Himachal Pradesh High Court
Arun Kumar @ Manee vs State Of H.P on 10 January, 2025
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
Neutral Citation No. ( 2025:HHC:2282-DB ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 480 of 2017 a/w Cr.
Appeal No. 192, 337, 382, 623 of 2017 and Cr. Revision No. 114 of 2018 Reserved on: 21.12.2024 Date of Decision: 10.01.2025 Cr. Appeal No. 480 of 2017
1. Arun Kumar @ Manee ...Appellant Versus State of H.P. ...Respondent Cr. Appeal No. 192 of 2017
2. Pradeep Gupta ...Appellant Versus State of H.P. ...Respondent Cr. Appeal No. 337 of 2017
3. Anil Kumar @ Sethu ...Appellant Versus State of H.P. ...Respondent Cr. Appeal No. 382 of 2017
4. Rajeev Kaushal ...Appellant Versus State of H.P. ...Respondent Cr. Appeal No. 623 of 2017
5. Sunil Kumar @ Charna ...Appellant Versus State of H.P. ...Respondent Cr. Revision No. 114 of 2018
6. Pradeep Gupta ...Petitioner Versus State of H.P. ...Respondent 2 Neutral Citation No. ( 2025:HHC:2282-DB ) Coram Hon'ble Mr Justice Vivek Singh Thakur, Judge. Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes Cr. Appeal No. 480 of 2017 For the Appellant/State : Ms. Sheetal Vyas, Advocate. For the Respondent : Mr. J.S. Guleria, Deputy Advocate General.
Cr. Appeal No. 192, 623 of 2017 & Cr. Revision No. 114 of 2018 For the Appellant/State : Mr. Fariad Singh Virk and Mr. Dheeraj K. Vashisht, Advocates.
For the Respondent : Mr. J.S. Guleria, Deputy Advocate General.
: Mr. Ashok Kumar Tyagi,
Advocate for private
respondents in Cr. Appeals
No.192 and 623 of 2017.
Cr. Appeal No. 337 of 2017
For the Appellant/State : Mr. Ajay Kochhar, Sr. Advocate,
with Mr. Vivek Sharma,
Advocate.
For the Respondent : Mr. J.S. Guleria, Deputy
Advocate General.
: Mr. Ashok Kumar Tyagi,
Advocate for private
respondent.
Cr. Appeal No. 382 of 2017
For the Appellant/State : Mr. Sanjeev Kumar Suri,
Advocate.
For the Respondent : Mr. J.S. Guleria, Deputy
Advocate General.
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes. 3
Neutral Citation No. ( 2025:HHC:2282-DB ) Rakesh Kainthla, Judge The present appeals are directed against the judgment dated 27.03.2017, vide which the appellants (accused before learned Trial Court) were convicted of the commission of offences punishable under Section 302 read with Section 120B of the Indian Penal Code (in short 'IPC') and Section 27 of the Arms Act. In addition to above, appellant-Rajeev Kaushal was also convicted of the commission of an offence punishable under Section 25 of the Arms Act, and order dated 07.04.2017, vide which they were sentenced as under:-
Section Sentence imposed Under Sections 302 and 120B of IPC To undergo rigorous imprisonment for life and to pay a fine of ₹25,000/- each. Under Section 27 of the Arms Act,To undergo rigorous 1959 imprisonment for three years and to pay a fine of ₹5,000/- each. Accused-Rajeev Kaushal is alsoTo undergo rigorous
sentenced under Section 25 of theimprisonment for three years and Arms Act, 1959 to pay a fine of ₹5,000/-
All the substantive sentences were ordered to run concurrently.
2. The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.
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2. Briefly stated, the facts giving rise to the present appeals are that the police presented a challan against the accused for the commission of offences punishable under Sections 302 and 120B of IPC and Sections 25 and 27 of the Arms Act. It was asserted that Police Post-Mehatpur informed the Police Station Sadar Una that a shooting incident had taken place in plot No. 12B of Mehatpur Industrial Area. SI/SHO Kamaldeep (PW50), ASI Maan Singh (PW28), ASI Anjan Pal, HC Rajiv Kumar, HC Sartaj Singh and Constable Rajat Kumar went to verify the correctness of the information in the vehicle bearing registration No. HP-20D-7645, which was being driven by Rajender Singh. Informant Dharma Nand (PW15) made a statement (Ext. PW15/A) that he was employed as a labourer in Jain Oil Mills located in Mehatpur Industrial Area. Vinod Kumar Jain (since deceased) owned the factory. Vinod Kumar Jain had another factory located in Jammu; hence, he used to visit the factory located at Una infrequently. Accused Pradeep Kumar used to look after the factory in the absence of Vinod Kumar Jain. The informant Dharma Nand and other labourers were sitting on the roof of the factory on 14.02.2013 at about 12:30 pm when they heard a gunshot. He and Duben Prasad @ Pandey (PW16) ran towards the factory gate and saw that 5 Neutral Citation No. ( 2025:HHC:2282-DB ) Vinod Kumar was lying on the ground with his face down. Three persons sped away on a motorcycle. The informant and other persons found that Vinod had suffered a bleeding injury on his back. The informant called Pradeep. Pandey, Pradeep, the informant and Vinod Kumar carried the injured to NFL hospital, Nangal. Dr Vinay Gulati (PW10) examined Vinod Kumar and declared him brought dead. He issued the report (Ext. PW10/A). The statement (Ext. PW15/A) was sent to the police station where FIR (Ext. PW43/A) was registered. SI/SHO Kamaldeep (PW50) conducted the investigation. He seized the clothes of the deceased and wrapped them in a cloth parcel. He sealed the parcel with seven impressions of seal 'M'. The seal impression (Ext. PW3/A) was taken on a separate piece of cloth. The clothes were seized vide memo (Ext. PW3/B). He conducted the inquest and prepared the report (Ext. PW1/A). He filed an application (Ext.PW11/A) for conducting the post-mortem examination of the deceased. Dr Navneet Kumar (PW11) conducted the post-mortem examination and issued the report (Ext. PW11/B) stating that the deceased had died because of a massive haemorrhage leading to shock caused by a fracture of scapula, fracture of ribs on the right side with Digitally signed by KARAN SINGH GULERIA ruptured right lung, liver and stomach with haemothorax, Date: 2025.01.10 15:12:14 IST 6 Neutral Citation No. ( 2025:HHC:2282-DB ) hemoperitoneum and pneumomediastinum. These injuries could be caused by a gunshot with a firing range of approximately 2 meters. He preserved the viscera and the pellets and handed them over to the police official accompanying the dead body. SI- Kamaldeep (PW50) went to the spot and prepared the spot map (Ext. PW50/A). He collected the sample of the blood found on the spot and seized it vide memo (Ext. PW3/D). He obtained the control sample of the soil and put it in a small box. He sealed and wrapped the boxes in different parcels (Ext. P18 to Ext. P20). The photographs (Ext. PA to PE) were taken. SI/SHO recorded the statements of witnesses as per their versions. Further investigation was conducted by Surinder Kumar Sharma (PW51). He interrogated Pardeep Gupta. He called accused Anil Kumar @ Sethu for interrogation based on the information revealed during the interrogation of Pradeep Gupta. He found that Rajeev Kaushal and Sunil Kumar @ Charna were staying in Saini Guest House in Room No.104 based on the information disclosed by Anil Kumar @ Sethu. He went to the guest house, where he found Rajeev Kaushal and Sunil Kumar. He interrogated them and found the involvement of Arun Kumar in the incident. He arrested Pradeep Gupta, Anil Kumar @ Sethu, Sunil Kumar, Rajeev Kaushal and Arun Kumar. He 7 Neutral Citation No. ( 2025:HHC:2282-DB ) visited the factory where accused Pradeep Gupta resided. He seized a laptop and currency notes worth ₹44,010/- vide memo (Ext. PW1/C). The laptop, adapter and carrying case were put in a cloth parcel, and the parcel was sealed with four impressions of seal 'B'. The currency notes were wrapped in a separate cloth parcel, and the parcel was sealed with three impressions of seal 'B'. Specimen seal (Ext. PW1/B) was taken on a separate piece of cloth. He joined Babita Jain (PW42) with the investigation. She produced a list of papers (Ext PW42/A) stated to have been given by accused Pradeep Gupta to deceased Vinod Jain. He seized the list vide memo (Ext. PW1/H). Rajeev Kaushal made a disclosure statement on 15.02.2013 that he had concealed the weapon of offence near Primary School Dehla under some logs of wood and he could get it recovered. The statement (Ext. PW1/D) was reduced into writing. Rajeev Kaushal led the police party to the place where he had concealed the weapon. He got recovered a country-made 12-bore gun placed in a plastic bag with two live cartridges and one empty shell kept underneath the heap of wood. The gun was measured and found to be 25.5 inches long. Its sketch (Ext. PW1/E) was prepared. The gun-fired shell and plastic bag were wrapped in a cloth parcel, and the parcel was sealed with three Impressions of seal 'A'. Two live 8 Neutral Citation No. ( 2025:HHC:2282-DB ) cartridges were placed in a separate piece of cloth parcel, and the parcel was sealed with three Impressions of seal 'A'. These were seized vide memo (Ext. PW1/G). The seal impression (Ext. PW1/F) was taken on a separate piece of cloth, and the seal was handed over to witness Ashwani Jain (PW1) after the use. He took photographs of the spot of recovery (Ext. PD and PE). He prepared the spot map (Ext. PW51/A). Motorcycle bearing registration No. HP-20C-2713 was recovered at the instance of accused Sunil Kumar @ Charna from the parking of Saini Guest House, College Road Una. The motorcycle and document were seized vide memo (Ext. PW5/C). Surinder Kumar Sharma (PW51) also seized the entry register (Ext. PW5/A) of Saini Guest House containing the entry of the name of Rajeev Kaushal at Sr. No. 261. Register was seized vide memo (Ext. PW5/B). He searched the accused. He found a mobile phone with Rajeev Kaushal, which was seized vide memo (Ext. PW36/E). He also found various articles and a mobile phone in the possession of Arun Kumar, which were seized vide memo (Ext. PW36/B). He found various articles and a mobile phone with Sunil Kumar, which were seized vide memo (Ext. PW36/C). He found two mobile phones and other articles in the possession of Anil Kumar, which were seized vide memo (Ext. PW36/D). He searched Pradeep 9 Neutral Citation No. ( 2025:HHC:2282-DB ) Gupta and found two mobile phones, which were seized vide memo (Ext. PW36/A). He filed an application (Ext. 'DA') for conducting the test identification parade of accused-Rajeev Kaushal, Sunil Kumar and Arun Kumar, however, accused Rajeev Kaushal, Sunil Kumar, and Arun Kumar refused to participate in the test identification parade. An order (Ext. PW51/C) was passed by learned Judicial Magistrate First Class-II, Una. SI Kamaldeep (PW50) conducted further investigation. He filed an application (Ext. PW13/A) for seeking demarcation of the place of incident. Ashwani Kumar (PW13) prepared the spot map (Ext. PW13/B). He issued the report (Ext. PW13/D) and jamabandi (Ext. PW13/C). Kamaldeep (PW50) also filed an application (Ext. PW24/A) before Tehsildar for the demarcation of the place from where the weapon of offence was recovered. Rajesh Kumar (PW24) prepared the spot map (Ext. PW24/B) and issued the jamabandi (Ext.PW24/C). Babita Jain produced the documents of Jain Oil Mills (Ext. PW50/B to Ext. PW50/D), which were seized vide memo (Ext. PW14/A). She produced the bills (Ext. B1 to Ext. B25), which were seized vide memo (Ext. PW14/B). Kamaldeep filed an application before learned CJM, Una, for obtaining the specimen signatures of accused Rajeev Kaushal and Pradeep Gupta. Specimen signatures 10 Neutral Citation No. ( 2025:HHC:2282-DB ) and handwriting (Ext. PW46/S1 to Ext. PW46/S30) were obtained. SI Kamaldeep filed an application (Ext. PW12/A) before Secretary, Nagar Panchayat, Mehatpur for obtaining the map to scale of Plot No.12B, where Jain Oil Mills is located. Ved Prakash (PW12) issued a map (Ext. PW12/B). The list of debtors (Ext. PW42/A), the entry (Ext. PW5/A) made on the register, and the specimen and admitted handwriting were sent to RFSL, Dharamshala for comparison. Dr Minakshi Mahajan (PW46) compared these documents and issued the report (Ext. PW45/A) showing that the list of debtors was written by Pradeep Gupta, who had also put specimen signatures (Ext. PW46/S1 to Ext. PW46/S30). The handwriting on the register was that of Rajeev Kaushal, who had written specimen handwriting (Ext. PW46/S1 to Ext. PW46/S10). The case property was deposited with the MHC-Ravi Kant (PW29), who deposited them in Malkhana. He sent the case property to RFSL, Dharamshala. The result of the analysis (Ext. PW45/B and PX) was issued, showing that human blood was detected on the metal pellets, which was insufficient for further examination. Human Blood of the group 'A' was detected on the shirt, sweater, inner of Vinod Kumar and blood lifted from the spot. Human blood was detected on blood-stained soil, but the result was inconclusive with respect to the blood 11 Neutral Citation No. ( 2025:HHC:2282-DB ) group. The country-made gun was a firearm defined in the Arms Act. Its mechanism was found in working order. The test-fired cartridges fired from the country-made gun were compared with the fired cartridge case, and it was found that the fired cartridge was fired from the country-made gun. The lead residue was detected on the sweater, shirt and upper inner. The range of fire was about two meters. Ten pellets found in a glass vial were lead pellets. The weight of the individual pellet found in the glass vial and the weight of the examined individual pellet of the live cartridge were found to be the same. The pellets could have been fired from the fired cartridge. It was found during the investigation that there was a dispute between accsued Pradeep Kumar and the deceased Vinod Kumar regarding the payment of the dues. Pradeep Jain had handed over a list of debtors to Vinod Jain, which showed that an amount of ₹90,00,000/- was to be taken from the debtors; however, this list was incorrect, and there was a difference of ₹ 20- 25 lakhs. A meeting was held to settle the account between Vinod Jain and Pradeep Gupta on 30.01.2013; however, differences could not be resolved. A meeting was scheduled on 14.02.2013 in which Hari Om, father of Pradeep and Ashwani Jain (PW1) were to participate. Vinod Jain was also to take ₹7,00,000/- from Hari Om. 12
Neutral Citation No. ( 2025:HHC:2282-DB ) Pradeep Gupta entered into a conspiracy with Anil Kumar and hired Sunil Kumar, Arun Kumar and Rajeev Kaushal to murder Vinod Jain. He had paid ₹40,000/- as an advance. All the accused had talked to each other before the incident, as per the call detail records. Narender Kumar had sold the gun to Rajeev Kaushal. SI Kamaldeep obtained the prosecution sanction under the Arms Act (Ext. PW35/A). He recorded the statements of witnesses as per their version and handed over the file to SHO Krishan Lal (PW45), who prepared the challan and the supplementary challan and presented it in the Court of learned Judicial Magistrate, First Class Court No. II, who committed it for trial to learned Sessions Judge. Learned Sessions Judge assigned the matter to learned Additional Sessions Judge-II, Una (learned Trial Court).
3. Learned Trial Court charged accused Pradeep Gupta with the commission of offences punishable under Sections 302, 120B and 420 of IPC and Sections 25 and 27 of the Arms Act, accused Rajeev, Sunil, Arun Kumar and Anil Kumar with the commission of offences punishable under Sections 302, 120B of IPC and Sections 25 and 27 of Arms Act and Narender Kumar with the commission of offences punishable under Sections 25 and 27 of Arms Act.
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4. The prosecution examined 51 witnesses to prove its case. Ashwani Jain (PW1) is the cousin of the deceased Vinod Jain, who had rented the land to him for installing the factory. He (PW1) was also to attend the meeting scheduled between Vinod Jain and Pradeep to resolve the differences in the account. Birbal (PW2) is the witness to the disclosure statement and consequent recovery of the gun. Anil Dutt (PW3) witnessed the recovery of various articles from the spot. Chajju Ram (PW4) saw the accused Rajeev Kaushal, Arun and Anil near the temple before the incident and went to the factory after coming to know of the shooting incident. Tushar (PW5) was working as a Manager at Saini Guest House. He produced the record and witnessed the recovery of the motorcycle. Naresh Kumar (PW6) is the witness to the recovery of a motorcycle from the Saini Guest House. Vicky Thakur (PW7) is the owner of the motorcycle. Rinku (PW8) handed over the motorcycle to Sunil Kumar as per the direction of Vicky Thakur. Deepak Thakur (PW9) is the owner of the vehicle, who handed it over to accused Anil @ Sethu at his request. Dr. Vinay Gulati (PW10) was posted as a Medical Officer who declared that Vinod Jain was brought dead. Dr. Navneet Kumar (PW11) conducted the post-mortem examination of the deceased. Ved Prakash (PW12) prepared the location plan of 14 Neutral Citation No. ( 2025:HHC:2282-DB ) the plot. Ashwani Kumar (PW13) was posted as Patwari, who prepared the spot map of the Jain Oil Mills. Atul Chibber (PW14) is the witness to the recovery of the documents. Dharmanand (PW15) and Duben Prasad @ Pandey (PW16) are the eye-witnesses, who immediately rushed to the spot after hearing the gunshot. Hari Om (PW17), Madan Puri (PW18), Vipan Kumar (PW19), Anil Kumar (PW20), and Balraj Kumar (PW47) were shown as debtors in the list supplied by Pradeep Gupta to Vinod Jain. Constable Narender (PW21) is the witness to the personal search of accused-Narender. Constable Rajat Kumar (PW22) carried the statement of Dharmanand (PW15) to the police station. Arvind Arora (PW23) developed the photographs of the dead body. Rajesh Kumar (PW24) was posted as Patwari, who prepared the spot map of the place of recovery. Constable Sodi Ram (PW25) proved the entry in the daily diary. HHC-Mohan Lal (PW26) received the information regarding the gunshot and entered it in the daily diary. HHC Gurpiara (PW27) carried the special report to CJM and SP Una. SI Man Chand (PW28) accompanied the dead body to whom the articles were handed over by the Medical Officer. HHC Ravi Kant (PW29) was posted as MHC, with whom the case property was deposited. Constable Sushil Kumar (PW30) and Constable Bijinder Singh (PW31) carried the 15 Neutral Citation No. ( 2025:HHC:2282-DB ) case property to RFSL, Mandi and Dharamshala. Rajesh Kumar (PW32) was posted as Assistant Director, RFSL, Mandi, who issued the report of analysis (Ext. PX). Arun Kumar (PW33) was employed in Jain Oil Mills and proved that Pradeep Gupta was looking after the work in the absence of Vinod Jain. Satwinder Kumar (PW34) developed the photographs and transferred the contents of a Handycam to the CD. Abhishek Jain (PW35) was posted as District Magistrate Una, who issued the prosecution sanction to prosecute the accused under the Arms Act. HC Sanjeev Kumar (PW36) is the witness to the personal search and the recovery of various articles from the accused. Devender Verma (PW37), Sanjay Kumar (PW38) and Ganga Narain Jha (PW48) are the Nodal Officers, who provided the call detail records. HC Dharam Pal (PW39) was working as a Nodal Officer in the SP Office Una, who printed out the email received from the mobile operators. Pravesh Kumar (PW40) proved that the mobile phone was being used by Rajeev Kaushal, who used to call Pravesh's sister Pooja (PW44). Rahul (PW41) did not support the prosecution case. Babita Jain (PW42) is the wife of Vinod Jain, who produced the list of sundry debtors and other documents. Karan Singh Guleria (PW43) signed the FIR and witnessed the search of the accused. Kumari Puja (PW44) is the 16 Neutral Citation No. ( 2025:HHC:2282-DB ) witness to the use of mobile phone, however, she turned hostile. Krishan Lal (PW45) prepared the challan. Dr Minakshi Mahajan (PW46) was working as an Assistant Director who issued the report of handwriting analysis. SI Saravjeet Singh (PW49) reached the factory after coming to know about the shooting incident. Inspector Kamaldeep (PW50) and Surender Kumar Sharma (PW51) investigated the case.
5. The accused-Arun Kumar, admitted in his statement recorded under Section 313 of Cr.P.C. that he was arrested by the police on 15.02.2013. He stated that he had refused to participate in the test identification parade as he was already shown to the witnesses. A false case was planted against him, and he was innocent. Accused Sunil Kumar admitted that he was arrested on 15.02.2013 and that he had refused to participate in the test identification parade. He stated that he was already shown to the witnesses. He claimed that he was innocent and he was falsely implicated. Accused Rajeev Kaushal also admitted that he was arrested on 15.02.2013 and that he had refused to participate in the test identification parade. He stated that he was already shown to the witnesses. He denied that he had made any entry in the register. He admitted that his handwriting was obtained before the 17 Neutral Citation No. ( 2025:HHC:2282-DB ) learned Chief Judicial Magistrate. He stated that a false case was made against him. He was not present in Una on 14.02.2013, and he was present in Chandigarh. Accused Narender Kumar admitted that his personal search was conducted by the police. He stated that a false case was registered against him. He worked in a brick kiln and had no concern with the sale of arms. Accused Pradeep Gupta stated that he was present in the factory and had helped to carry the deceased Vinod Jain to the hospital. He admitted that police visited the hospital and recorded the statement of Dharmanand. He admitted that Dr Vinod Gulati declared Vinod Jain as brought dead. He admitted that he knew accused Anil Kumar @ Sethu. He claimed that Anil's taxi was being used by the workers and owner of the factory, namely Vinod Jain. He had no personal acquaintance with accused Anil Kumar. He admitted that Duben Pandy and others rushed towards the gate and found Vinod Jain lying near the factory gate, who was taken to NFL Hospital. He claimed that the taxi of Anil @ Sethu was being taken on hire in connection with the works of the factory. He admitted that a laptop and currency notes worth ₹44,010/- were found in his residence, but he denied that these were seized by the police in his presence. He denied that he had given any list to Vinod Jain or Babita Jain had 18 Neutral Citation No. ( 2025:HHC:2282-DB ) produced the list before the police. He admitted that his mobile phone was seized by the police. He admitted that his signatures were obtained before the learned Chief Judicial Magistrate, Una. He claimed that the list was prepared on the papers on which his signatures were obtained by the police. He was regularly depositing the money in connection with the business of the factory in the account of Vinod Jain. He had deposited around ₹ 1,50,00,000/- in the bank between 13.01.2013 to 14.02.2013. He had also deposited the money in the account of the factory on 12/13.02.2013. A false case was made against him at the instance of Ashwani Jain, who got monetary benefits and did not make any payment to any person. Accused Anil Kumar @ Sethu admitted that he was known to Pradeep Gupta. His taxi was being used for the factory work by the owner. He was called by Surender Sharma on 14.02.2013 at 8:00 pm for inquiry and was arrested on 15.02.2013. His phone was taken in possession on 14.02.2013. A false case was made against him at the instance of Babita Jain because amount was due towards the factory. His taxi was being used by Babita Jain and Vinod Jain. They had no intention of making the payment, and he was falsely implicated in the present case to avoid the payment. The statements of 16 witnesses were recorded in defence. 19
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6. Learned Trial Court held that eye-witnesses Dharma Nand (PW15) and Duben Prasad (PW16) saw accused-Rajeev Kaushal, Sunil Kumar and Arun Kumar speeding away from the spot in a motorcycle. They were also seen by Chhajju Ram (PW4) before the incident. They were duly identified in the Court by the witnesses. Accused Rajeev Kaushal got recovered a gun by making a disclosure statement. The gun was used for firing, as per the report of the FSL. Accused-Rajeev Kaushal had stayed in Saini Guest House and made an entry in the register. His handwriting matched the entries in the register as per the report of Dr. Minakshi Mahajan (PW46). Accused Rajeev Kaushal had demanded a motorcycle from Vicky Thakur. This motorcycle was handed over by Rinku to Sunil @ Charna. The motorcycle was recovered from Saini Guest House. These circumstances duly established the involvement of accused Rajeev Kaushal, Sunil and Anil in the incident. They had refused to participate in the test identification parade. They were duly identified by the eye-witnesses before the police and in the Court. Hence, accused Rajeev Kaushal, Arun Kumar and Sunil Kumar were held liable for the commission of murder. Accused Rajeev Kaushal was proved to be in possession of a firearm. The prosecution sanction was issued by Deputy 20 Neutral Citation No. ( 2025:HHC:2282-DB ) Commissioner, Abhishek Jain to prosecute him; hence, accused Rajeev Kaushal was convicted of the commission of offences punishable under Section 302 read with Section 120-B of IPC and Sections 25 and 27 of the Arms Act, Arun Kumar and Sunil Kumar were also convicted of the commission of offences punishable under Section 302 read with Section 120B of IPC and Section 27 of Arms Act.
7. Learned Trial Court further held that accused Pradeep Gupta was managing the affairs of the firm. He had handed over a list of debtors (Ext. PW42/A) to Vinod Jain, which was produced by Babita-wife of the deceased. He did not allow Babita to talk to anyone in the hospital. The accounts were to be settled between Vinod Jain and Pradeep Gupta. Accused Pradeep Gupta had made inquiries about the arrival of Vinod Jain to Una. He was the only person who knew about the arrival of Vinod Jain. The call details between Pradeep Gupta and accused, Anil @ Sethu, showed that they were in touch with each other. Accused Anil @ Sethu was in touch with Sunil, and Sunil was in touch with Rajeev Kaushal. These circumstances showed that Pradeep Gupta and Anil @ Sethu knew each other. Pradeep Gupta used to avail the services of Anil Kumar. The call detail records were not supported by the 21 Neutral Citation No. ( 2025:HHC:2282-DB ) certificate under Section 65B of the Indian Evidence Act and could not be used as a legally admissible piece of evidence. However, there was other evidence to show that all the accused were in touch with each other, and they had entered into a conspiracy to murder Vinod Jain. The evidence led by the prosecution to prove that Narender had sold the gun to Rajeev was not satisfactory; therefore, the learned Trial Court acquitted accused Narender Kumar of the commission of an offence punishable under Section 25 of the Arms Act and Pradeep Gupta of the commission of an offence punishable under Section 420 of IPC. Learned Trial Court convicted and sentenced the rest of the accused as aforesaid.
8. Being aggrieved from the judgments and orders passed by the learned Trial Court, the accused have preferred separate appeals.
9. In the appeal filed by Rajeev Kaushal, it has been asserted that the learned Trial Court failed to properly appreciate the evidence on record. The evidence was appreciated in a slip- shod and perfunctory manner. The case was based upon circumstantial evidence, and the circumstances were not proved on record. The prosecution examined interested witnesses, and their testimonies contradicted each other. The learned Trial Court erred 22 Neutral Citation No. ( 2025:HHC:2282-DB ) in relying upon their testimonies. Learned Trial Court considered inadmissible evidence while convicting the accused. The provisions of Sections 25 and 27 of the Arms Act were wrongly construed. The benefit of the Probation of Offenders Act was not granted to the accused. It was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.
10. In an appeal filed by Sunil Kumar @ Charna, it has been asserted that the judgment of the learned Trial Court is based upon surmises and conjectures, which is against the law and the facts. The reliance was placed upon inadmissible evidence, which materially prejudiced the accused. There were material contradictions in the statements of prosecution witnesses, and they had materially improved upon their earlier version. The statements of the prosecution witnesses were highly improbable; therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.
11. In an appeal filed by accused Arun Kumar, it was asserted that the case is based upon circumstantial evidence and the circumstances leading to the guilt of the accused were not established. Signatures of the accused were obtained by putting him in fear, and these signatures violate Article 20(3) of the 23 Neutral Citation No. ( 2025:HHC:2282-DB ) Constitution of India. The disclosure statement was recorded after subjecting the accused to torture, and such a statement is not admissible. The prosecution relied upon the interested and untrustworthy witnesses. Learned Trial Court erred in relying upon such evidence. Two versions appeared on record, and the benefit of the same should have been extended to the accused; therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.
12. In the appeal filed by Pradeep Gupta, it was asserted that the learned Trial Court failed to properly appreciate the evidence on record. There was no evidence against Pradeep Gupta to involve him in the present case. He was falsely implicated by the police at the instance of Ashwani Jain (PW1) and Babita Jain (PW42). The police had not seized the mobile phones of Babita Jain, Ashwani Jain and Duben Prasad, which was material. The learned Trial Court acquitted accused, Pradeep Gupta, of cheating and the motive to murder Vinod Jain was not established. There were discrepancies in the various documents. The inquest report did not support the prosecution version. The genesis of the incident was suppressed, and a new version was propounded before the Court. Duben Pandey claimed that he had seen Vinod 24 Neutral Citation No. ( 2025:HHC:2282-DB ) Jain talking to someone on his mobile phone. He had also seen Vinod Jain getting shot; however, FIR was not lodged at his instance but at the instance of Dharma Nand (PW15). All the recovery witnesses were not examined, and an adverse inference has to be drawn against the prosecution. Pradeep Gupta was taken to the police post in Mehatpur on 14.02.2013 but was not produced before the jurisdictional Magistrate on 15.02.2013. The investigation conducted by the police was not fair. The application for police remand does not show that the document containing the list of the debtors was seized by the police, which shows that the document is forged. Accused Pradeep Gupta used to hire the services of Anil @ Sethu, and the conversation between them was normal in the course of business. The police had not seized the mobile phone of Ashwani Jain. The certificate under Section 65B of the Indian Evidence Act was not annexed to the call detail record, and the Trial Court erred in relying upon the same. There was a discrepancy in the CD played in the Court, which showed the date of recording as 16.02.2013 at 1:00 pm, which is contrary to the prosecution case. The expert had not found the markings of firing in the pellet, and it was difficult to connect it to the gun recovered. The prosecution's evidence that the money was paid by the debtors 25 Neutral Citation No. ( 2025:HHC:2282-DB ) to Pradeep Jain was not supported by the documents produced by them. A fabricated false list of debtors was created to raise suspicion regarding the irregularities in the account. The statement of MHC was not recorded on the date of deposit, and there was no mention of any laptop or recovery of ₹44,010/-. Babita Jain had given a different version in her statement recorded under Section 161 Cr.P.C, with which she was duly confronted. Jain Oil Mills had two accounts, out of which one was a CC Account and the other was a current account. Vinod Jain had opened three loan accounts. Pradeep Gupta was only making the cash deposits in one account. Only Vinod Jain could have withdrawn the amount from the account of the mill. Vinod Jain was transferring the money from SBI Mehatpur to SBI Branch Jammu. The money was being recovered after the death of Vinod Jain from the debtors. The prosecution version that there was a dispute regarding the payment of the money, which led the accused Pradeep Jain to engage the shooters to kill the deceased, was not proved; therefore, it was prayed that the present appeal be allowed and the judgment and order passed by learned Trial Court be set aside.
13. In the appeal filed by Anil Kumar @ Sethu, it has been asserted that the judgment has been passed in violation of settled 26 Neutral Citation No. ( 2025:HHC:2282-DB ) principles of criminal jurisprudence. Learned Trial Court convicted the accused wrongly by ignoring the evidence. There was no evidence against the accused to connect him with the commission of crime. The judgment was passed on conjectures and surmises. There was no proof of the involvement of the accused. The only evidence led by the prosecution was to show that accused-Anil had dropped Pradeep Gupta in a taxi at Mehatpur Chowk district Una sometime before Vinod Jain was shot at Mehatpur. This circumstance by itself cannot constitute a criminal conspiracy between Pradeep Gupta and the accused. The accused was plying a taxi, which was being frequently used by Pradeep Gupta for his business purposes. The call detail records were inadmissible in the absence of the certificate. The call detail record from the mobile phone was also not produced to establish the prosecution version. Therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.
14. Babita Jain filed an application for the release/supply of data on the sale and purchase of M/s Jain Oil Mills from the Laptop impounded by the police and the release of ₹ 44,010/--and an Acer Laptop. This application was allowed by the learned Trial Court 27 Neutral Citation No. ( 2025:HHC:2282-DB ) vide order dated 05.04.2018, and SHO was directed to supply Babita Jain with a soft copy of the information.
15. Being aggrieved from the order passed by the learned Trial Court, the present revision has been filed asserting that no one has a right to get the articles seized by the police released during the investigation. No notice was ever served upon the accused, Pradeep Gupta, to contest the application. Babita Jain had filed two applications for releasing the cash and laptop, which were dismissed, and she could not have pursued the present application. The laptop did not belong to Babita Jain and was seized from the petitioner; therefore, it was prayed that the order dated 05.04.2018 passed by learned Additional Sessions Judge-II be quashed and set aside.
16. We have heard Ms Sheetal Vyas, learned counsel for accused Arun Kumar @ Manee, Mr Fariad Singh Virk and Mr Dheeraj K. Vashisht, learned counsel for the accused Pradeep Gupta and Sunil @ Charna, Mr Ajay Kochhar, learned Sr. Advocate assisted by Mr Vivek Sharma, learned counsel for the accused- Anil@ Sethu, Mr Sanjeev Kumar Suri, learned counsel for the accused-Rajeev Kaushal, Mr Ashok Tyagi, learned counsel for Ms 28 Neutral Citation No. ( 2025:HHC:2282-DB ) Babita Jain and Mr J.S. Guleria, learned Deputy Advocate General, for the respondent/State.
17. Ms Sheetal Vyas, learned counsel for the accused-Arun Kumar, submitted that the learned Trial Court erred in relying upon the prosecution case. The statements of Dharma Nand (PW15) and Duben Prasad (PW16) contradicted each other on material particulars. The prosecution's evidence regarding the identification of the accused was unsatisfactory. Certificate under Section 65(B) of the Indian Evidence Act was not annexed to the call detail records, and no reliance could have been placed upon the call detail records. She relied upon the judgments of Musheer Khan @ Badshah Khan & Anr vs State Of M.P, 2010 (2) SCC 748, D. Gopalakrishnan vs Sadanand Naik & Ors, 2005(1) SCC 85 and Malkhan Singh And Anr. vs State of U.P., 1975 (3) SCC 311 in support of her submission.
18. Mr. Fariad Singh Virk and Mr. Dheeraj K. Vashisht, learned counsel for accused Pradeep Gupta and Sunil @ Charna, submitted that there is no evidence to show the criminal conspiracy between him and the other accused. The prosecution case is not proved against the main accused, and the charge of conspiracy is also not established. The prosecution witnesses were 29 Neutral Citation No. ( 2025:HHC:2282-DB ) duly confronted with their previous statements. They made material improvements in their testimonies. Learned Trial Court erred in releasing the data to Babita Jain. The laptop was recovered from the possession of accused-Pradeep Gupta. Therefore, he prayed that the present appeal and the revision be allowed and the judgment and orders passed by the learned Trial Court be set aside.
19. Mr. Ajay Kochhar, learned Senior Counsel for the accused-Anil Kumar @ Sethu, submitted that it is an admitted case of the prosecution that the vehicle of Anil Kumar was engaged by the factory for official purposes. Pradeep Gupta was looking after the affairs of the factory, and his travelling in the vehicle of Anil Kumar cannot constitute a conspiracy. The certificate under Section 65B was not annexed to the call detail record, and the same is inadmissible. He relied upon the judgment of the Hon'ble Supreme Court in Sundar @ Sundarrajan V. State, 2023 (5) SCR 1016, in support of his submission.
20. Mr. Sanjeev Kumar Suri, learned counsel for accused Rajeev Kaushal, submitted that the disclosure statement is not duly proved as per the law. There are various contradictions in the statements of the witnesses. In any case, the mere statement under Section 27 of the Indian Evidence Act is not sufficient to implicate a 30 Neutral Citation No. ( 2025:HHC:2282-DB ) person with the commission of murder. Therefore, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.
21. Mr. J.S. Guleria, learned Deputy Advocate General for the respondent/State, supported the judgment and order passed by the learned Trial Court. He submitted that the statements of the eyewitnesses are natural and consistent. Any improvement in the testimony of Duben Prasad @ Pandey cannot be used to discard the testimony of Dharmanand (PW15), whose version is duly supported by the FIR. The recovery of the register was duly proved. The reports of RFSL, Mandi and Dharamshala showed that the cartridge was fired from the pistol, and the pellets recovered from the body of Vinod Jain could have been fired from the pistol. The presence of the accused was established by the testimony of Chajju Ram (PW4) near the place of the incident before the shooting. They had stayed in Saini Guest House, and the motorcycle was recovered from their possession. It was proved that the motorcycle was handed over to Charna at the instance of Rajeev Kaushal, which proved the prosecution version that the shooters came in a motorcycle and sped away after shooting Vinod Jain. The prosecution witnesses proved that the list of debtors prepared by 31 Neutral Citation No. ( 2025:HHC:2282-DB ) Pradeep Jain was incorrect. The list showed a greater liability than was due, and the remaining amount was misappropriated by Pradeep Gupta. This was a cause of dispute between him and Vinod Jain. Only Pradeep Gupta was aware of the fact that Vinod Jain would be visiting the factory on the date of the incident. He had got down at Mehatpur Chowk at some distance from the factory, for which no proper explanation was provided by him. All these circumstances point to the conspiracy between accused Pradeep Gupta and the other accused. Learned Trial Court had rightly held him and Anil guilty of criminal conspiracy. Therefore, he prayed that the present appeal be dismissed.
22. Mr. Ashok Kumar Tyagi, learned counsel for Babita Jain, adopted the submissions of Mr. J.S. Guleria, learned Deputy Advocate General, and submitted that no interference is required with the judgment and order passed by the learned Trial Court.
23. We have given considerable thought to the submissions made at the bar and have gone through the records carefully.
24. The prosecution has mainly relied upon the statements of Dharma Nand (PW15) and Duben Prasad @ Pandy (PW16) to prove the incident. Dharma Nand (PW15) stated that he and Pandey were present on the roof of the factory at Mehatpur on 14.02.2013. 32
Neutral Citation No. ( 2025:HHC:2282-DB ) They heard the noise of gunfire. He came down. Pandey followed him. He heard a noise that somebody had shot Vinod Jain. When he reached the factory gate, he found Vinod Jain lying in injured condition. He noticed three persons fleeing on the motorcycle who were present in the Court. Pradeep Gupta also came outside. He (Dharmanand), Duben Pandey and Pradeep took Vinod Jain to the hospital in his (Vinod's) car. The doctor declared that Vinod Jain was dead. The police visited the spot and recorded his statement. He identified three persons who had shot Vinod Jain on 14.02.2013. Arun Kumar was driving the motorcycle. Rajeev Kaushal had used the gun for shooting. He was sitting in the middle and was holding the gun, and Sunil was the pillion rider.
25. Duben Prasad @ Pandey stated that the factory was closed on 02.02.2013, and the entire product was sold. Vinod Jain came to the factory on 14.02.2013 at about 11:30 am. He and his fellow labourers were sitting on the roof of the factory. Vinod Jain came near the gate. He was talking on his mobile. He came out of the gate and the factory. One boy enquired if this was the factory of Jain. He (Duben Prasad) replied in the affirmative. He (Duben Prasad) identified the boy as the accused present in the Court. Vinod Jain had gone outside, so he (Duben Prasad) was under the 33 Neutral Citation No. ( 2025:HHC:2282-DB ) impression that the boy would talk to him. Vinod opened the front door of the left side of his vehicle. The boy took out the gun from his back and fired at Vinod Jain. He noticed one red and blue motorcycle on which two persons were sitting. The boy who had shot Vinod ran towards the motorcycle and sat in the middle. All the three boys ran away. Duben Prasad and others rushed towards the gate and found Vinod lying on the ground. Blood was oozing from his mouth. Pradeep Gupta also reached the spot. He, Dharmanand and Pradeep took Vinod to NFL hospital. There was a dispute between Vinod Jain and Pradeep Gupta about the money. Pradeep Gupta had asked him to enquire whether Vinod would be coming to Mehatpur or not. He talked to his brother in Jammu, who disclosed that Vinod Jain and his wife had left in the morning for Mehatpur. He conveyed this information to Pradeep Gupta. Pradeep informed him telephonically that he was coming in the car of Sethu and he should be taken from Mehatpur Chowk. He went to Mehatpur Chowk and took Pradeep Gupta on a motorcycle at 12:00 noon. He identified the accused at the police station on 19.02.2013. The person who had killed Vinod was Rajeev. Arun was driving the motorcycle, and Sunil was the pillion rider. All of them were present in the Court.
34
Neutral Citation No. ( 2025:HHC:2282-DB )
26. A perusal of the testimonies of these two witnesses shows that both of them were present on the roof of the factory on 14.02.2013 at about 12:25 pm. Both of them ran towards the gate after hearing the gunshot. Dharmanand (PW15) has not stated anything about a boy enquiring if this was the factory of Jain, Vinod opening the front door of his car, Rajeev shooting at Vinod, and shooter Rajeev boarding the motorcycle. Dharmanand (PW15) has categorically stated that when he reached the factory gate, he found Vinod Kumar in an injured condition and three persons fleeing on the motorcycle. He also stated that Duben Prasad (PW16) was behind him (Dharmanand). Therefore, the testimonies of both these witnesses cannot be correct. If Dharmanand (PW15) was unable to see the incident of the shooting in detail and the events before the shooting, it is not explained how Duben Prasad @ Pandey could have witnessed these incidents.
27. Testimony of Dharma Nand (PW15) is duly corroborated by the statement (Ext. PW15/A) made by him on the same day, in which it was mentioned that he was sitting on the roof of the factory on 14.02.2013 at 12:30 pm when he heard the gunshot. He and Pandey reached near the factory gate and saw that Vinod was lying on the ground. A motorcycle carrying three persons sped 35 Neutral Citation No. ( 2025:HHC:2282-DB ) away towards the chowk. He found that Vinod was shot and he had sustained bleeding injuries. Thus, the initial version also shows that the informant Dharma Nand had only seen Vinod in an injured condition and a motorcycle carrying three persons speeding away from the spot. This was also natural because Dharmanand or any other labourer would have rushed towards the gate only after hearing the gunshot. Hence, the testimony of Duben Prasad @ Pandey has to be discarded that he had seen a boy shouting that the factory belonged to Jain, Vinod Jain opening the door, Rajeev shooting at Vinod Jain and boarding the motorcycle. These are material improvements in the testimony of Duben Prasad and cannot be believed.
28. Dharmanand (PW15) stated in his cross-examination that he had noticed Vinod lying in front of the factory gate and the accused fleeing on the motorcycle towards Mandir Chowk. He admitted that he had not given any description/identification of the accused. He had seen Vinod in the factory at 11:30 am on 14.02.2013. Police did not record the statement of Babita in his presence. The police prepared the site plan, took the photographs, and left the spot. He was called to the police station on 19.02.2013. He denied that the gate of the factory is not visible from the roof. 36
Neutral Citation No. ( 2025:HHC:2282-DB ) He did not know the accused personally. He denied that he had not seen anything and had disclosed the names of the accused at the instance of the police. He admitted that he had not told the police about the accused holding the gun in his hand. He admitted that there is a compound of the factory between the stairs and the gate. There is a transformer on the left side of the factory gate. He used to reside inside the factory. Police had called him on 19.02.2013. Two-three officials were present in the vehicle in which he had gone to the police station. He denied that he was making a false statement under the pressure of Babita.
29. It was submitted that this witness has materially improved upon his earlier version because he has mentioned that one accused was holding the gun in his hand, which fact was not mentioned in the statement recorded under Section 154 of Cr.P.C. The mere fact that the witness has not mentioned the gun in the hands of one of the persons riding the motorcycle will not make his testimony doubtful. It was laid down by the Hon'ble Supreme Court in Rattan Singh v. State of H.P., (1997) 4 SCC 161: 1997 SCC (Cri) 525 that the FIR is not a chronicle of every detail and omission of wresting of the gun from it is not sufficient to discard the prosecution case. It was observed at page 165: 37
Neutral Citation No. ( 2025:HHC:2282-DB ) "9. The learned counsel for the appellant made an endeavour to persuade us to concur with the Sessions Judge's view that the omission (in the first information statement) regarding the wresting of the gun from the appellant is enough to conclude that the said part of the story is a later improvement. The omission of the said detail is there in the first information statement, no doubt. But criminal courts should not be fastidious with mere omissions in the first information statement since such statements cannot be expected to be a chronicle of every detail of what happened nor to contain an exhaustive catalogue of the events which took place. The person who furnishes first information to authorities might be fresh with the facts, but he need not necessarily have the skill or ability to reproduce details of the entire story without anything missing therefrom. Some may even miss important details in a narration. Quite often, the police officer who takes down the first information would record what the informant conveys to him without resorting to any elicitatory exercise. It is a voluntary narrative of the informant without interrogation, which usually goes into such a statement. So, any omission therein has to be considered along with the other evidence to determine whether the fact so omitted never happened at all.
(Vide Pedda Narayana v. State of A.P. [(1975) 4 SCC 153: 1975 SCC (Cri) 427: AIR 1975 SC 1252]; Sone Lal v. State of U.P. [(1978) 4 SCC 302: 1978 SCC (Cri) 587: AIR 1978 SC 1142]; Gurnam Kaur v. Bakshish Singh [1980 Supp SCC 567:
1981 SCC (Cri) 496: AIR 1981 SC 631].)
30. It was held in Sat Pal v. State of Punjab, 1995 Supp (4) SCC 1: 1996 SCC (Cri) 11 that non-mentioning of the user of the axe in the FIR cannot be used to discard the prosecution case. It was observed at page 4:
"9. Having considered the impugned judgments in the light of the evidence on record, we are in complete agreement with the High Court that the trial court was not at all 38 Neutral Citation No. ( 2025:HHC:2282-DB ) justified in recording the acquittal of Sat Pal on the basis of the findings quoted earlier. In the FIR that was lodged by Bant Singh within two hours of the incident, he categorically stated that while Janta Singh was lying on the ground, Sat Pal gave axe blows on his neck as also on the left side of his chest. In the course of the trial also, Bant Singh stuck to his above version and gave further details regarding the mode of the user of the axe. It was not expected of Bant Singh, nor was it necessary to give such minute details in the FIR. The finding of the trial court, as earlier quoted, for brushing aside the evidence of PW 2 as against Sat Pal must, therefore, be held to be perverse. For the self-same reason, the finding of the trial court for discarding the evidence of PW 6, in view of his omission to detail the manner of user of the axe by Sat Pal in his statement recorded under Section 161 CrPC, cannot be sustained for it was not a material omission amounting to contradiction."
31. It was held in State of M.P. v. Ramjan Khan, 2024 SCC OnLine SC 3070 that the FIR is meant to be brief and not an encyclopedia of all the events. It was observed:
"11. FIR is not an encyclopedia disclosing all facts and details relating to the entire prosecution case. (See the decisions in Superintendent of Police, CBI v. Tapan Kumar Singh (2003) 6 SCC 175; State of UP v. Naresh (2011) 4 SCC 324; Lalitha Kumari v. Government of UP (2014) 2 SCC 1, and Amish Devgan v. UOI (2021) 1 SCC 1).
12. It is true that the aforementioned decisions would undoubtedly reveal the position that an FIR is not meant to be a detailed document containing a chronicle of all intricate and minute details.
13. Even after referring to the decisions mentioned above, we think it equally relevant to refer to the decision of this Court in Dharma Rama Bhagare v. State of Maharashtra (1973) 1 SCC
537. It was held therein thus:--
"The first information report, it may be pointed out, is never treated as a substantive piece of evidence. It can 39 Neutral Citation No. ( 2025:HHC:2282-DB ) only be used for corroborating or contradicting its maker when he appears in court as a witness."
14. There can be no doubt with respect to the position that the prime object of FIR, from the point of view of the informant, is to set the criminal law in motion and, from the point of the investigating authorities, is to obtain information about the alleged activity so as to enable to take suitable steps to trace and book the guilty. Thus, it can be said that FIR is an important document, though not a substantial piece of evidence, and may be put in evidence to support or contradict the evidence of its maker, viz., the informant. Whether the omission(s) is one which seriously impeaches the credibility of the witness and is sufficient to reject the testimony of the informant would depend upon the question whether it is of an important fact and whether that fact was within the knowledge of the informant, going by the case of prosecution unravelled through the witness concerned.
15. Thus, the position with respect to FIR is clear from the decisions referred supra that even though it is not meant to be an encyclopedia containing chronicle of all intricate and minute details, it could be used to corroborate its maker under Section 157 of the Evidence Act or to contradict its maker viz., the informant under Section 145 of the Evidence Act to establish whether he is a trustworthy witness or not."
32. Thus, the omission to mention the gun in the hands of one of the riders of the motorcycle will not make the testimony of Dharmanand doubtful.
33. The presence of this witness was not disputed in the cross-examination. It was suggested to him that when he came down after hearing gunshots with Pandey and Pradeep, he noticed Vinod lying in front of the factory gate, and the accused fleeing on 40 Neutral Citation No. ( 2025:HHC:2282-DB ) the motorcycle towards Mandir Chowk. This was a positive suggestion made by the accused. This suggestion shows the presence of this witness on the spot; his seeing the deceased Vinod in an injured condition and the accused fleeing on the motorcycle is admitted by the accused. It was laid down by the Hon'ble Supreme Court in Balu Sudam Khalde v. State of Maharashtra, (2023) 13 SCC 365: 2023 SCC OnLine SC 355 that the suggestion put to the witness can be taken into consideration while determining the innocence or guilt of the accused. It was observed at page 382:-
"34. According to the learned counsel, such suggestions could be a part of the defence strategy to impeach the credibility of the witness. The proof of guilt required of the prosecution does not depend on the satisfaction made to a witness.
35. In Tarun Bora v. State of Assam [Tarun Bora v. State of Assam, (2002) 7 SCC 39: 2002 SCC (Cri) 1568], a three-judge Bench of this Court was dealing with an appeal against the order passed by the Designated Court, Guwahati, in TADA Sessions case wherein the appellant was convicted under Section 365IPC read with Sections 3(1) and 3(5) of the Terrorist and Disruptive Activities (Prevention) Act, 1987.
36. In Tarun Bora case [Tarun Bora v. State of Assam, (2002) 7 SCC 39: 2002 SCC (Cri) 1568], this Court, while considering the evidence on record, took note of a suggestion which was put to one of the witnesses and considering the reply given by the witness to the suggestion put by the accused, arrived at the conclusion that the presence of the accused was admitted. We quote with profit the following observations made by this Court in paras 15, 16 and 17, respectively, as under : (Tarun Bora case [Tarun Bora v. State of Assam, (2002) 7 SCC 39: 2002 SCC (Cri) 1568], SCC pp. 43-44) 41 Neutral Citation No. ( 2025:HHC:2282-DB ) "15. The witness further stated that during the assault, the assailant accused him of giving information to the army about the United Liberation Front of Assam (ULFA). He further stated that on the third night, he was carried away blindfolded on a bicycle to a different place, and when his eyes were unfolded, he could see his younger brother Kumud Kakati (PW 2) and his wife Smt Prema Kakati (PW 3). The place was Duliapather, which is about 6-7 km away from his Village Sakrahi. The witness identified the appellant, Tarun Bora, and stated that it is he who took him in an Ambassador car from the residence of Nandeswar Bora on the date of the incident.
16. In cross-examination, the witness stated as under:
'Accused Tarun Bora did not blind my eyes, nor he assaulted me.'
17. This part of the cross-examination is suggestive of the presence of accused Tarun Bora in the whole episode.
This will clearly suggest the presence of the accused, Tarun Bora, as admitted. The only denial is that the accused did not participate in blind-folding the eyes of the witness nor assaulted him."
37. In Rakesh Kumar v. State of Haryana [Rakesh Kumar v. State of Haryana, (1987) 2 SCC 34: 1987 SCC (Cri) 256], this Court was dealing with an appeal against the judgment of the High Court affirming the order of the Sessions Judge whereby the appellant and three other persons were convicted under Section 302 read with Section 34IPC. While reappreciating the evidence on record, this Court noticed that in the cross-examination of PW 4 Sube Singh, a suggestion was made with regard to the colour of the shirt worn by one of the accused persons at the time of the incident. This Court, taking into consideration the nature of the suggestion put by the defence and the reply, arrived at the conclusion that the presence of the accused, namely, Dharam Vir, was established on the spot at the time of occurrence. We quote the following observations made by this Court in paras 8 and 9, respectively, as under (SCC p. 36) 42 Neutral Citation No. ( 2025:HHC:2282-DB ) "8. PW 3, Bhagat Singh, stated in his examination-in- chief that he had identified the accused at the time of occurrence. But curiously enough, he was not cross- examined as to how and in what manner he could identify the accused, as pointed out by the learned Sessions Judge. No suggestion was also given to him that the place was dark and that it was not possible to identify the assailants of the deceased.
9. In his cross-examination, PW 4 Sube Singh stated that the accused, Dharam Vir, was wearing a shirt of white colour. It was suggested to him on behalf of the accused that Dharam Vir was wearing a shirt of cream colour. In answer to that suggestion, PW 4 said it is not correct that Dharam Vir, the accused, was wearing a shirt of a cream colour and not a white colour at that time.' The learned Sessions Judge has rightly observed that the above suggestion at least proves the presence of accused Dharam Vir on the spot at the time of occurrence."
38. Thus, from the above, it is evident that the suggestion made by the defence counsel to a witness in the cross- examination, if found to be incriminating in nature in any manner, would definitely bind the accused, and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.
39. Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. As a legal proposition, we cannot agree with the submission canvassed on behalf of the appellants that an answer by a witness to a suggestion made by the defence counsel in the cross-examination does not deserve any value or utility if it incriminates the accused in any manner."
34. 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 43 Neutral Citation No. ( 2025:HHC:2282-DB ) 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 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 44 Neutral Citation No. ( 2025:HHC:2282-DB ) the three respondents namely Inder Dutt, Raghu Raj and Bikram." (emphasis supplied)
35. 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 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."
36. In the present case, nothing inherently improbable was shown in the testimony of Dharmanand and his testimony was rightly accepted by the learned Trial Court.
37. It was submitted that no test identification parade was conducted to test his power of observation and identification. As per him, he had seen the assailants briefly, and his power of identification should have been tested in the previous 45 Neutral Citation No. ( 2025:HHC:2282-DB ) identification parade. This submission would have helped the defence if they had participated in the test identification parade.
38. SI Kamaldeep (PW50) filed an application for test identification of the accused. Learned Judicial Magistrate, First Class-II, passed the orders on 16.02.2013 and 17.02.2013 regarding the identification. He went to the sub-Jail Una on 17.02.2013 and recorded the proceedings. He specifically mentioned that he had called each accused separately and disclosed his identity to them. He explained the procedure to the accused; however, the accused declined to undergo a test identification parade. They made the statements to this effect. The accused have also not disputed in their statements recorded under Sections 313 of Cr.P.C. that they had refused to undergo a test identification parade; hence, this part of the prosecution case that the accused had not participated in a test identification parade is duly proved.
39. The accused stated that they were shown to the witnesses and had reasonable cause not to participate in the Test Identification Parade. It was submitted that a news item containing the names and the photographs of the accused was published in the newspaper which enabled the eyewitnesses to identify the accused. Surinder Kumar Sharma (PW52) stated in his cross- 46
Neutral Citation No. ( 2025:HHC:2282-DB ) examination by learned counsel for the accused Rajeev Kaushal that he was not aware of a press release published in the newspaper on 16.2.2013 in which the police claimed to have arrested all the culprits in the case and published the photographs of the accused in the newspaper. Dharma Nand (PW15) stated in his cross-examination that he came to know about the names of the accused by going through the newspaper. Reference was made to these statements to submit that the plea of the accused has been probabilized by the cross-examination of these witnesses. This submission is not acceptable. Section 64 of the Indian Evidence provides that the document is to be proved by primary evidence which means that the document itself has to be produced for the perusal of the Court. In the absence of the newspaper, the plea that the news item containing the photographs was published is not acceptable. Further Surinder Kumar Sharma (PW51) stated that he was not aware of the publication of the news item containing the photographs and his statement does not prove that any such news item was published in the newspaper. The statement of Duben Parsad (PW16) only shows that the names were published in the news and it nowhere shows that the photographs were also published; therefore, the plea of the accused that they had a 47 Neutral Citation No. ( 2025:HHC:2282-DB ) reasonable cause for not participating in the Test Identification Parade cannot be accepted.
40. It was laid down by the Hon'ble Supreme Court in Munna v. State (NCT of Delhi), (2003) 10 SCC 599: 2004 SCC (Cri) 944:
2003 SCC OnLine SC 916 that where the accused refused to participate in the test identification parade, they cannot claim that their identification in the Court is improper. It was observed at page 605:
"8. It is true that the normal rule is that the testimony of a witness who does not know an accused from before and identifies him for the first time in the court as a person who had participated in the commission of the crime without holding a previous identification parade does not carry much weight. The substantive evidence of a witness is the statement in court, but as a rule of prudence, earlier identification proceedings are held in order to corroborate the testimony of a witness given in court as regards the identity of the accused, who is not known to him from before. However, this normal rule can have no application in the present case on account of own conduct of the appellant. The investigating officer produced appellant Munna "baparda" (with his face muffled) in the Court of Metropolitan Magistrate on 15-2-1992, and an application was given, praying that necessary orders be passed for holding his test identification parade. It was mentioned in the application that after his arrest, Munna had been kept "baparda" and is being produced in court in that condition. However, the appellant categorically refused to participate in a test identification parade. Thereafter, the learned Metropolitan Magistrate passed the following order: "Accused Munna in muffled face in police custody is produced and identified before me by SI Satya Pal, PS 48 Neutral Citation No. ( 2025:HHC:2282-DB ) Roop Nagar. The accused was questioned whether he wanted to join the test identification parade. He refused to join. He is warned that his refusal to join TIP may be interpreted as evidence against him. Still, he does not want to participate in TIP. Let his statement be recorded."
9. Thereafter, the statement of appellant Munna was recorded, where he stated that he did not want to participate in the test identification parade because the witnesses had already seen him in the police station.
10. In a case where an accused himself refuses to participate in a test identification parade, it is not open to him to contend that the statement of the eyewitnesses made for the first time in court, wherein they specifically point towards him as a person who had taken part in the commission of the crime, should not be relied upon. This plea is available provided the prosecution is itself responsible for not holding a test identification parade. However, in a case where the accused himself declines to participate in a test identification parade, the prosecution has no option but to proceed in a normal manner like all other cases and rely upon the testimony of the witnesses, which is recorded in court during the course of the trial of the case.
11. The effect of not holding a prior test identification parade has been recently examined in considerable detail by a three-judge Bench in Malkhansingh v. State of M.P. [(2003) 5 SCC 746: 2003 SCC (Cri) 1247: JT (2003) 5 SC 323] and after review of practically all the earlier decisions, it has been held as under:
"7. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts which establish the identity of the accused persons are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak 49 Neutral Citation No. ( 2025:HHC:2282-DB ) character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions when, for example, the court is impressed by a particular witness on whose testimony it can safely rely without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold or confers a right upon the accused to claim a test identification parade. ... Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact." (SCC pp. 751-52, para 7) "10. It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in court where the identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned if the identification is made for the first time in court." (SCC p. 753, para 10) "[T]he substantive evidence is the evidence of identification in court, and the test identification parade provides corroboration to the identification of the witness in court if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine." (SCC p. 755, para 16)
12. It may be pointed out that in the above noted case, it was the prosecution which did not hold a prior test identification parade, and for this lapse, the accused were not responsible in any manner as they had never declined to attend or participate in a test identification parade. However, on the 50 Neutral Citation No. ( 2025:HHC:2282-DB ) finding that the prosecutrix appeared to be a witness on whom implicit reliance could be placed and there was no reason why she should falsely identify the appellants as perpetrators of the crime if they had not actually committed the offence, coupled with other circumstances of the case, the accused were convicted and sentenced under Section 376 IPC. What this authority holds is that there is no straitjacket formula that in a case where the accused is not named in the FIR or a statement under Section 161 CrPC or is not otherwise known from before, the testimony of a witness for the first time in court, without a prior test identification parade, becomes valueless. The testimony of such a witness has to be judged like that of any other witness having regard to the facts and circumstances of the case and also keeping in view the fact that prior identification proceedings had not been held.
13. The case in handstands on a much better footing. Though the prosecution moved an application before the Metropolitan Magistrate to hold a test identification parade, but it was the appellant who declined to participate in the same. In his statement under Section 313 CrPC, the appellant Munna stated that he was arrested from his house in Khurja on 14-2-1992. He was produced in the Court of Metropolitan Magistrate on 15-2-1992 by the investigating officer of the case. In the application, it was stated that he had been kept "baparda" and was produced in court "baparda" as a test identification parade had to be held. Had he not been produced in "baparda" condition, the learned Metropolitan Magistrate would have recorded the said fact. It is not a case where there was a long time gap between the time of the arrest and his production in court, as according to the own statement of the appellant, he had been arrested only on the previous day. In his statement under Section 313 CrPC, he did not state that he had been shown to the witnesses at the police station."
41. Thus, where the accused had refused to undergo a test identification parade, it is not permissible for them to contend that their identification in the Court is not proper, and the same should 51 Neutral Citation No. ( 2025:HHC:2282-DB ) have been tested by a previous test identification parade. They were afforded a chance to participate in the test identification parade, but they declined to do so; therefore, the submission that the test identification parade was not conducted and the identification of the accused in the Court is not proper cannot be accepted.
42. The identity of the accused is also established by the statement of Chajju Ram (PW4). He stated that he had gone to a temple in an industrial area, Mehatpur, on 14.02.2013 at 12:00 noon. He saw a motorcycle near the wall of the temple. He noticed three boys who were present at odd hours because normally, people remain present near the temple in the morning. He went from the other gate of the temple and found the car of Ashwani Jain. He went inside the factory. Ashwani Jain received a telephone call at about 12:15-12:30 pm on his mobile phone and was shocked. Ashwani revealed on inquiry that a firing incident had taken place in Jain Oil Mills, and Vinod Jain had sustained a bullet injury. He and Ashwani Jain proceeded towards the spot and found labourers who disclosed that three boys had fled away on a motorcycle after firing at Vinod Jain. Vinod Jain was taken to the hospital in a car. He and Ashwani went to the hospital and found the dead body of Vinod 52 Neutral Citation No. ( 2025:HHC:2282-DB ) Jain. He informed the police while boarding the car by using his mobile phone. He stated in his cross-examination that Ashwani Jain was known to him for 15-20 years. The name of Ashwani Jain's factory was Bansal Tubes. Part of the building was given to Vinod Jain for running the Jain Oil Mills. He had not mentioned to the police that the car of Ashwani Jain was parked on the other side of the temple. He had mentioned in his statement to the police that the motorcycle was parked at odd hours outside the temple. He was confronted with his previous statement, where this fact was not recorded. He had also mentioned that he was having tea with Ashwani Jain and proceeded towards the spot with Ashwani Jain. He denied that he was not present at Mehatpur on 14.02.2013 and was making a false statement.
43. It was submitted that this witness was duly confronted with his previous statement, and he has made material improvements in his statement recorded before the Court. This would cast doubt on the prosecution's version. This submission will not help the accused. The witness has not been properly cross- examined. He was asked about what was told by him to the police. 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 53 Neutral Citation No. ( 2025:HHC:2282-DB ) 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?"
44. Learned Sessions Judge disallowed the questions holding that omission does not amount to contradiction and cannot be put under section 161 of Cr.P.C. He held:
"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 54 Neutral Citation No. ( 2025:HHC:2282-DB ) the deposition in court; they are the cases where what is actually stated is irreconcilable with what is omitted and impliedly negatives its existence."
45. 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 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 55 Neutral Citation No. ( 2025:HHC:2282-DB ) 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.
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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.56
Neutral Citation No. ( 2025:HHC:2282-DB ) 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 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?57
Neutral Citation No. ( 2025:HHC:2282-DB ) 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." xxxxxxxxx
60. In our opinion, the two questions were defective for the reasons given here and were properly ruled out, even though 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)
46. Thus, no advantage can be derived by the defence from the cross-examination of the witness.
47. 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 58 Neutral Citation No. ( 2025:HHC:2282-DB ) 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.
48. 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. 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."
49. It was laid down by 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: -
59
Neutral Citation No. ( 2025:HHC:2282-DB ) "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 does not remember, the investigation officer should have been questioned about it."
50. 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 60 Neutral Citation No. ( 2025:HHC:2282-DB ) 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 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 61 Neutral Citation No. ( 2025:HHC:2282-DB ) 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 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."
51. 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 the same, the same 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 62 Neutral Citation No. ( 2025:HHC:2282-DB ) 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."
52. 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. 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 63 Neutral Citation No. ( 2025:HHC:2282-DB ) 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, 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 64 Neutral Citation No. ( 2025:HHC:2282-DB ) 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 also 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 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.)"
53. 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 65 Neutral Citation No. ( 2025:HHC:2282-DB ) 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, 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 66 Neutral Citation No. ( 2025:HHC:2282-DB ) 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 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.
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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 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 68 Neutral Citation No. ( 2025:HHC:2282-DB ) 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 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 69 Neutral Citation No. ( 2025:HHC:2282-DB ) 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 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 70 Neutral Citation No. ( 2025:HHC:2282-DB ) 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."
54. 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 71 Neutral Citation No. ( 2025:HHC:2282-DB ) 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 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."
55. 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 72 Neutral Citation No. ( 2025:HHC:2282-DB ) 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 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."
56. 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 73 Neutral Citation No. ( 2025:HHC:2282-DB ) 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."
57. 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 be treated as fatal. A discrepancy which does not affect the prosecution case materially cannot create any infirmity.74
Neutral Citation No. ( 2025:HHC:2282-DB ) 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 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 75 Neutral Citation No. ( 2025:HHC:2282-DB ) 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 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 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 76 Neutral Citation No. ( 2025:HHC:2282-DB ) 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 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."
58. 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:
77
Neutral Citation No. ( 2025:HHC:2282-DB ) "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 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 78 Neutral Citation No. ( 2025:HHC:2282-DB ) 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 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."
59. It was laid down by the Hon'ble Supreme Court in Arvind Kumar @ Nemichand and others Versus State of Rajasthan, 2022 Cri. L.J. 374, 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 79 Neutral Citation No. ( 2025:HHC:2282-DB ) observed: -
"48. The principle that when a witness deposes falsehood, the evidence in its entirety has to be eschewed may not have a 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."
60. In the present case the improvements brought out in the cross-examination are minor in nature. They are elucidations of the facts already stated by the witness to the police and will not fall within the definition of an improvement.
61. The manner of the cross-examination of the witness is also not as per the provisions of Section 162 of Cr.P.C. He was asked about what he had told the police, and thereafter, he was confronted with the previous statement. This is an attempt to prove the previous statement recorded by the police under Section 162 of Cr.P.C., which is impermissible. Therefore, no reliance can be placed upon the confrontation of this witness with the previous statement recorded by the police.
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62. It was submitted that he had noticed the accused because, according to him, they were present in the odd hours. He was also present at odd hours; therefore, his presence is also suspect. This submission is not acceptable. He has mentioned his age as 62 years, which means that he is not working anywhere. He explained that the people normally remain present near the temple in the morning before office hours, which is also plausible because people would go to the temple before going to their places of work, and their presence near the temple during office hours would not be normal. Therefore, any person seen near the temple during office hours would strike anyone as odd. He found subsequently that a murder was committed by the persons on the motorcycle which would have compelled him to reflect about the presence of the motorcyclist as unusual.
63. He had also identified the accused as the persons who were present outside the temple. Admittedly, the temple is in the vicinity of the factory, and the presence of the accused near the temple in the vicinity of the factory immediately before the shooting incident would establish their presence near the scene of the crime. His testimony, coupled with the testimony of 81 Neutral Citation No. ( 2025:HHC:2282-DB ) Dharmanand (PW15), establishes the presence of the accused at the scene of the crime.
64. Dharmanand (PW15) and Chajju Ram (PW4) categorically stated that the boys had a motorcycle with them. Vicky Thakur (PW7) stated that he is the owner of the motorcycle. He knew Rajeev Kaushal and Sunil @ Charna. Sunil was working in the Jeewan market, and Rajeev used to remain with him. He identified them in the Court. Rajeev telephoned him (Vicky) on 14.02.2013 and requested him to provide a motorcycle for going to Peer Nigah at 8:00 am. He asked his servant Rinku to give a motorcycle to Rajeev. Rinku gave a motorcycle bearing registration No. HP-20C-2713 to Sunil @ Charna near Bedi Petrol Pump. He got his motorcycle released from the Court. He stated in his cross- examination that Rinku had delivered the motorcycle at a distance of 6-7 kilometres from his house. He (Vicky) was called to the police post in Mehatpur on 15.02.2013 at around 10:00 am. His statement was not recorded on that day. His statement was recorded on 18th February. Rajeev was working in Mini Top, and Kanchan Jeweller shop in Jeewan Market. He did not know the names of the owners. He knew that triple riding was an offence. He 82 Neutral Citation No. ( 2025:HHC:2282-DB ) was told by Rajeev that he and his two friends wanted to go to Peer Nigah.
65. His testimony is duly corroborated by Rinku (PW8). He stated that he was working in the shop of Vicky. Vicky asked him on 14.02.2013 at about 9:00 am to hand over the motorcycle to Sunil Kumar @ Charna near the petrol pump. He delivered the motorcycle to Charna at 9:15 am. Charna disclosed that he and his friends were going to Peer Nigah. He identified Charna and Rajeev Kaushal in the Court. He stated in his cross-examination that police had called him and Vicky at 10:00 am on 15.02.2013. His statement was not recorded on 16.02.2013 and 17.02.2013. He did not have a valid driving licence. He denied that he had not delivered any motorcycle to Charna.
66. There is nothing in their cross-examination to show that they were making false statements. They knew Rajeev and Charna; therefore, they were in a position to identify them. Their testimonies duly proved that Rajeev had demanded the motorcycle from Vicky and Rinku had delivered the motorcycle to Charna.
67. Tushar (PW5) stated that he had been working as a Manager at Saini Guest House. Rajeev Kaushal and Sunil had stayed in the Guest House on 14.02.2013 during the night. They visited the 83 Neutral Citation No. ( 2025:HHC:2282-DB ) guest house at 8:15 pm. Rajeev Kaushal made an entry (Ext. PW5/A) in the register. He had charged ₹450/- from Rajeev Kaushal. The police seized the motorcycle bearing registration No. HP-20C-2713 from the parking of the guest house vide memo (Ext. PW5/C). He stated in his cross-examination that he had not taken identity proof of these persons. He admitted that the purpose of visiting the guest house was not disclosed. The entries were made by the visitors. He admitted that he had not put his initials against the entries or had not affixed the stamp of the hotel. He admitted that he did not know all the persons mentioned in the register.
68. His testimony regarding the fact that Rajeev had put his signatures on the register is duly corroborated by the statement of Dr. Minakshi Mahajan (PW46), who examined the specimen handwriting and the disputed handwriting. She found that the specimen handwriting of Rajeev was similar to the disputed handwriting on the register. The accused-Rajeev did not dispute in his statement recorded under Section 313 Cr.P.C. that his signatures were obtained before the learned Magistrate. Therefore, there is no doubt regarding the authenticity of the specimen's handwriting. The testimony of Dr Minakshi Mahajan proves that the specimen handwriting of Rajeev was similar to the disputed handwriting on 84 Neutral Citation No. ( 2025:HHC:2282-DB ) the register, and this corroborates the testimony of Tushar that Rajiv and Sunil had stayed in the guest house. Recovery of the motorcycle of Vicky from the premises of the Saini Guest House corroborates his version that he had delivered the motorcycle to Rajeev and Sunil. They were staying in the guest house, and the motorcycle was recovered from the guest house. This clearly shows that they had used the motorcycle since it was handed over to them in the morning by Vicky Thakur. In the absence of any explanation from the accused either in the cross-examination of the witnesses or the statement of the accused recorded under Section 313 of Cr.P.C., the only inference which can be drawn is that they were the persons riding the motorcycle of Vicky at the place of incident.
69. Surender Kumar (DW11), stated that he had accompanied his son Rajeev Kaushal to bus stand Una from where he boarded an HRTC Bus for Chandigarh. The bus left the bus stand at 9:30 AM. He is the father of the accused and has an interest in saving his son. Further, he had only seen the accused boarding the bus for Chandigarh and could not have deposed anything when the accused had in fact reached Chandigarh or not. The incident had taken place at 12.30 PM after three hours, when the accused Rajeev Kaushal is stated to have boarded the bus. Hence, his testimony 85 Neutral Citation No. ( 2025:HHC:2282-DB ) does not rule out the presence of accused Rajeev Kaushal at the place of the incident. Moreover, no bus tickets were produced to support his version. No passenger of the bus was examined. Thus, his statement is not sufficient to prove that the accused Rajeev was at Chandigarh at the time of the incident.
70. Accused-Rajeev Kaushal made a disclosure statement (Ext. PW1/D) in the presence of Ashwani Jain, Birbal and Abhay Jain, that he had concealed a gun at a distance of about 200 meters beneath the heap of wood which could be got recovered by him. He led the witnesses to the spot from where the gun was recovered vide memo (Ext. PW1/G). Surinder Sharma (PW51) stated that Rajeev Kaushal made a disclosure statement on 15.02.2013 that he had concealed the weapon of offence near Primary School Dehla under some logs of wood and could get it recovered. Memo (Ext. PW1/D) was prepared in the presence of Ashwani Jain, Abhay Jain and Birbal. The accused led the police party to the place where the weapon was hidden by him. He got recovered a country-made 12- bore gun placed in a plastic bag with two live cartridges and one empty shell from underneath a heap of wood. The weapon of offence was found to be 25.5 inches long. He prepared the sketch of the weapon. He denied in his cross-examination that Rajeev 86 Neutral Citation No. ( 2025:HHC:2282-DB ) Kaushal was detained by the police on the evening of 14.02.2013. He stated that the accused was arrested on 15.02.2013. He denied that the statement under Section 27 of the Indian Evidence Act was fabricated by him in connivance with Ashwani Jain and Babita Jain.
71. Ashwani Jain (PW1) stated that he had visited the police post in Mehatpur along with his nephew Abhay Jain. Rajeev Kaushal was brought from another room. He disclosed that he could get the gun recovered, and he knew about the place where the gun was kept. He had kept the gun in the heap of the wood near Primary School Dehla. The statement (Ext. PW1/D) was reduced into writing. The accused got recovered a gun lying in a plastic bag of IFFCO from Dehla near Primary School from the fields of mustard kept beneath the heap of wood. Two live cartridges and one empty cartridge were also recovered. The police prepared the sketch and measured its length, which was found to be 25.5 inches. Barrel was 20 inches in length. The police seized the gun and prepared the site plan. He stated in his cross-examination that the accused was kept in a separate room. One person was brought by the police. The police questioned him for half an hour. He had seen him for the first time. The questioning ended at around 4:30-5:00 pm. He had seen the school of Dehla on that day for the first time. 87
Neutral Citation No. ( 2025:HHC:2282-DB ) He admitted that lower Dehla is thickly populated and has a population of more than 5000. He denied that shops were located near Primary School Dehla. He admitted that fields were located near the place, and crop of wheat and mustard was sown. He denied that police were already present near the school. He did not know the ownership of the field. The police had not affixed any special mark on the gun.
72. His statement is corroborated by Birbal (PW2), who stated that he went to the police post Mehatpur on 15.02.2013. Ashwani and Abhay Jain were already present in the police post. The police officials disclosed that the accused had confessed his guilt and that he had hidden the gun in the field under the heap of wood. This fact was also disclosed by the accused. The police obtained his signatures on the document. The police official took the accused in a vehicle. He went to the spot in a car. The vehicles were stopped near Primary School Dehla. Rajeev took the police party to the spot. He and other police officials were following the accused. The videography was also conducted. Accused Rajeev Kaushal got one white bag containing a black gun and two live cartridges recovered. The gun was opened, and one used fire cartridge was found in the barrel of the gun. The gun was sealed 88 Neutral Citation No. ( 2025:HHC:2282-DB ) and it was taken in possession. He stated in his cross-examination that he was the Secretary of the Society and never appeared as a witness of the police in any case. He admitted that the houses were located at a distance of 200 meters from the Primary School. He reached police post Mehatpur at about 3:30 pm. Dy.S.P. Surinder, an Inspector and other police officials were present at the police post. The police official had brought the paper. He went to the spot in an Alto car. They returned at 6:15 pm. He had signed the memo on the spot. He denied that no disclosure statement was made and he was making a false statement.
73. There is nothing in the cross-examination of these witnesses to show that they were making incorrect statements. They have consistently stated that the accused, Rajeev, disclosed to the police that he could get the gun recovered, which was concealed by him beneath the heap of the woods and the accused got the gun containing one fired cartridge and two live cartridges recovered.
74. The disclosure statement and the consequent recovery were video recorded. It was submitted that the CD (Ext. PW34/A) showed the date of recording as 16.02.2013 and the time as 1:00 PM, which falsified the recovery. Learned Trial Court had rightly 89 Neutral Citation No. ( 2025:HHC:2282-DB ) pointed out that the time is manually set in the Handycam, and merely because there was a different date and time in the video recording will not make the prosecution case regarding the recovery suspect when it was supported by so many witnesses.
75. Rajesh Kumar, Assistant Director, RFSL, examined the gun and the cartridge. He issued the report (Ext. PX) showing that the pellets could have been fired from the cartridge found in the gun. He admitted in his cross-examination that every firearm has its characteristics, and pellets have to be compared with the test- fired pellets in the laboratory. He explained that the comparison of 12-bore cartridge pellets and smooth-bore firearms becomes difficult. He admitted that he had not compared the bullets in the present case.
76. He has provided a valid explanation for the non- comparison by saying that the comparison is difficult in the case of 12-bore cartridges having smooth bores. The characteristic in the cartridges is caused by defects during the manufacturing or the patterns developed after the use of the firearm for a considerable time. When the gun has a smooth barrel, the characteristic will not appear making it difficult to carry out the comparison; hence, the 90 Neutral Citation No. ( 2025:HHC:2282-DB ) statement of this witness cannot be discarded because he had not noticed any characteristic.
77. Dr Nanveet Kumar (PW50), stated that he had handed over the pellets to the police official accompanying the dead body after taking them out of the dead body. As per the report of the forensic experts, the pellets could have been fired from the gun examined by him and got recovered by the accused Rajeev. Thus, it is duly proved that the gun recovered at the instance of Rajeev Kaushal was used for shooting. This provides valuable corroboration to the testimony of Dharma Nand (PW15) that Rajeev had shot at the deceased, and the accused, Sunil and Arun Kumar were present with him. Arun Kumar was driving the motorcycle while Sunil was sitting as a pillion rider.
78. Ms Sheetal Vyas, learned counsel for the accused-Arun Kumar, submitted that merely riding the motorcycle cannot lead to an inference of the common intention. Reliance was placed upon Malkhan Singh (supra) in support of this submission. In Malkhan Singh, the main accused and co-accused were found cycling. The Hon'ble Supreme Court held that Malkhan Singh had not instigated Munshi Lal to fire at the victim. Malkhan Singh and the victim were not known to each other, and he had no motive. The 91 Neutral Citation No. ( 2025:HHC:2282-DB ) mere fact that Malkhan Singh continued to peddle the bicycle and ran away with Munish Lal cannot lead to an inference that the shot was fired by Munish Lal in furtherance of the common intention. In the present case, the prosecution has led the evidence that the accused, Rajeev Kaushal and Sunil @ Charna, had taken the motorcycle from Vicky in the morning. All of them were moving together. The accused were also found to be staying together after the incident in Saini Guest House. All these circumstances can only lead to an inference that all the accused had entered into a criminal conspiracy and learned Trial Court had rightly held them guilty of criminal conspiracy to murder the deceased Vinod Jain.
79. The case against the accused, Anil Kumar @ Sethu, is based upon the fact that he was in touch with the accused-Pradeep Gupta. He was also in touch with the other co-accused. It was asserted that he was acting as a conduit between Pradeep Gupta and the other accused. The prosecution relied upon the call detail records to prove this fact. Learned Trial Court held that in the absence of the certificate under Section 65B of the Indian Evidence Act, the call detail records were inadmissible in evidence. It was laid down by the Hon'ble Supreme Court in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (Civ) 92 Neutral Citation No. ( 2025:HHC:2282-DB ) 27 : (2015) 1 SCC (L&S) 108: 2014 SCC OnLine SC 732 that the electronic record is inadmissible without the certificate under Section 65B of Indian Evidence Act. It was observed at page 486:
"22. The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over general law. It appears the court omitted to take note of Sections 59 and 65-A dealing with the admissibility of electronic records. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B. To that extent, the statement of the law on admissibility of secondary evidence pertaining to electronic records, as stated by this Court in Navjot Sandhu case [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600: 2005 SCC (Cri) 1715], does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.
80. It was held in Harpal Singh v. State of Punjab, (2017) 1 SCC 734 : (2017) 1 SCC (Cri) 513: 2016 SCC OnLine SC 1293 that the call detail record is not admissible without the certificate under Section 65B of Indian Evidence Act. It was observed at page 754:
"56. Qua the admissibility of the call details, it is a matter of record that though PWs 24, 25, 26 and 27 have endeavoured to prove on the basis of the printed copy of the computer 93 Neutral Citation No. ( 2025:HHC:2282-DB ) generated call details kept in the usual ordinary course of business and stored in a hard disc of the company server, to co-relate the calls made from and to the cellphones involved including those, amongst others recovered from the accused persons, the prosecution has failed to adduce a certificate relatable thereto as required under Section 65-B(4) of the Act. Though the High Court, in its impugned judgment, while dwelling on this aspect, has dismissed the plea of inadmissibility of such call details by observing that all the stipulations contained under Section 65 of the Act had been complied with, in the teeth of the decision of this Court in Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 :
(2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] ordaining an inflexible adherence to the enjoinments of Sections 65-B(2) and (4) of the Act, we are unable to sustain this finding. As apparently, the prosecution has relied upon the secondary evidence in the form of the printed copy of the call details, even assuming that the mandate of Section 65-
B(2) had been complied with, in the absence of a certificate under Section 65-B(4), the same has to be held inadmissible in evidence.
57. This Court in Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] has held in no uncertain terms that the evidence relating to electronic record being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Act would have to yield thereto. It has been propounded that any electric record in the form of secondary evidence cannot be admitted in evidence unless the requirements of Section 65-B are satisfied. This conclusion of ours is inevitable in view of the exposition of law pertaining to Sections 65-A and 65-B of the Act as above."
81. A similar view was taken by this Court in Harbans Lal v. State of H.P., 2016 SCC OnLine HP 228, wherein it was observed:
"24. Their lordships of the Hon'ble Supreme Court in the case of Anvar P.V. v. P.K. Basheer, reported in (2014) 10 SCC 473, have 94 Neutral Citation No. ( 2025:HHC:2282-DB ) held that production of copy of statement pertaining to electronic record in evidence not being the original electronic record, such statement has to be accompanied by a certificate as specified in S. 65-B(4) and such certificate must accompany electronic record like CD, VCD, pen drive etc. Their Lordships have further held that under Section 65-B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the conditions are satisfied. It has been held as follows:
"15. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
16. It is further clarified that the person needs only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic records sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the 95 Neutral Citation No. ( 2025:HHC:2282-DB ) whole trial based on proof of electronic records can lead to a travesty of justice.
17. Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, the resort can be made to Section 45A-opinion of examiner of electronic evidence.
18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India."
82. A similar view was taken in Madan Kansagra v. Perry Kansagra, (2021) 12 SCC 289 : (2023) 2 SCC (Civ) 512 : 2020 SCC OnLine SC 887 wherein it was observed at page 329:
21.7. This Court in a recent decision delivered by a Bench of three Judges in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal [Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 : (2020) 4 SCC (Civ) 1 : (2020) 3 SCC (Cri) 1 : (2020) 2 SCC (L&S) 587] held as under : (SCC p. 56, para 61) "61. We may reiterate, therefore, that the certificate required under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] , and incorrectly "clarified"
in Shafhi Mohammad [Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801 : (2018) 2 SCC (Civ) 346 : (2018) 1 SCC (Cri) 860] . Oral evidence in the place of such certificate cannot possibly suffice as Section 65-B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor [Taylor v. Taylor, (1875) LR 1 Ch D 426] , which has been followed in a number of the judgments of this Court, can also be applied. Section 65-B(4) of the Evidence Act clearly states that secondary evidence is admissible only if led in the manner stated and not 96 Neutral Citation No. ( 2025:HHC:2282-DB ) otherwise. To hold otherwise would render Section 65-B(4) otiose." (emphasis supplied)
83. This position was reiterated in Sundar v. State, 2023 SCC OnLine SC 310 wherein it was observed:
"37. Therefore, the law is now settled: a Section 65B certificate is mandatory in terms of this Court's judgment in Anvar P.V. as confirmed in Arjun Panditrao Khotkar."
84. Thus, learned Trial Court had rightly discarded the call details record.
85. The learned Trial Court further held that the call detail record is only one piece of evidence, and even if it is excluded, the other evidence established that accused Pradeep Gupta and Anil @ Sethu had entered into a conspiracy. However, learned Trial Court has not given the details of the other evidence.
86. It was submitted that accused Pradeep Gupta had got down the vehicle of Anil @ Sethu at Mehatpur Chowk and he had also made inquiries regarding the arrival of Vinod Jain from Duben Prasad. Reliance was placed upon the statement of Duben Prasad (PW16) to prove this fact. This statement, even if accepted to be correct, does not show any conspiracy. At the most; it may give rise to suspicion, however, the suspicion, howsoever grave it may be, does not amount to any proof, and the conviction cannot be recorded based on the suspicion alone.
97
Neutral Citation No. ( 2025:HHC:2282-DB )
87. We have already held that the statement of Duben Prasad @ Pandy is not believable. He has tried to show that he had witnessed much more than Dharma Nand (PW15) had done, which was not possible for him, keeping in view the fact that he was walking behind Dharmanand. Therefore, he is shown to be an unreliable witness, and it is difficult to rely upon his testimony that he was called by accused Pradeep, who had got down at Mehatpur Chowk; hence, there is insufficient evidence to prove that the accused Pradeep had got down at Mehatpur Chowk.
88. It is an admitted case of the prosecution that the vehicle of Anil Kumar @ Sethu was being hired by the factory. Babita (PW42) admitted in her examination-in-chief that Pradeep Gupta used to hire a taxi for going to and fro. The accused also did not dispute in their statements recorded under Section 313 of Cr.P.C. that the vehicle of Anil @ Sethu was being hired by Pradeep Gupta. Therefore, even if both of them were in touch with each other, it cannot lead to an inference that it was in furtherance of conspiracy to murder Vinod Jain. Pradeep Jain being the hirer of the vehicle could very well have called Anil for calling his taxi.
89. There is no other circumstance showing the involvement of Anil @ Sethu and the learned Trial Court erred in 98 Neutral Citation No. ( 2025:HHC:2282-DB ) holding Anil @ Sethu to be guilty of entering into a conspiracy with Pradeep Gupta for murdering Vinod Jain.
90. The case against the accused-Pradeep Gupta, is that he was managing the affairs of the factory. He had handed over a list to the deceased in which the money was shown due to the debtors, but no such money was due. He had embezzled the money and had murdered Vinod Jain to conceal his embezzlement. Even if the case of the prosecution is taken to be correct that the accused, Pradeep Gupta, had furnished a false statement regarding the indebtedness of certain persons in the list, that may furnish a motive to commit the crime, but the motive by itself without any further evidence is insufficient to convict him.
91. Learned Trial Court held that the list was proved to be in the handwriting of Pradeep Gupta. The debtors list showed the names of Vipin Kumar (PW19), Hari Om (PW17), and Madan Puri (PW18) as the debtors. Even though they had paid the money to Pradeep Gupta. Vinod Jain suspected the embezzlement in the account by Pradeep Gupta. The meetings were fixed between Vinod Jain and Pradeep Gupta. This finding only proves the embezzlement of the money by Pradeep Gupta. However, in order to hold the accused, Pradeep Gupta, guilty of conspiracy to commit 99 Neutral Citation No. ( 2025:HHC:2282-DB ) the murder, it has to be proved that he had entered into a conspiracy with Rajeev Kaushal to murder the deceased. It was laid down by the Hon'ble Supreme Court in Esher Singh v. State of A.P., (2004) 11 SCC 585 : 2004 SCC OnLine SC 320 that the prosecution has to prove the agreement between the accused by direct or circumstantial evidence. It was observed at page 604:
"34. Merely because the accused A-1 was holding the deceased, as alleged, to be responsible for the killing of six Sikh students, that per se does not prove conspiracy. Section 120-B IPC is the provision which provides for punishment for criminal conspiracy. The definition of "criminal conspiracy" given in Section 120-A reads as follows:
"120-A. When two or more persons agree to do, or cause to be done,--
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof."
The elements of a criminal conspiracy have been stated to be : (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the statute required an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this, it necessarily 100 Neutral Citation No. ( 2025:HHC:2282-DB ) follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime, is designed to curb immoderate power to do mischief which is gained by a combination of minds. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to encompass all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. (See American Jurisprudence, Vol. II, Sec. 23, p. 559.) For an offence punishable under Section 120-B, the prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act; the agreement may be proved by necessary implication. Offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for use of criminal means.
35. No doubt, in the case of conspiracy there cannot be any direct evidence. The ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy 101 Neutral Citation No. ( 2025:HHC:2282-DB ) is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused.
36. In Halsbury's Laws of England (vide 4th Edn., Vol. 11, p. 44, para 58), the English law as to conspiracy has been stated thus:
"58. Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law, the punishment for which is imprisonment or fine or both in the discretion of the court.
The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied, or in part express and in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however it may be. The actus reus in a conspiracy is the agreement to execute the illegal conduct, not the execution of it. It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose. It is not, however, necessary that each conspirator should have been in communication with every other."
37. There is no difference between the mode of proof of the offence of conspiracy and that of any other offence, it can be established by direct or circumstantial evidence. (See Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra [AIR 1965 SC 682, 686 : (1965) 1 Cri LJ 608] .)
38. It was held that the expression "in reference to their common intention" in Section 10 is very comprehensive and it appears to have been designedly used to give it a wider scope than the words "in furtherance of" in the English law; 102
Neutral Citation No. ( 2025:HHC:2282-DB ) with the result, anything said, done or written by a co- conspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it. Anything said, done or written is a relevant fact only "... 'as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it'. ... In short, the section can be analysed as follows : (1) There shall be a prima facie evidence affording a reasonable ground for a court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a co-conspirator and not in his favour." (AIR p. 687, para 8) We are aware of the fact that direct independent evidence of criminal conspiracy may not ordinarily and is generally not available and its existence invariably is a matter of inference except as rare exceptions. The inferences are normally deduced from acts of parties in pursuance of a purpose in common between the conspirators. This Court in V.C. Shukla v. State (Delhi Admn.) [(1980) 2 SCC 665 : 1980 SCC (Cri) 561] held that to prove criminal conspiracy there must be evidence, direct or circumstantial, to show that there was an agreement between two or more persons to commit an offence. There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances give rise to a 103 Neutral Citation No. ( 2025:HHC:2282-DB ) conclusive or irresistible inference of an agreement between two or more persons to commit an offence. As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied on for the purposes of drawing an inference should be prior in point of time than the actual commission of the offence in furtherance of the alleged conspiracy.
39. Privacy and secrecy are more characteristics of a conspiracy, than of a loud discussion in an elevated place open to public view. Direct evidence in proof of a conspiracy is seldom available; offence of conspiracy can be proved by either direct or circumstantial evidence. It is not always possible to give affirmative evidence about the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all this is necessarily a matter of inference.
40. The provisions of Sections 120-A and 120-B IPC have brought the law of conspiracy in India in line with the English law by making the overt act unessential when the conspiracy is to commit any punishable offence. The English law on this matter is well settled. Russell on Crime (12th Edn., Vol. I, p. 202) may be usefully noted:
"The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor 104 Neutral Citation No. ( 2025:HHC:2282-DB ) in inciting others to do them, but in the forming of the scheme or agreement between the parties, agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough."
Glanville Williams in Criminal Law (2nd Edn., p. 382) states:
"The question arose in an Iowa case, but it was discussed in terms of conspiracy rather than of accessoryship. D, who had a grievance against P, told E that if he would whip P someone would pay his fine. E replied that he did not want anyone to pay his fine, that he had a grievance of his own against P and that he would whip him at the first opportunity. E whipped P. D was acquitted of conspiracy because there was no agreement for 'concert of action', no agreement to 'cooperate'."
Coleridge, J. while summing up the case to the jury in R. v. Murphy [(1837) 173 ER 502 : 8 Car & P 297] (ER at p.
508) states:
"... I am bound to tell you, that although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have this common design and to pursue it by common means, and so to carry it into execution. This is not necessary, because in many cases of the most clearly established conspiracies there are no means of proving any such thing and neither law nor common sense requires that it should be proved. If you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of an act, and the other another part of the same act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, 'Had they this common design, and did they pursue it by these common means -- the design being unlawful?' "105
Neutral Citation No. ( 2025:HHC:2282-DB )
41. As noted above, the essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a situation, criminal conspiracy is established by proving such an agreement. Where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120-B read with the proviso to sub-section (2) of Section 120-A, then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under Section 120-B and the proof of any overt act by the accused or by any one of them would not be necessary. The provisions, in such a situation, do not require that each and every person who is a party to the conspiracy must do some overt act towards the fulfilment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established, the act would fall within the trappings of the provisions contained in Section 120-B. (See Suresh Chandra Bahri v. State of Bihar [1995 Supp (1) SCC 80 : 1995 SCC (Cri) 60 : AIR 1994 SC 2420] .)
42. Conspiracies are not hatched in the open, by their nature, they are secretly planned, they can be proved even by circumstantial evidence, the lack of direct evidence relating to conspiracy has no consequence. (See E.K. Chandrasenan v. State of Kerala [(1995) 2 SCC 99 : 1995 SCC (Cri) 329 : AIR 1995 SC 1066] .)
43. In Kehar Singh v. State (Delhi Admn.) [(1988) 3 SCC 609 :
1988 SCC (Cri) 711 : AIR 1988 SC 1883] (AIR at p. 1954) this Court observed : (SCC pp. 732-33, para 275) "275. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same.
The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also 106 Neutral Citation No. ( 2025:HHC:2282-DB ) more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the court must enquire whether the two persons are independently pursuing the same end or they have come together in the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy required some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of the two persons is necessary. Nor is it necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient."
"Conspiracy can be proved by circumstances and other materials." (See State of Bihar v. Paramhans Yadav [1986 Pat LJR 688 (HC)] .) "[T]o establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use."(emphasis in original) (See State of Maharashtra v. Som Nath Thapa [(1996) 4 SCC 659 : 1996 SCC (Cri) 820 : JT (1996) 4 SC 615] , SCC p. 668, para 24.)
44. The most important ingredient of the offence being the agreement between two or more persons to do an illegal act. 107
Neutral Citation No. ( 2025:HHC:2282-DB ) In a case where criminal conspiracy is alleged, the court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does. For the offence of conspiracy, some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is sufficient. A conspiracy is a continuing offence which continues to subsist till it is executed or rescinded or frustrated by choice of necessity. During its subsistence whenever any one of the conspirators does an act or series of acts, he would be held guilty under Section 120-B IPC.
45. In Ajay Aggarwal v. Union of India [(1993) 3 SCC 609: 1993 SCC (Cri) 961: JT (1993) 3 SC 203] it was held as follows : (SCC pp. 617-18, paras 8-10) "8. ... It is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. It is necessary that they should agree for the design or object of the conspiracy. Conspiracy is conceived as having three elements : (1) agreement; (2) between two or more persons by whom the agreement is effected; and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished. It is immaterial whether this is found in the ultimate objects. The common-law definition of 'criminal conspiracy' was stated first by Lord Denman in Jones case [R. v. Jones, (1832) 4 B & Ad 345: 110 ER 485] that an indictment for conspiracy must 'charge a conspiracy to do an unlawful act by unlawful means' and was elaborated by Willies, J. on behalf of the judges while referring the question to the House of Lords in Mulcahy v. R. [(1868) LR 3 HL 306] and the House of Lords in unanimous decision reiterated in Quinn v. Leathem [1901 AC 495: 85 LT 289 : (1900-03) All ER Rep 1 (HL)] :
108
Neutral Citation No. ( 2025:HHC:2282-DB ) 'A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more, to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful; punishable if for a criminal object, or for the use of criminal means.'
9. This Court in E.G. Barsay v. State of Bombay [AIR 1961 SC 1762 : (1961) 2 Cri LJ 828] held:
'The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under Section 43 of the Penal Code, 1860, an act would be illegal if it is an offence or if it is prohibited by law.' In Yash Pal Mittal v. State of Punjab [(1977) 4 SCC 540: 1978 SCC (Cri) 5] the rule was laid down as follows : (SCC p. 543, para 9) 'The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst 109 Neutral Citation No. ( 2025:HHC:2282-DB ) the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or overshooting by some of the conspirators.'
10. In Mohd. Usman Mohd. Hussain Maniyar v. State of Maharashtra [(1981) 2 SCC 443: 1981 SCC (Cri) 477] it was held that for an offence under Section 120-B IPC, the prosecution need not necessarily prove that the conspirators expressly agreed to do or cause to be done the illegal act, the agreement may be proved by necessary implication."
46. After referring to some judgments of the United States Supreme Court and of this Court in Yash Pal Mittal case [(1977) 4 SCC 540: 1978 SCC (Cri) 5] and Ajay Aggarwal case [(1993) 3 SCC 609: 1993 SCC (Cri) 961: JT (1993) 3 SC 203] the Court in State of Maharashtra v. Som Nath Thapa [(1996) 4 SCC 659: 1996 SCC (Cri) 820: JT (1996) 4 SC 615] (referred to in Kehar Singh case [(1988) 3 SCC 609: 1988 SCC (Cri) 711: AIR 1988 SC 1883] ) summarised the position of law and the requirements to establish the charge of conspiracy, as under : (SCC p. 668, para 24) "24. The aforesaid decisions, weighty as they are, lead us to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, the intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the 110 Neutral Citation No. ( 2025:HHC:2282-DB ) knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use." (emphasis in original) (Also see State of Kerala v. P. Sugathan [(2000) 8 SCC 203:
2000 SCC (Cri) 1474] and Devender Pal Singh v. State of N.C.T. of Delhi [(2002) 5 SCC 234: 2002 SCC (Cri) 978] .)
92. A similar view was taken in the Basheera Begam v. Mohd.
Ibrahim, (2020) 11 SCC 174 : (2020) 4 SCC (Cri) 220: 2020 SCC OnLine SC 121 wherein it was observed at page 187:
28. There can be no doubt that direct evidence of conspiracy is almost never available and that existence of conspiracy has necessarily to be inferred from the circumstances of the crime, as held by this Court in Vijay Shankar v. State of Haryana [Vijay Shankar v. State of Haryana, (2015) 12 SCC 644 : (2016) 1 SCC (Cri) 151], Praful Sudhakar Parab v. State of Maharashtra [Praful Sudhakar Parab v. State of Maharashtra, (2016) 12 SCC 783 : (2016) 4 SCC (Cri) 116] and Satish Nirankari v. State of Rajasthan [Satish Nirankari v. State of Rajasthan, (2017) 8 SCC 497 : (2017) 4 SCC (Cri) 24] cited by Mr Tulsi. It is however doubtful, whether the existence of conspiracy can at all be inferred from the circumstances in this case, considering the evidence adduced by the prosecution.
93. There was no evidence on record that Pradeep Gupta and Rajeev Kaushal were in touch with each other.
94. The learned Trial Court relied upon the fact that Pradeep Gupta disclosed the name of Anil and Anil disclosed the name of Rajeev during the investigation, which proved the conspiracy. According to the learned Trial Court, this amounted to a discovery of the fact. This finding cannot be sustained. It was laid 111 Neutral Citation No. ( 2025:HHC:2282-DB ) down by the Hon'ble Supreme Court in H.P. Admn. v. Om Prakash, (1972) 1 SCC 249: 1972 SCC (Cri) 88 that discovery of a witness does not amount to the fact discovered within the meaning of Section 27 of the Indian Evidence Act. It was observed:
"14. In the Full Bench Judgment of Seven Judges in Sukhan v. Crown [ILR (1929) 10 Lah 283] which was approved by the Privy Council in Pulukuri Kotayya case, Shadi Lal, C.J., as he then was speaking for the majority pointed out that the expression "fact" as defined by Section 3 of the Evidence Act includes not only the physical fact which can be perceived by the senses but also the psychological fact or mental condition of which any person is conscious and that it is in the former sense that the word used by the Legislature refers to material and not to a mental fact. It is clear therefore that what should be discovered is the material fact and the information that is admissible is that which has caused that discovery so as to connect the information and the fact with each other as the "cause and effect". That information which does not distinctly connect with the fact discovered or that portion of the information which merely explains the material thing discovered is not admissible under Section 27 and cannot be proved. As explained by this Court as well as by the Privy Council, normally Section 27 is brought into operation where a person in police custody produces from some place of concealment some object said to be connected with the crime of which the informant is the accused. The concealment of the fact which is not known to the police is what is discovered by the information and lends assurance that the information was true. No witness with whom some material fact, such as the weapon of murder, stolen property or other incriminating article is not hidden, sold or kept and which is unknown to the Police can be said to be discovered as a consequence of the information furnished by the accused. These examples however are only by way of illustration and are not exhaustive. What makes the 112 Neutral Citation No. ( 2025:HHC:2282-DB ) information leading to the discovery of the witness admissible is the discovery from him of the thing sold to him or hidden or kept with him which the police did not know until the information was furnished to them by the accused. A witness cannot be said to be discovered if nothing is to be found or recovered from him as a consequence of the information furnished by the accused and the information which disclosed the identity of the witness will not be admissible....."
95. It was laid down by the Hon'ble Supreme Court in Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547:
(2020) 2 SCC (Cri) 361: 2019 SCC OnLine SC 588 that a statement made by co-accused during the investigation is hit by Section 162 of Cr.P.C. and cannot be used as a piece of evidence. Further, the confession made by the co-accused is inadmissible because of Section 25 of the Indian Evidence Act. It was observed at page 568:
-
"44. Such a person viz. person who is named in the FIR, and therefore, the accused in the eye of the law, can indeed be questioned and the statement is taken by the police officer. A confession, that is made to a police officer, would be inadmissible having regard to Section 25 of the Evidence Act.
A confession, which is vitiated under Section 24 of the Evidence Act would also be inadmissible. A confession unless it fulfils the test laid down in Pakala Narayana Swami [Pakala Narayana Swami v. King Emperor, 1939 SCC OnLine PC 1:
(1938-39) 66 IA 66: AIR 1939 PC 47] and as accepted by this Court, may still be used as an admission under Section 21 of the Evidence Act. This, however, is subject to the bar of admissibility of a statement under Section 161 CrPC. Therefore, even if a statement contains admission, the 113 Neutral Citation No. ( 2025:HHC:2282-DB ) statement being one under Section 161, it would immediately attract the bar under Section 162 CrPC."
96. Therefore, the learned Trial Court erred in holding accused Pradeep Gupta guilty of the commission of an offence punishable under Section 302 of IPC read with Section 120B of IPC.
97. It was submitted that there are different versions of the prosecution case. The versions in the FIR, inquest report and the statement under Section 161 of Cr.P.C. cannot be reconciled. This submission cannot be accepted. It was laid down by the Hon'ble Supreme Court in Om Prakash Yadav v. Niranjan Kumar Upadhyay, 2024 SCC OnLine SC 3726 that a statement recorded under section 161 of CrPC cannot be used as a substantive piece of evidence. It was observed:
"27.......However, it is settled law that a statement recorded under Section 161 CrPC does not constitute substantive evidence and can only be utilized for the limited purpose of proving contradictions and/or omissions as envisaged under Section 145 of the Evidence Act, 1872. This has been laid down in a catena of decisions including in Parvat Singh v. State of Madhya Pradesh reported in (2020) 4 SCC 33 which observed as follows:
"13.1...However, as per the settled proposition of law a statement recorded under Section 161 CrPC is inadmissible in evidence and cannot be relied upon or used to convict the accused. As per the settled proposition of law, the statement recorded under Section 161 CrPC can be used only to prove the contradictions and/or omissions. Therefore, as such, the High Court has erred in relying upon the statement of PW 8 recorded under Section 161 CrPC while observing that 114 Neutral Citation No. ( 2025:HHC:2282-DB ) the appellants were having the lathis."(emphasis supplied)
78. The aforesaid position of law was reiterated in Birbal Nath v. State of Rajasthan reported in 2023 SCC OnLine SC 1396 which observed as thus:
"19. A statement given to police during an investigation under Section 161 cannot be read as an "evidence". It has a limited applicability in a Court of Law as prescribed under Section 162 of the Code of Criminal Procedure (Cr.P.C.).
20. No doubt statement given before police during an investigation under Section 161 are "previous statements"
under Section 145 of the Evidence Act and therefore can be used to cross examine a witness. But this is only for a limited purpose, to "contradict" such a witness. Even if the defence is successful in contradicting a witness, it would not always mean that the contradiction in her two statements would result in totally discrediting this witness. It is here that we feel that the learned judges of the High Court have gone wrong."(emphasis supplied)
98. Similarly, the inquest report is also not a substantive piece of evidence and is hit by Section 162 of Cr.P.C. It was laid down by the Hon'ble Supreme Court in Radha Mohan Singh v. State of U.P., (2006) 2 SCC 450 : (2006) 1 SCC (Cri) 661: 2006 SCC OnLine SC 103 that the inquest proceeding is not a substantive piece of evidence. It was observed at page 461:
13. The provision for holding of inquest is contained in Section 174 CrPC and the heading of the section is Police to enquire and report on suicide, etc. Sub-sections (1) and (2) thereof read as under:
"174. Police to enquire and report on suicide, etc.--(1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a 115 Neutral Citation No. ( 2025:HHC:2282-DB ) person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub- Divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.
(2) The report shall be signed by such police officer and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the District Magistrate or the Sub-Divisional Magistrate."
14. The language of the aforesaid statutory provision is plain and simple and there is no ambiguity therein. An investigation under Section 174 is limited in scope and is confined to the ascertainment of the apparent cause of death. It is concerned with discovering whether in a given case the death was accidental, suicidal homicidal or caused by an animal and in what manner or by what weapon or instrument the injuries on the body appear to have been inflicted. It is for this limited purpose that persons acquainted with the facts of the case are summoned and examined under Section 175. The details of the overt acts are not necessary to be recorded in the inquest report. The question regarding the details as to how the deceased was assaulted who assaulted him or under what circumstances he was assaulted or who are the witnesses of the assault is foreign to the ambit and scope of proceedings under Section 116 Neutral Citation No. ( 2025:HHC:2282-DB )
174. Neither in practice nor in law is it necessary for the person holding the inquest to mention all these details.
15. In Pedda Narayana v. State of A.P. [(1975) 4 SCC 153: 1975 SCC (Cri) 427: AIR 1975 SC 1252] it was held that the proceedings under Section 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so, what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under Section 174. Neither in practice nor in law, was it necessary for the police to mention those details in the inquest report. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. Their omission is not sufficient to put the prosecution out of Court. In Shakila Khader v. Nausheer Cama [(1975) 4 SCC 122: 1975 SCC (Cri) 379: AIR 1975 SC 1324] the contention raised that non-mention of a person's name in the inquest report would show that he was not an eyewitness of the incident was repelled on the ground that an inquest under Section 174 CrPC is concerned with establishing the cause of death and only evidence necessary to establish it need be brought out. The same view was taken in Eqbal Baig v. State of A.P. [(1986) 2 SCC 476: 1986 SCC (Cri) 232: AIR 1987 SC 923] that the non-mention of the name of an eyewitness in the inquest report could not be a ground to reject his testimony. Similarly, the absence of the name of the accused in the inquest report cannot lead to an inference that he was not present at the time of the commission of the offence as the inquest report is not the statement of a person wherein all the names (the accused and also the eyewitnesses) ought to have been mentioned. The view taken in Pedda Narayana v. State of A.P. [(1975) 4 SCC 153: 1975 SCC (Cri) 427: AIR 1975 SC 1252] was approved by a three- judge Bench in Khujji v. State of M.P. [(1991) 3 SCC 627: 1991 SCC (Cri) 916: AIR 1991 SC 1853] and it was held that the testimony of an eyewitness could not be discarded on the ground that their names did not figure in the inquest report prepared at the earliest point of time. The nature and 117 Neutral Citation No. ( 2025:HHC:2282-DB ) purpose of an inquest held under Section 174 CrPC was also explained in Amar Singh v. Balwinder Singh [(2003) 2 SCC 518:
2003 SCC (Cri) 641]. In the said case the High Court had observed that the fact that the details about the occurrence were not mentioned in the inquest report showed that the investigating officer was not sure of the facts when the inquest report was prepared and the said feature of the case carried weight in favour of the accused. After noticing the language used in Section 174 CrPC and earlier decisions of this Court it was ruled that the High Court was clearly in error in observing as aforesaid or drawing any inference against the prosecution. Thus, it is well settled by a catena of decisions of this Court that the purpose of holding an inquest is very limited viz. to ascertain as to whether a person has committed suicide or has been killed by another or by an animal or by machinery or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed an offence. There is absolutely no requirement in law of mentioning the details of the FIR, the names of the accused or the names of the eyewitnesses or the gist of their statements, nor is it required to be signed by any eyewitness. In Meharaj Singh v. State of U.P. [(1994) 5 SCC 188: 1994 SCC (Cri) 1391] the language used by the legislature in Section 174 CrPC was not taken note of, nor the earlier decisions of this Court were referred to and some sweeping observations have been made which are not supported by the statutory provision. We are, therefore, of the opinion that the observations made in paras 11 and 12 of the reports do not represent the correct statement of law and they are hereby overruled. The challenge laid to the prosecution case by Shri Jain on the basis of the alleged infirmity or omission in the inquest report has, therefore, no substance and cannot be accepted.
99. Therefore, it is impermissible to look into the FIR, statement and inquest report and to conclude that since there are contradictions, therefore, the prosecution case is doubtful.118
Neutral Citation No. ( 2025:HHC:2282-DB )
100. It was submitted that the mobile phones of Babita Jain and Ashwani Jain were not taken into possession, which is fatal to the prosecution case. This submission will also not help the defence. It was held in Karnel Singh vs. State 1995 (5) SCC 518 that the prosecution case cannot be doubted due to the defective investigation because Investigating Officer is not under the control of the complainant and the complainant cannot be penalized for the negligence of the Investigating Officer. It was held:
"4. We have very carefully scrutinized the evidence having regard to the fact that (PW 6) the Investigation Officer had not taken the care expected of him. He did not record the statements of the two witnesses nor did he refer to the attachment of the 'Chaddi' in his oral evidence. That was a very vital piece of evidence to which little or no attention was paid. If the seizure of that article was properly proved, the article with semen stains would have lent strong corroboration to the evidence of the prosecutrix. There is no doubt that the investigation was casual and defective . But despite these deficiencies both the Courts below have recorded a conviction. The question is: are they right?
5. Notwithstanding our unhappiness regarding the nature of the investigation, we have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In cases of defective investigation, the Court has to be circumspect in evaluating the evidence but it would not be right to acquitting an accused person solely on account of the defect; to do so would be tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective. Any Investigating Officer, in fairness to the prosecutrix as well as the accused, would have recorded the statements of the two witnesses and would have drawn up a proper seizure memo in regard to the 'Chaddi'. That is 119 Neutral Citation No. ( 2025:HHC:2282-DB ) the reason why we have said that the investigation was slipshod and defective.
6. We must admit that the defective investigation gave us some anxious moments and we were at first blush inclined to think that the accused was prejudiced. But on closer scrutiny, we have reason to think that the loopholes in the investigation were left to help the accused at the cost of the poor prosecutrix, a labourer. To acquit solely on that ground would be adding insult to injury."
101. This position was reiterated in Sudha Ranukanya Vs. State of A.P. 2017 (13) SCC 81 wherein it was held that the Court has to see the prosecution case without taking into consideration the defective investigation or lapses committed by the Investigating Officer. This position was reiterated in Sachin Kumar Singhraha vs. State of Madhya Pradesh 2019 (8) SCC 371, as under:
At this juncture, we would like to recall that it is well-settled that criminal justice should not become a casualty because of the minor mistakes committed by the Investigating Officer. We may hasten to add here itself that if the Investigation Officer suppresses the real incident by creating certain records to make a new case altogether, the Court would definitely strongly come against such action of the Investigation Officer. There cannot be any dispute that the benefit of the doubt arising out of major flaws in the investigation would create suspicion in the mind of the Court and consequently, such inefficient investigation would accrue to the benefit of the accused. As observed by this Court in the case of State of H.P. v. Lekh Raj, (2000) (1) SCC 247, a criminal trial cannot be equated with a mock scene from a stunt film. Such trial is conducted to ascertain the guilt or innocence of the accused arraigned and in arriving at a conclusion about the truth, the courts are required to adopt a rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. The courts are not 120 Neutral Citation No. ( 2025:HHC:2282-DB ) obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach to administering justice in a criminal trial.
102. This position was reiterated in Edakkandi Dineshan and Ors. vs. State of Kerela (06.01.2025 - SC): MANU/SC/0028/2025 wherein it was observed:
22. A cumulative reading of the entire evidence on record suggests that the investigation has not taken place in a proper and disciplined manner. There are various areas where a properly investigation could have strengthened its case. In the case of Paras Yadav and Ors. v. State of Bihar [ MANU/SC/0009/1999 : 1999:INSC:6: 1999 (2) SCC 126], the Apex Court observed as under:
Para 8 -..the lapse on the part of the Investigating Officer should not be taken in favour of the Accused, may be that such lapse is committed designedly or because of negligence. Hence, the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. For this purpose, it would be worthwhile to quote the following observations of this Court from the case of Ram Bihari Yadav v. State of Bihar and Ors. MANU/SC/0302/1998 : 1998:INSC:191 : J.T. (1998) 3 SC 290.
In such cases, the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice. Hence, the principle of law is crystal clear that on the account of the defective investigation, the benefit will not inure to the Accused persons on that ground alone. It is well 121 Neutral Citation No. ( 2025:HHC:2282-DB ) within the domain of the courts to consider the rest of the evidence which the prosecution has gathered such as statements of the eyewitnesses, medical reports etc. It has been a consistent stand of this Court that the Accused cannot claim acquittal on the grounds of faulty investigation done by the prosecuting agency. As the version of eyewitnesses in specifically naming the Appellants have been consistent throughout the trial, we find that there is enough corroboration to drive home the guilt of the Accused persons
103. Thus, the prosecution case cannot be doubted due to the defective investigation.
104. Further, the mobile phones would have corroborated the ocular version but when the ocular version is found to be worthy of credence, further corroboration from the mobile phone was not required.
105. It was submitted that there is no entry regarding the deposit of the laptop and recovery of ₹44,010/-. This submission will also not help the accused. The accused Pradeep Gupta has filed a revision claiming that the laptop and money were taken from him. Thus their recovery is not in dispute and the failure to make the entry is not fatal to the prosecution case.
106. The learned Trial Court had convicted the accused Pradeep Gupta, Rajeev Kaushal, Sunil Kumar @ Charna, Anil Kumar and Arun Kumar @ Manee of the commission of an offence punishable under Section 27 of the Arms Act. Section 27 of the 122 Neutral Citation No. ( 2025:HHC:2282-DB ) Arms Act punishes a person who uses any arm or ammunition in contravention of Section 5 or Prohibited Arm in violation of Section
5. Section 5 of the Arms Act provides for the licence for manufacture, and sale of arms and ammunition. Section 7 provides for the acquisition, possession, manufacture or sale of prohibited arms or prohibited ammunition. Only the accused Narinder Kumar was charged with selling the firearm who has since been acquitted. Other accused did not manufacture, sell, transfer, convert, repair, test or prove the firearm. It was laid down by the Hon'ble Supreme Court in Mahendra Singh v. State of W.B., (1974) 3 SCC 409: 1973 SCC (Cri) 974: 1973 SCC OnLine SC 158 that mere possession of a firearm is not sufficient to attract Section 27 of the Arms Act. It was observed at page 412:
"9. On the evidence on the record, therefore, it is not possible to hold that the existence of the arms in the almirah were without the appellant's knowledge or that his possession of the arms was unconscious. His conviction under Section 25(1)(a) of the Arms Act, 1959 is, therefore, fully justified. It is, however, difficult to sustain his conviction under Section 27 of the Arms Act. There is no evidence to support the offence under that section and indeed the trial court has convicted him without properly applying its mind to the ingredients of that offence. The judgment of the trial court seems to suggest that mere possession of the arms would also constitute an offence under Section 27 of the Arms Act. This view is clearly not correct. But since no separate sentence was imposed under Section 27, it is unnecessary to say anything more about it than that the conviction under Section 27 must be quashed."123
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107. It was laid down by the Hon'ble Supreme Court in Gyasuddin Khan v. State of Bihar, (2003) 12 SCC 516: 2005 SCC (Cri) 630: 2003 SCC OnLine SC 1238 that section 27 of Arms Act can only be attracted in the case of prohibited firearms. It was observed at page 528:
22. The conviction under Section 27 of the Arms Act cannot, however, be sustained. The gravamen of the second charge framed against the appellant is that he used the stun gun and SLR for the unlawful purpose of killing the three persons.
There is no evidence to the effect that the weapon used, namely, sten gun, answers the description of "prohibited arms" within the meaning of Section 2(1)(i) of the Arms Act. The report of the Sergeant Major to whom the weapons were sent was only to the effect that they were in working condition. There was no discussion whatsoever either by the trial court or by the High Court in regard to the offence under Section 27. We are not inclined at this stage to probe further and address the question whether the sten gun of Ram Pandey which was used in the commission of the crime is a prohibited arm within the meaning of Section 2(1)(i) though, in all likelihood, it may be. It is not appropriate to convict the appellant under Section 27(3) in which the extreme punishment of death is provided for. Hence the conviction of the appellant under Section 27 of the Arms Act, 1959 is hereby set aside.
108. In the present case, there is no evidence that the firearm recovered by the police falls within the definition of a prohibited firearm. Hence the provisions of Section 27 of the Arms Act will not apply to the present case.
109. Thus, the learned Trial Court erred in convicting the accused Pradeep Gupta, Rajeev Kaushal, Sunil Kumar, Anil and 124 Neutral Citation No. ( 2025:HHC:2282-DB ) Arun Kumar of the commission of an offence punishable under Section 27 of the Indian Arms Act.
110. It has been found above that there is no evidence of any conspiracy against Pradeep Gupta and Anil Kumar @ Sethu. Therefore, they were wrongly convicted with the aid of 120B of the Indian Penal Code.
111. The learned Trial Court had sentenced the accused to undergo rigorous imprisonment for life and to pay a fine of ₹25,000/- each for the commission of an offence punishable under Section 302 and Section 120B of IPC. This is the minimum sentence which can be imposed and no interference is required with it.
112. The learned Trial Court has sentenced accused Rajeev Kaushal to undergo rigorous imprisonment for three years for the commission of an offence punishable under Section 25 of the Arms Act. The accused had used the firearm without any licence as required under Section 3, hence he is to be held guilty of the commission of an offence punishable under Section 25(1B) of the Arms Act which can be punished for a term which shall not be less than one year but which may extend to 3 years. Keeping in view the fact that a firearm was used for murdering the deceased, the 125 Neutral Citation No. ( 2025:HHC:2282-DB ) sentence of three years is not excessive and no interference is required with it.
113. A revision has also been filed against the order passed by the learned Trial Court releasing the data to Babita Jain. It is undisputed that Pradeep Gupta was looking after the affairs of Jain Oil mills; therefore, his laptop would have the necessary data related to the sale, purchase and other transactions. This data was not owned by him but was held by him as an employee of Jain Oil Mills. Babita Jain is the wife of deceased Vinod Kumar Jain. She required the data for filing the Income Tax Return pursuant to a notice issued to her under Section 156 of the Income Tax Act. Thus, the learned Trial Court had rightly ordered the release of data to her.
114. Consequently, the appeal filed by Pradeep Gupta and Anil Kumar @ Sethu is allowed and they are acquitted of the charged offences. The appeals filed by Rajeev Kaushal, Sunil Kumar @ Charna and Arun Kumar @ Manee are partly allowed and they are acquitted of the commission of an offence punishable under Section 27 of the Arms Act.
115. The revision filed by Pradeep Gupta is ordered to be dismissed.
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116. In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023), the appellants Pradeep Gupta and Anil Kumar @ Sethu are directed to furnish bail bonds in the sum of ₹25,000/- each with one surety each in the like amount to the satisfaction of the learned Trial Court/Registrar (Judicial) within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the appellants/accused on receipt of notice thereof, shall appear before the Hon'ble Supreme Court.
117. 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.
(Vivek Singh Thakur) Judge (Rakesh Kainthla) Judge 10th January, 2025 (saurav pathania)