungalow was doubted and secondly, it was pointed out that he identified the appellants therein as persons who were running away near the place of occurrence and that the witness had admitted that he knew those two persons by face, yet he named them while identifying them in court. It was observed that there was a huge crowd after the police station was attacked and if those two appellants were seen running away that by itself would not show that they had taken part in the raid. It was on those facts, that it was observed that where a witness identified an accused in the court for the first time, who was not known to him, his evidence was absolutely valueless unless there had been a previous test identification parade to test his power of observation and that the idea of holding test identification parade was to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness might have seen only once and that if no test identification parade was held, it would be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in court. The rationale behind the observation of this Court is that as the evidence of identification of an accused in court is inherently of a weak character, as such it requires corroboration by way of test identification parade, so where the attending circumstances are such that the possibility of identifying the accused by the witness becomes bleak, as in that case, the witness only saw the appellants running away from the crowd, then such uncorroborated evidence cannot be relied upon to base a conviction. That judgment, in our view, did not lay down as a principle of law that where the accused was known to the witness from an earlier period or 43 2024:HHC:11846 where the witness had a chance to interact with the accused or that in a case where the witness had an opportunity to observe the distinctive features of the accused, his evidence of identification in the court cannot be given any credence merely because the witness was not asked to identify the accused in the test identification parade.
22. In Mohd. Abdul Hafeez v. State of A.P. [(1983) 1 SCC 143:
1983 SCC (Cri) 139: AIR 1983 SC 367] the accused, along with others, was convicted under Section 392 read with Section 34 IPC. The victim did not give the name or description of the appellant therein in the first information report. This Court observed that the total absence of any such description which would have provided a yardstick to evaluate the identification of the appellant at a later date by a victim, would render his later identification weak. No test identification was conducted in that case, so it was held that the identification in court would hardly furnish any evidence against the appellant. Indeed, in that case, this Court observed that the witness did not give the description of the accused in the first information report or before the identification and the evidence of his identification was found to be weak, in the absence of corroboration, for being acted upon.
23. The identification of the appellants by PW 29, PW 34, PW 42 and PW 45 in court for the first time without prior identification by them in the test identification parade has been the subject matter of comment. Insofar as the identification of the appellants by PW 42 and PW 45 are concerned, the trial court as well as the High Court had not accepted the same but the identification of the appellants by PW 29 and PW 34 had been accepted by both the trial court as well as by the High Court and in our view rightly. We have already laid down above that the identification of the accused by a witness if he had an opportunity to interact with him or to notice his distinctive features lends assurance to his testimony in court and that the absence of corroborative evidence by way of test identification parade would not be material. From the above-mentioned aspect, the evidence of PW 42 and PW 45 has been rightly rejected 44 2024:HHC:11846 by the trial court and the High Court as PW 42 is a rickshaw driver who had no opportunity to see closely the appellants whom he took to Rooman Bungalow in the night. So also PW 45's identification of A-1 in court without his participation in the TIP has also no probative value inasmuch as he went to the shop of the witness as one of the customers and there was no specific reason why he should watch A-1 closely. But the same is not the position with PW 29 and PW 34. They were talking to the deceased Rohan Ohol at the time when the appellants came to Rooman Bungalow. Indeed A-1 wished the deceased Rohan who introduced A-1 as Nitin Anil Swargey. Thereafter, A-1 introduced A-2 and A-3 to Rohan Ohol PW 29 and PW 34. They talked together for about 7-8 minutes and on Rohan Ohol's telling them to sit inside the house, they left their soiled shoes on the verandah and entered the house. It can safely be presumed that had they not given the name and description of the appellants at the earliest when their statement was recorded by the police on 24-7-1992, the defence in their searching and lengthy cross-examination would have brought on record omissions and contradictions with reference to their earlier statement given to the police. As such, evidence of identification of the appellants at their trial by the said witnesses even without the corroboration of the identification parade, had been rightly relied upon by the trial court as well as by the High Court. We, therefore, find no illegality in the judgment of the courts below in accepting their evidence of identification."
36. Similar is the judgment in State of Maharashtra Versus Suresh (2000) 1 SCC 471 wherein it was observed:
"We remind ourselves that identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is the one who was seen by them in connection with the commission of the crime. The second is to satisfy the investigating authorities that the suspect is the real 45 2024:HHC:11846 person whom the witnesses had seen in connection with the said occurrence.
37. It was held in Umesh Chandra v. State of Uttarakhand, (2021) 17 SCC 616: 2021 SCC OnLine SC 689 that test identification parade is not a substantive piece of evidence and is required where the accused was unknown or the witness had a fleeting glance at the accused. It was observed:
"9. A test identification parade under Section 9 of the Evidence Act is not substantive evidence in a criminal prosecution but is only corroborative evidence. The purpose of holding a test identification parade during the stage of investigation is only to ensure that the investigating agency prima facie was proceeding in the right direction where the accused may be unknown or there was a fleeting glance of the accused. Mere identification in the test identification parade therefore cannot form the substantive basis for conviction unless there are other facts and circumstances corroborating the identification."
38. This position was reiterated in Kishore v. State of Punjab, 2024 SCC OnLine SC 110 wherein it was observed:
8. It is true that a test identification parade is not mandatory. The test identification parade is a part of the investigation. It is useful when the eyewitnesses do not know the accused before the incident. The test identification parade is usually conducted immediately after the arrest of the accused. Perhaps, if the test identification parade is properly conducted and is proved, it gives credence to the identification of the accused by the concerned eyewitnesses before the Court. The effect of the prosecution's failure to conduct a test identification parade will depend on the facts of each case.46
2024:HHC:11846
39. This position was reiterated in P. Sasikumar v. State of T.N., (2024) 8 SCC 600: 2024 SCC OnLine SC 1652 wherein it was observed at page 606:
"21. It is well settled that TIP is only a part of police investigation. The identification in TIP of an accused is not a substantive piece of evidence. The substantive piece of evidence, or what can be called evidence is only dock identification that is identification made by witness in court during trial...."
40. Therefore, the Test Identification Parade is not essential in every case and when the witness knew the accused or he had a chance to see the accused, his identification in the Court cannot be doubted. In the present case, the victim's testimony shows that she had sufficient time to see the accused and notice his features. Hence, the submission that the identification of the accused is suspect in the absence of a previous test identification parade cannot be accepted.
41. The learned Trial Court had rightly noticed that the disclosure statement made by the accused and consequent recovery also corroborated the version of the victim. ASI-Sohan Lal (PW12) stated that he interrogated the accused. The accused disclosed that he could get the clothes recovered. He led the police to his house from where he got recovered his clothes. The testimony of Vidya Nand (PW9) is corroborated by the statement 47 2024:HHC:11846 of Raman Singh (PW7) who stated that the accused made a statement (Ext. PW2/A) that he could get his clothes recovered. He led the police to his house and got a shirt and trousers recovered.
It was suggested to this witness in the cross-examination that he wanted to engage the accused, which shows that he had no enmity with the accused and there is no reason to discard his testimony.
He stated in his cross-examination that the accused brought a red shirt and brown trousers. The victim had specifically mentioned in her examination in chief that the accused was wearing a red shirt.
This circumstance corroborates the victim's version regarding the identity of the accused.
42. Other witnesses reached the spot after the incident had taken place and they cannot depose anything about the incident and it is not necessary to refer to their testimonies.
43. Therefore, the learned Trial Court had rightly held that the testimony of the victim was believable and was corroborated by the medical evidence as well as the other circumstances on record. The accused had inflicted injuries on the forehead, cheekbone, below the right ear, midline of the neck, chin right ear lobule auricular region and the left hand. In the opinion of the medical officer, the injuries were dangerous to life. The injury by 48 2024:HHC:11846 Darat was caused on the neck, which is a vital part and had the victim been dead, the accused would have been guilty of murder since he had inflicted an injury on the vital part of the body with a deadly weapon namely a sharp-edged darat. Therefore, the learned Trial Court had rightly convicted the accused for the commission of an offence punishable under Section 307 of IPC.
44. The victim also stated that the accused felt her breasts and when she resisted the accused gave her beatings. This proves the ingredients of Section 354 of IPC. Thus, the learned Trial Court had rightly convicted the accused of the commission of an offence punishable under Section 354 of IPC.
45. Learned Trial Court sentenced the accused to life imprisonment because as per the learned Public Prosecutor, the accused was involved in another crime for the commission of offences punishable under Sections 304 and 376 of IPC. Section 298 of Cr.P.C. provides that the previous conviction or acquittal may be proved by certified copy under the hands of the officer having the custody of the record of the Court, in which conviction or acquittal was held or a certificate signed by the officer in charge of the Jail, in which, the punishment or any part thereof was undergone or by the production of the warrant of commitment 49 2024:HHC:11846 together with the identity of the accused. In the present case, no such certificate was produced. The learned Public Prosecutor merely stated that the accused was involved in the commission of offences punishable under Sections 302 and 376 of IPC and the learned Trial Court believed him. There is nothing on record to show that the accused was convicted by the Competent Court;
hence, in these circumstances, the learned Trial Court had acted upon irrelevant consideration, while sentencing the accused.
46. Section 307 of IPC provides the punishment for a term which may extend to ten years and if the hurt is caused, imprisonment for life, thus, imprisonment for life is the maximum imprisonment that can be imposed. Since the maximum imprisonment was imposed on irrelevant consideration, therefore, the same is to be interfered with.
47. The learned Trial Court noticed that the accused was a poor person and he had an old mother. Keeping in view the number of injuries caused by the accused to a lone woman in the jungle, the accused does not deserve any leniency but he also does not deserve the maximum imprisonment. Balancing the circumstances of the case and the family circumstances of the accused noticed by the learned Trial Court, the sentence of life 50 2024:HHC:11846 imprisonment is reduced to imprisonment for 10 years. Learned Trial Court had awarded the sentence of two years for the commission of an offence punishable under Section 354 of IPC, which is not excessive and no interference is required with it.
48. Therefore, in view of the above, the present appeal is partly allowed and the sentence of imprisonment for life awarded by the learned Trial Court for the commission of an offence punishable under Section 307 of IPC is reduced to 10 years of rigorous imprisonment. The accused will be entitled to the set-off and both the substantive sentences of imprisonment shall run concurrently. Subject to this modification, the rest of the judgment of the learned Trial Court is upheld.
49. Record of learned Trial Court be returned forthwith.
(Vivek Singh Thakur) Judge (Rakesh Kainthla) Judge 20th November, 2024 (saurav pathania)