Himachal Pradesh High Court
Mandeep Singh vs State Of H.P on 10 September, 2025
2025:HHC:30881 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Revision Nos. 297 and 298 of 2014 Reserved on: 20.08.2025 Date of Decision: 10.09.2025
1. Cr. Revision No. 297 of 2014 .
Mandeep Singh ...Petitioner
Versus
State of H.P. ..Respondent
2. Cr. Revision No. 298 of 2014
Jasbir Singh ...Petitioner
Versus
State of H.P. r ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes For the Petitioner(s) : Ms. Salochna Rana, Advocate in both the petitions.
For the Respondent/ : Mr. Lokender Kutlehria, Additional
State Advocate General in both the
petitions.
Rakesh Kainthla, Judge
Since both revision petitions emanate out of a common judgment dated 30.07.2014, passed by learned Additional Sessions Judge (II), Una, District, Una, H.P.; hence, they are being taken up together for consideration and disposal by way of a common judgment.
2. The present revision petitions are directed against the judgment dated 30.07.2014 passed by learned Additional Sessions 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 10/09/2025 21:29:43 :::CIS 22025:HHC:30881 Judge (II), Una, District Una, H.P. (learned Appellate Court) vide which the judgment of conviction and order of sentence dated 23,08.2012 passed by learned Judicial Magistrate, First Class, Court .
No. IV, Una, H.P. (learned Trial Court) were upheld. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
3. Briefly stated, the facts giving rise to the present revisions are that the police presented a challan against the accused for the commission of an offence punishable under Section 382 read with Section 34 of the Indian Penal Code (IPC). It was asserted that the victim, Vijay Kumari, (PW-1) was a teacher in Jai Bharat Model School, Jhalera. She accompanied the students of the fifth class to Government Primary School, Rainsari for their examination. She was returning to her home on 09.03.2010. She met her neighbour, Kiran Jeet Kaur (PW-2), at Bus Stand Jhalera.
Both of them started walking together to their homes. When they were at some distance from their homes at about 2.05 p.m., a boy wearing a Jacket snatched her gold chain. He boarded the motorcycle, which was being driven by another boy wearing white clothes. The motorcycle sped away towards Jhalera Chowk. The weight of the gold chain was about three tolas. One piece of chain ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 3 2025:HHC:30881 weighing about one Tola was broken in the incident, which got entangled in the victim's clothes. The victim had purchased this gold chain for ₹25,000/- 5-6 years before the incident. Ram Pal .
(PW-6) also saw the incident and followed the motorcycle. The matter was reported to the police. An entry (Ext.PW-4/A) was recorded in the daily diary, and ASI Rajinder Kumar (PW-15) was sent to the spot for verification. He recorded the statement of the victim (Ext.PW-1/A), which was sent to the Police Station, where an F.I.R. (Ext.PW15/A) was registered. ASI Rajinder Kumar (PW-15) prepared a site plan (Ext.PW-15/B). He recorded the statements of witnesses as per their version. He got accused Jasbir Singh and Mandeep identified and obtained their custody from the Court.
Accused Jasbir Singh made a statement (Ext.PW-5/B) that he could show the place where he and co-accused Mandeep Singh had snatched the chain. He led the police to the spot. Memo (Ext.PW-
3/A) and site plan (Ext. PW-15/C) were prepared. Jasbir Singh made a statement (Ext.PW-5/A) on 22.03.2010, stating that he could show the shop where he had sold the chain to the Jeweller. .
He led the police party to Dalip Nagar, Gali No.9 in Mandi Govindgarh (Punjab). Memo (Ext.PW-7/A) and site plan (Ext.PW-
15/E) were prepared. Rajesh Kumar (PW-12) visited the Police ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 4 2025:HHC:30881 Station on 06.06.2010 and produced the chain (Ext.P-2), which was seized vide memo (Ext.PW-1/C). This chain was identified by informant Vijay Kumari (PW-1). The chain was put in a cloth .
parcel, and the parcel was sealed with seal 'T'. Seal impression (Ext.PW-1/D) was taken on a separate piece of cloth. The victim produced the portion of the chain, which was trapped in her clothes. It was seized vide memo (Ext.PW-1/B), and was handed over on Sapurdari to the victim. The photographs of the pieces of chain (Ext.PW-15/H) were taken. The chain was also identified by Sham Handa (PW-8), who had manufactured it. He issued the certificate (Ext.PW-8/A). Statements of remaining witnesses were recorded as per their version, and after the completion of the investigation, the challan was prepared and presented before the learned Trial Court.
4. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, they were charged with the commission of an offence punishable under Section 382 read with Section 34 of the IPC, to which they pleaded not guilty and claimed to be tried.
5. The prosecution examined eighteen witnesses to prove its case. Vijay Kumari (PW-1) is the victim. Kiranjeet Kaur (PW-2) ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 5 2025:HHC:30881 accompanied the victim. Bishan Dass (PW-3) is the witness to the disclosure statement; however, he did not support the prosecution's case. Constable Tilak Raj (PW-4) proved the entry in .
the daily diary. Rajesh Kumar (PW-5) is the witness to the recovery of the broken piece of chain and the disclosure statement made by accused Jasbir Singh. Ram Pal (PW-6) followed the motorcycle but could not apprehend the riders. HC Parshotam Lal (PW-7) is the witness to the identification of the shop. Sham Handa (PW-8) manufactured the chain. Mohan Lal (PW-9) is the witness to the recovery of a broken piece of chain. Jang Raj (PW-10) is the witness to the disclosure statement made by accused Mandeep Singh. Ram Parkash (PW-11) did not support the case. Rajesh Kumar (PW-5) is the jeweller from whom the recovery was made;
however, he did not support the prosecution's case. Amrik Singh (PW-13) is the witness to the disclosure statement and the subsequent identification. ASI Vir Singh (PW-14) signed the F.I.R.
Rajinder Kumar (PW-15) conducted the investigation. Surjit Kumar (PW-16) and Anil Kumar (PW-18) were wrongly summoned. Dr. Abira Basu (PW-17) was posted as a Magistrate at Una, in whose presence the Test Identification Parade was conducted.
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6. The accused, in their statements recorded under Section 313 of Cr.P.C., denied the prosecution's case in its entirety. They claimed that they were innocent. No defence was adduced by them.
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7. Learned Trial Court held that the accused were identified by the victim in the Test Identification Parade and in the Court. The recovery of the chain was effected pursuant to the disclosure statement made by the accused. The piece of chain left with the victim matched with chain produced by Rajesh Kumar.
These were identified by Sham Handa (PW-8), who had manufactured the chain. Both the accused were acting together because one of the accused snatched the chain, and the other waited for him on the motorcycle. Both of them sped away from the spot together. Therefore, they were convicted of the commission of offences punishable under Section 382 read with Section 34 of IPC and sentenced to undergo rigorous imprisonment of two years, pay a fine of ₹1000/-each and in default of payment of fine to further undergo simple imprisonment for two months.
8. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused preferred an appeal, which was decided by the learned Appellate Court. The learned Appellate Court concurred with the findings recorded by the learned Trial ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 7 2025:HHC:30881 Court that the accused were duly identified in the Court by the victim. The identification of the accused in the Test Identification Parade corroborated their identification in the Court. The piece of .
chain recovered from the jeweller mentioned by the accused matched the piece entangled in the victim's clothes. There was nothing inherently improbable in the testimonies of prosecution witnesses. The learned Trial Court had rightly convicted and sentenced the accused, hence, the appeal was dismissed.
9. Being aggrieved by the judgments and order passed by the learned Courts below, the accused have preferred the present revision petitions, asserting that the learned Courts below erred in appreciating the evidence. Kiranjeet Kaur (PW-2) and Ram Pal (PW-6) stated in their cross-examination that they could not identify the chain snatcher. Rajesh Kumar (PW-12), Jeweller, was declared hostile. He stated in the examination-in-chief that he had prepared the chain at the instance of the police. The Test Identification Parade was not proper; therefore, it was prayed that the present revision petitions be allowed and the judgments and order passed by the learned Courts below be set aside.
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10. I have heard Ms. Salochna Rana, learned counsel for the petitioner(s) and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent/State in both the petitions.
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11. Ms. Salochna Rana, learned counsel for the petitioner(s) in both the petitions, submitted that the petitioners are innocent and they were falsely implicated. There were various contradictions in the statements of prosecution witnesses, which made them highly suspect. The learned Courts below erred in relying upon the statements of prosecution witnesses. The identity of the chain was not proved. Kiranjeet Kaur (PW-2) and Ram Pal (PW-6) admitted in their cross-examination that they could not identify the chain snatcher. The ingredients of the offence punishable under Section 382 of IPC were not satisfied. Therefore, she prayed that the present revisions be allowed and the judgments and order passed by the learned Courts below be set aside. She submitted in the alternative that the sentence imposed by the learned Trial Court is excessive, and a lenient view be taken in the matter.
12. Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent/State in both the petitions, submitted that the victim identified the accused in the Court, and her ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 9 2025:HHC:30881 statement was corroborated by a previous identification made in the Test Identification Parade. A broken piece of chain was trapped in the victim's clothes, and it was duly matched with the chain that .
was recovered at the instance of the accused. This recovery also corroborated the victim's version. The mere fact that jeweller Rajesh Kumar (PW-12) had not supported the prosecution's case will not make the prosecution's case suspect when he was cross-
examined with reference to his previous testimony. Therefore, he prayed that the present revisions be dismissed.
13. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
14. It was laid down by the Hon'ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204: (2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that a revisional court is not an appellate court and it can only rectify the patent defect, errors of jurisdiction or the law. It was observed at page 207: -
"10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction like the appellate court, and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short "CrPC") vests jurisdiction to satisfy itself or himself as to the correctness, legality or propriety of any ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 10 2025:HHC:30881 finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error which is to be determined on the merits of individual .
cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings.
15. This position was reiterated in State of Gujarat v.
Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023 SCC OnLine SC 1294, wherein it was observed at page 695:
14. The power and jurisdiction of the Higher Court under Section 397CrPC, which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings.
15. It would be apposite to refer to the judgment of this Court in Amit Kapoor v. Ramesh Chander , (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687: (2013) 1 SCC (Cri) 986, where scope of Section 397 has been considered and succinctly explained as under:
(SCC p. 475, paras 12-13) "12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case.
The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well- founded error, and it may not be appropriate for the court to scrutinise the orders, which, upon the face of it, bear a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 11 2025:HHC:30881 with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored, or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits."
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16. It was held in Kishan Rao v. Shankargouda, (2018) 8 SCC 165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC OnLine SC 651 that it is impermissible for the High Court to reappreciate the evidence and come to its conclusions in the absence of any perversity. It was observed at page 169:
"12. This Court has time and again examined the scope of Sections 397/401 CrPC and the grounds for exercising the revisional jurisdiction by the High Court. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452: 1999 SCC (Cri) 275], while considering the scope of the revisional jurisdiction of the High Court, this Court has laid down the following: (SCC pp. 454-55, para 5)
5. ... In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting a miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court, nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise amount to a gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation in concluding that the High Court exceeded its jurisdiction in interfering with ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 12 2025:HHC:30881 the conviction of the respondent by reappreciating the oral evidence. ..."
13. Another judgment which has also been referred to and relied on by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, .
(2015) 3 SCC 123: (2015) 2 SCC (Cri) 19]. This Court held that the High Court, in the exercise of revisional jurisdiction, shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non-
consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. The following has been laid down in para 14: (SCC p. 135) "14. ... Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible.
The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with the decision in exercise of their revisional jurisdiction."
14. In the above case, also a conviction of the accused was recorded, and the High Court set aside [Dattatray Gulabrao Phalke v. Sanjaysinh Ramrao Chavan, 2013 SCC OnLine Bom 1753] the order of conviction by substituting its view. This Court set aside the High Court's order, holding that the High Court exceeded its jurisdiction in substituting its views, and that too without any legal basis.
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17. This position was reiterated in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ) 309: 2019 SCC OnLine SC 13, wherein it was observed at page 205:
.
"16. It is well settled that in the exercise of revisional jurisdiction under Section 482 of the Criminal Procedure Code, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to re-analyse and re-interpret the evidence on record.
17. As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GmbH, (2008) 14 SCC 457], it is a well-established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a court having jurisdiction, in the absence of a jurisdictional error. The answer to the first question is, therefore, in the negative."18
The present revision has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
19. Victim Vijay Kumari (PW-1) stated that she and Kiranjeet Kaur (PW-2) were walking together to their homes.
When they reached near their homes, a motorcycle carrying two boys came. One boy got off the motorcycle and came near them. He snatched her chain and boarded the motorcycle. The motorcycle sped away. Some portion of the chain was trapped in her clothes.
The chain was worth ₹20,000-25,000/-. She identified the accused. She produced the piece of chain handed over to her on Sapurdari. She also identified the piece of chain produced by the learned Assistant Public Prosecutor (APP) as her own. She ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 14 2025:HHC:30881 admitted in her cross-examination that the school children were with her. There was movement of pedestrians. She admitted that she had not seen the accused in village Jhalera. She had purchased .
the chain 5-6 years before the incident from Sham Handa (PW-8).
She used to wear the chain infrequently, and that's why its shine was not reduced. The weight of the chain, which got trapped in her clothes, was about nine grams. She sustained an abrasion but did not get herself medically examined. She had mentioned to the police that a piece of one tola remained with her, whereas a piece weighing two tolas was snatched. She was confronted with her previous statement, where this fact was not recorded. She admitted that the chain was not recovered in her presence. She had identified the accused in jail. Jail staff and one Advocate were present in the jail. She denied that the accused was shown to her before the identification. She denied that she had seen the accused for the first time in the Court. She admitted that the back of the motorcycle rider was toward her. She volunteered to say that the rider had turned towards her.
20. It was submitted that the victim's credibility has been shaken because she made material improvements, which made her testimony suspect. This submission is not acceptable. Learned ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 15 2025:HHC:30881 defence counsel did not ask the investigating officer about the statement with which the victim was confronted. Proviso to section 162 of Cr.P.C. permits the use of the statement recorded by the .
police to contradict a witness. It reads:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872) and when any part of such statement is so used, any part thereof may also be used in the re- examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
21.
Thus, the defence can use the statement to contradict a witness only if it 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."::: Downloaded on - 10/09/2025 21:29:43 :::CIS 16
2025:HHC:30881
22. It was laid down by the Hon'ble Supreme Court in Muthu Naicker and Others, etc. Versus State of T.N. (1978) 4 SCC 385, that if the witness affirms the previous statement, no proof is .
necessary, but if the witness denies or says that he did not remember the previous statement, the investigating officer should be asked about the same. It was observed: -
"52. This is the most objectionable manner of using the police statement, and we must record our emphatic disapproval of the same. The question should have been framed in a manner to point out that, from amongst those accused mentioned in examination-in-chief, there were some whose names were not mentioned in the police statement and if the witness affirms this, no further proof is necessary and if the witness denies or says that she does not remember, the investigation officer should have been questioned about it."
23. 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 ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 17 2025:HHC:30881 previous statement sought to be contradicted is placed before the witness for explanation, the previous statement cannot be used in evidence. In other words, drawing the attention of the witness to his previous statement sought to be contradicted and giving all opportunities to him for .
explanation are compulsory. If any authority is to be cited on this point, we may conveniently refer to the case of Pangi Jogi Naik v. State reported in AIR 1965 Orissa 205: (1965 (2) Cri LJ 661). Further, in the case of Tahsildar Singh v. State of U.P., reported in AIR 1959 SC 1012: (1959 Cri LJ 1231) it was also held that the statement not reduced to writing cannot be contradicted and, therefore, in order to show that the statement sought to be contradicted: was recorded by the police, it should be marked and exhibited. However, in the case at hand, there is nothing on the record to show that the previous statement of the witness was placed before him and that the witness was given the chance for explanation. Again, his previous statement was not marked and exhibited.
Therefore, his previous statement to the police cannot be used. Hence, his evidence that when he turned back, he saw the accused Badaruddin lowering the gun from his 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 ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 18 2025:HHC:30881 denies to have made such a statement before the police, the particular portions of the statement recorded should be provisionally marked for identification as B-1 to B-1, B-2 to B-2 etc. (any identification mark) and when the investigating officer who had actually recorded the .
statements in question comes into the witness box, he should be questioned as to whether these particular statements had been made to him during the investigation by the particular witness, and obviously after refreshing his memory from the case diary the investigating officer would make his answer in the affirmative. The answer of the Investigating Officer would prove the statements B-1 to B-1, B-2 to B-2, which are then exhibited as Ext. D. 1, Ext. D. 2, etc. (exhibition 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 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."
24. Andhra Pradesh High Court held in Shaik Subhani v.
State of A.P., 1999 SCC OnLine AP 413: (1999) 5 ALD 284: 2000 Cri LJ 321: (1999) 2 ALT (Cri) 208 that putting a suggestion to the witness and the witness denying the same does not amount to putting the contradiction to the witness. The attention of the witness has to be drawn to the previous statement, and if he denies it, the statement is to be proved by the investigating officer. It was observed at page 290: -
"24... As far as the 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 they ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 19 2025:HHC:30881 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 shown to him and if he confronted with such a statement and thereafter the said contradiction must be proved through the Investigation Officer. Then, it only amounts to putting the contradiction to the witness and getting it proved through the Investigation Officer."
25. 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 ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 20 2025:HHC:30881 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 doubt that unless the statement as per the 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 is. A witness may have stated in the statement under Section 161, Cr.P.C. that 'X murdered Y'. In the Court witness states 'Z murdered Y This is a contradiction. Defence Counsel or Court, and even prosecution if the witness is declared hostile, having resiled from a 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 ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 21 2025:HHC:30881 examination of the witness, a 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 the statement marked as 1, and confronted with the portion where it is recorded that 'X murdered Y'. In this manner, by way of confrontation, contradiction is brought on record. Later, when the Investigating Officer is examined, the prosecution or defence may prove the statement, after the Investigating Officer testifies that the statement assigned mark was correctly recorded by him, at that stage statement will be exhibited by the Court. Then the 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 material? 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 to 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 ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 22 2025:HHC:30881 or her attention must be drawn to the portion of the previous statement (in the present case statement under Section 161, Cr.P.C)."
26. Thus, the submission that the victim's credibility has .
been shaken by confronting him with the previous statement is not acceptable.
27. There is nothing in the victim's cross-examination to show that she was making a false statement. No motive/enmity was suggested to her. She identified the accused in the Court, and the identification made by her is duly corroborated by the Test Identification Parade.
28. Dr. Abira Basu (PW-17) was posted as Judicial Magistrate, First Class, Court No. IV, Una, District Una, in whose presence the Test Identification Parade was conducted. She stated that she had visited the jail with Ram Pal (PW-6) and Vijay Kumari (PW-1). She obtained the participant's consent before conducting the test identification parade. The accused were identified by the victim Vijay Kumari and Ram Pal. This was duly recorded in the report (Ext.PW-17/D). She admitted in her cross-examination that she had not mentioned the height, colour, etc. in her report. She volunteered to say that she had ensured that all the persons were of similar height and colour. She admitted that all the participants were accused in some cases. She admitted that identifiers were ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 23 2025:HHC:30881 present outside the jail with the Investigating Officer before her arrival.
29. She is the Judicial Officer and has no reason to support .
any person. Her statement and report (Ext.PW-17/D) shows that the Test Identification Parade was conducted in her presence, in which Vijay Kumari (PW-1) identified both the accused and Ram Pal (PW-6) identified accused Jasbir Singh.
30. It was suggested to the victim that the accused were shown to her. Dr. Abira Basu (PW-17) admitted that the identifiers were standing outstanding the jail with the investigating officer, suggesting that the Investigating Officer somehow told them about the features of the accused; however, the accused did not claim in their statements recorded under Section 313 of Cr.P.C. that the victim or Ram Pal had seen them before the Test Identification Parade. There is no other evidence of the fact that the accused were shown to the victim or Ram Pal. Therefore, the result of the Test Identification Parade cannot be doubted because the accused might have been shown to the victim or Ram Pal.
31. Accused Jasbir Singh made a disclosure statement (Ext.PW-5/B) on 20.3.2010 that he could show the place where he and the co-accused had snatched the chain. He led the police to ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 24 2025:HHC:30881 the spot. The police prepared the memo of identification (Ext.PW-3/A) and spot map (Ext.PW15/C). This spot map (Ext.PW15/C) is identical to the spot map (Ext.PW-15/B) prepared .
on 09.3.2010 at the victim's instance. The place of the incident was disclosed to the police by the victim, and the police had not discovered it pursuant to the disclosure statement made by accused Jasbir. No material object was recovered pursuant to the disclosure statement made by accused Jasbir. It was laid down by the Hon'ble Supreme Court in Thimma and Thimma Raju v. State of Mysore, (1970) 2 SCC 105: 1970 SCC (Cri) 320 that where the police had already discovered some fact from other sources, it cannot be re-discovered at the instance of the accused. It was observed at page 112: -
"10. Reliance on behalf of the prosecution was also placed on the information given by the appellant, which led to the discovery of the dead body and other articles found at the spot. It was contended that the information received from him related distinctly to the facts discovered and, therefore, the statement conveying the information was admissible in evidence under Section 27 of the Indian Evidence Act. This information, it was argued, also lends support to the appellant's guilt. It appears to us that when PW 4 was suspected of complicity in this offence, he would, in all probability, have disclosed to the police the existence of the dead body and the other articles at the place where they were actually found. Once a fact is discovered from other sources, there can be no fresh discovery even if relevant information is extracted from the accused, and courts have to be watchful against the ingenuity of the investigating officer in this respect ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 25 2025:HHC:30881 so that the protection afforded by the wholesome provisions of Sections 25 and 26 of the Indian Evidence Act is not whittled down by mere manipulation of the record of case diary. It would, in the circumstances, be somewhat unsafe to rely on this information to prove the appellant's guilt. We are .
accordingly disinclined to take into consideration this statement." (Emphasis supplied)
32. It was laid down by the Hon'ble Supreme Court in Vijender v. State of Delhi, (1997) 6 SCC 171: 1997 SCC (Cri) 857 that where the fact was within the knowledge of the police, it cannot be discovered at the instance of the accused. It was observed at page 179: -
"17. Another elementary statutory breach which we notice in recording the evidence of the above witnesses is that of Section 27 of the Evidence Act. Evidence was led through the above three police witnesses that, in consequence of information received from the three appellants on 30-6- 1992, they discovered the place where the dead body of Khurshid was thrown. As already noticed, the dead body of Khurshid was recovered on 27-6-1992, and therefore, the question of the discovery of the place where it was thrown thereafter could not arise. Under Section 27 of the Evidence Act, if information given by the accused leads to the discovery of a fact which is the direct outcome of such information, then only it would be evidence, but when the fact has already been discovered, as in the instant case, evidence could not be led in respect thereof."
33. A similar view was taken in Allarakha Habib Memon Etc. v. State of Gujarat, 2024 SCC OnLine SC 1910, wherein it was observed:
"41. We find that these so-called confessions are ex facie inadmissible in evidence for the simple reason that the accused persons were presented at the hospital by the police ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 26 2025:HHC:30881 officers after having been arrested in the present case. As such, the notings made by the Medical Officer, Dr. Arvindbhai (PW-2), in the injury reports of Mohmedfaruk @ Palak and Amin @ Lalo would be clearly hit by Section 26 of the Indian Evidence Act, 1872 (hereinafter being referred to .
as 'Evidence Act'). As a consequence, we are not inclined to accept the said admissions of the accused as incriminating pieces of evidence relevant under Section 21 of the Evidence Act. The circumstance regarding the identification of the place of the incident at the instance of the accused is also inadmissible because the crime scene was already known to the police, and no new fact was discovered in pursuance of the disclosure statements." (Emphasis supplied)
34. Therefore, no advantage can be derived from the
35. Accused r Jasbir to disclosure of statement (Ext.PW5/B) made by accused Jasbir Singh.
Singh made another disclosure statement (Ext.PW-5/A) stating that he could show the shop where he had sold the chain. He led the police to Mandi Govindgarh and pointed out a shop located in Gali No. 9, Dalip Nagar, where he had sold the chain; however, the shop was closed. Memo of identification (Ext. PW-7/A) and spot map (Ext.PW-15/E) were prepared.
36. Jang Raj (PW-10) stated that accused Jasbir Singh made a statement on 22.03.2010 that he could get the chain recovered, which was sold by him to a jeweller. He, one police official, and Jasbir Singh signed the memo. He stated in his cross-examination that accused Jasbir Singh was in the room of Inspector Rajinder Kumar (PW-15). Amrik Singh (PW-13) and 1-2 other persons were ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 27 2025:HHC:30881 present in the Police Station. Amrik Singh (PW-13) and another person were cited as witnesses. He admitted that he was posted as a Home Guard. He did not know how long accused Jasbir Singh was .
interrogated because he had visited the Police Station to enquire about his duties. The statement was made in Punjabi. He did not accompany the police at the time of recovery.
37. His testimony is corroborated by Rajesh Kumar (PW-12), who stated that accused Jasbir Singh made a statement on 22.03.2010 that he had sold the gold chain to a Jeweller and he could get it recovered. Memo (Ext.PW-5/A) was prepared. He stated in his cross-examination that he was not aware of the date of the arrest of the accused. The statement was recorded in the Police Station. Jang Raj (PW-10) and other police officials were present at that time. The Investigating Officer had interrogated the accused for 15-20 minutes. The accused was speaking a mixture of Hindi and Punjabi. He admitted that the Chain had no identification mark.
38. Nothing was suggested to these witnesses that they had any motive to depose against the accused. There is nothing inherently improbable in their testimonies, and the learned Courts below had rightly accepted them.
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39. It was submitted that the police had not associated any independent witness. HC Rajesh Kumar (PW-5) is the police official, whereas Jang Raj (PW-10) is an official of Home Guard .
posted with the police. This submission will not assist the accused.
It was laid down by the Hon'ble Supreme Court in State, Govt. of NCT of Delhi v. Sunil, (2001) 1 SCC 652: 2001 SCC (Cri) 248: 2000 SCC OnLine SC 1667 that the statement under Section 27 of the Indian Evidence Act is not required to be witnessed by two independent witnesses. It was observed at page 661:
"19. In this context, we may point out that there is no requirement, either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain the signature of independent witnesses on the record in which the statement of an accused is written. The legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code. Section 100(5) of the Code requires that such a search shall be made in their presence and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person, "and signed by such witnesses". It must be remembered that a search is made to find out a thing or document about which the searching officer has no prior idea as to where the thing or document is kept. He prowls for it either on reasonable suspicion or on some guesswork that it could possibly be ferreted out in such prowling. It is a stark reality that during searches, the team which conducts the search would have to meddle with lots of other articles and documents also, and in such a process, many such articles or documents are likely to be displaced or even strewn helter-skelter. The legislative ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 29 2025:HHC:30881 idea in insisting on such searches to be made in the presence of two independent inhabitants of the locality is to ensure the safety of all such articles meddled with and to protect the rights of the persons entitled thereto. But, recovery of an object pursuant to the information supplied by an accused in .
custody is different from the searching endeavour envisaged in Chapter VII of the Code. This Court has indicated the difference between the two processes in the Transport Commr., A.P., Hyderabad v. S. Sardar Ali [(1983) 4 SCC 245:
1983 SCC (Cri) 827: AIR 1983 SC 1225]. The following observations of Chinnappa Reddy, J., can be used to support the said legal proposition (SCC p. 254, para 8) "Section 100 of the Criminal Procedure Code, to which reference was made by the counsel, deals with searches and not seizures. In the very nature of things, when property is seized and not recovered during a search, it is not possible to comply with the provisions of sub- sections (4) and (5) of Section 100 of the Criminal Procedure Code. In the case of a seizure under the Motor Vehicles Act, there is no provision for preparing a list of the things seized in the course of the seizure for the obvious reason that all those things are seized not separately but as part of the vehicle itself."
20. Hence, it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused, the document prepared by the investigating officer contemporaneous with such recovery must necessarily be attested by the independent witnesses. Of course, if any such statement leads to the recovery of any article, it is open to the investigating officer to take the signature of any person present at that time on the document prepared for such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the investigating officer who was deposed to the fact of recovery based on the statement elicited from the accused on its own worth.
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21. We feel that it is an archaic notion that the actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period, and policemen also knew about it. Its hangover persisted during post-independent years, but it is .
time now to start placing at least initial trust in the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence, when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused, it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross- examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police, the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that the police did not collect signatures of independent persons in the documents made contemporaneous with such actions.
22. In this case, the mere absence of an independent witness when PW 17 recorded the statement of A-2 Ramesh, and the knickers were recovered pursuant to the said statement, is not sufficient ground to discard the evidence under Section 27 of the Evidence Act."
40. This position was reiterated in Praveen Kumar v. State of Karnataka, (2003) 12 SCC 199: 2003 SCC OnLine SC 1139, wherein it was observed at page 210:
::: Downloaded on - 10/09/2025 21:29:43 :::CIS 312025:HHC:30881 "21. Section 27 does not lay down that the statement made to a police officer should always be in the presence of independent witnesses. Normally, in cases where the evidence led by the prosecution as to a fact depends solely on the police witnesses, the courts seek corroboration as a .
matter of caution and not as a matter of rule. Thus, it is only a rule of prudence which makes the court to seek corroboration from an independent source in such cases while assessing the evidence of the police. But in cases where the court is satisfied that the evidence of the police can be independently relied upon, then in such cases, there is no prohibition in law that the same cannot be accepted without independent corroboration. In the instant case, nothing is brought on record to show why the evidence of PW 33 IO should be disbelieved in regard to the statement made by the accused as per Ext. P-35. Therefore, the argument that the statement of the appellant as per Ext. P- 35 should be rejected because the same is not made in the presence of an independent witness has to be rejected."
41. A similar view was taken in Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1: (2017) 2 SCC (Cri) 673: 2017 SCC OnLine SC 533, wherein it was observed at page 228:
"448. While the prosecution has been able to prove the recoveries made at the behest of the accused, the defence counsel repeatedly argued in favour of discarding the recoveries made on the ground that no independent witnesses were examined while effecting such recoveries and preparing seizure memos.
449. The above contention of the defence counsel urges one to look into the specifics of Section 27 of the Evidence Act. As a matter of fact, the need of examining independent witnesses while making recoveries pursuant to the disclosure statement of the accused is a rule of caution evolved by the Judiciary, which aims at protecting the rights of the accused by ensuring transparency and credibility in the investigation of a criminal case. In the present case, PW 80 SI Pratibha Sharma has deposed in her cross-::: Downloaded on - 10/09/2025 21:29:43 :::CIS 32
2025:HHC:30881 examination that no independent person had agreed to become a witness, and in the light of such a statement, there is no reason for the courts to doubt the version of the police and the recoveries made.
450. When recovery is made pursuant to the statement of .
the accused, a seizure memo prepared by the investigating officer need not mandatorily be attested by independent witnesses. In State (Govt. of NCT of Delhi) v. Sunil [State (Govt. of NCT of Delhi) v. Sunil, (2001) 1 SCC 652: 2001 SCC (Cri) 248], it was held that non-attestation of seizure memo by independent witnesses cannot be a ground to disbelieve recovery of articles' list consequent upon the statement of the accused. It was further held that there was no requirement, either under Section 27 of the Evidence Act or under Section 161 CrPC, to obtain signatures of independent witnesses. If the version of the police is not shown to be unreliable, there is no reason to doubt the version of the police regarding arrest and contents of the seizure memos."
42. Therefore, the disclosure statement cannot be doubted because no independent witness was associated by the police.
43. It was submitted that there are contradictions in the statements of the witnesses. Jang Raj (PW-10) stated that the accused was speaking in Punjabi, whereas Rajesh Kumar (PW-5) stated that the accused was speaking in a mixture of Punjabi and Hindi. This is an insignificant contradiction that is bound to come with time, and cannot be used to discard the prosecution's case.
44. HC Parshotam (PW-7) stated that accused Jasbir Singh pointed out the shop where he had sold the chain; however, the shop was closed. The police prepared a memo of identification and a spot map. He stated in his cross-examination that he travelled in ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 33 2025:HHC:30881 a vehicle bearing registration No. HP20C-7286, which was being driven by Constable Rajinder Kumar (PW-15). He did not remember the time of his departure. He admitted that an entry .
regarding the departure and arrival of police officials is recorded.
He, Constable Naveen, Investigating Officer Rajinder Kumar (PW-15), went to the shop. He was not aware of the shop of the Jeweller because there were no signboards. The Investigating Officer made enquiries from the local persons, but did not associate them.
45. Rajesh Kumar (PW-12) is the owner of the jewellery shop. He stated that the police had visited Mandi Govindgarh, but he was not present in his shop. He visited the Police Station. The police inquired about the chain; however, he stated that he had no chain. The police threatened to implicate him. He prepared a piece of chain and handed it over to the police officials. He was permitted to be cross-examined. He denied that the accused had sold a chain to him, which was handed over by him to the police.
He denied his previous statement recorded by the police. He stated in his cross-examination by the defence that he had handed over the chain at the instance of the police.
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46. The testimony of this witness shows that he had handed over the piece of chain to the police. He claimed that this piece was prepared by him and was not sold to him by the accused.
.
The learned Courts below had rightly held that this part of his testimony was not reliable. First, he has been contradicted with reference to his earlier statement recorded by the police in which he had stated that the piece of chain was sold to him by the accused. Thus, he had made two inconsistent versions, one before the Court and another before the police. It was laid down by the Hon'ble Supreme Court in Sat Paul v. Delhi Admn., (1976) 1 SCC 727 that where a witness has been thoroughly discredited by confronting him with the previous statement, his statement cannot be relied upon. However, when he is confronted with some portions of the previous statement, his credibility is shaken to that extent, and the rest of the statement can be relied upon. It was observed:
"52. From the above conspectus, it emerges clearly that even in a criminal prosecution, when a witness is cross-examined and contradicted with the leave of the court by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether, as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed regarding a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 35 2025:HHC:30881 completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony .
of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto."
47. This Court also took a similar view in Ian Stilman versus.
State 2002(2) ShimLC 16 wherein it was observed:
"12. It is now well settled that when a witness who has been called by the prosecution is permitted to be cross-examined on behalf of the prosecution, such a witness loses credibility and cannot be relied upon by the defence. We find support for the view we have taken from the various authorities of the Apex Court. In Jagir Singh v. The State (Delhi Administration), AIR 1975 Supreme Court 1400, the Apex Court observed:
"It is now well settled that when a witness, who has been called by the prosecution, is permitted to be cross-examined on behalf of the prosecution, the result of that course being adopted is to discredit this witness altogether and not merely to get rid of a part of his testimony".
48. Therefore, the part of his statement which has been contradicted by his previous statement recorded by the police cannot be relied upon. However, the part of his statement which is even admitted in the cross-examination by the defence that he had produced a part of the chain has to be accepted as correct. It was laid down by the Hon'ble Supreme Court in Selvamani v. State, 2024 SCC OnLine SC 837, that the testimony of a hostile witness is not effaced from the record and the version which is as per the ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 36 2025:HHC:30881 prosecution evidence or the defence version can be accepted if corroborated by other evidence on record. It was observed:
"9. A 3-Judge Bench of this Court in the case of Khujji @ Surendra Tiwari v. State of Madhya Pradesh (1991) 3 SCC 627:
.
1991 INSC 153, relying on the judgments of this Court in the cases of Bhagwan Singh v. State of Haryana (1976) 1 SCC 389: 1975 INSC 306, Sri Rabindra Kuamr Dey v. State of Orissa (1976) 4 SCC 233: 1976 INSC 204, Syad Akbar v. State of Karnataka (1980) 1 SCC 30: 1979 INSC 126, has held that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. It was further held that the evidence of such witnesses cannot be treated as effaced or washed off the record altogether, but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.
10. This Court, in the case of C. Muniappan v. State of Tamil Nadu (2010) 9 SCC 567: 2010 INSC 553, has observed thus:
"81. It is a settled legal proposition that (Khujji case, SCC p. 635, para 6) '6. ... the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether, but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.'
82. In State of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360], this Court held that (at SCC p. 363, para 7) evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543], Gagan Kanojia v. State of Punjab, (2006) 13 SCC 516], Radha Mohan Singh v. State of U.P., (2006) 2 SCC 450], Sarvesh ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 37 2025:HHC:30881 Narain Shukla v. Daroga Singh, (2007) 13 SCC 360] and Subbu Singh v. State, (2009) 6 SCC 462.
83. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof, which are admissible .
in law, can be used by the prosecution or the defence."
49. The two parts of the chain were produced before Sham Handa (PW-8), who had manufactured the chain. He stated that police produced one piece of chain measuring 13 inches and weighing 9.6 grams, and Rajesh Kumar (PW-12) produced one chain, whose length was 14 ½ inches, weighing about 10 grams for comparison. He compared both the pieces of chain and found that they formed one chain. This chain was manufactured by him at the instance of Vijay Kumari (PW-1), 5-6 years before the incident. He issued the certificate (Ext.PW-8/A) to this effect. He stated in his cross-examination that the Gold loses its shine after 4-5 years. He admitted that the jewellery gathers dust with time, and the chain (Ext.P-2) did not have any dirt. He volunteered to say that it was worn out. He had not handed any bill to the customer or the police.
He volunteered to say that the customer had produced the old gold and got prepared a new chain. He admitted that he had not put any specific identification on the chain. He admitted that he had issued the certificate at the request of the police, but volunteered to say that the certificate was issued after comparing the two pieces.
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50. There is nothing in his cross-examination to say that he was making a false statement. He is the Jeweller who had manufactured the chain. Thus, he was the best person to determine .
whether two pieces of chain formed one chain or not. He has provided a valid explanation for not issuing the bill, i.e. that the chain was prepared from the old gold provided by the customer.
His testimony established that the chain produced by Rajesh Kumar (PW-12) was manufactured by him and formed part of the victim's chain. His testimony falsifies the statement of Rajesh Kumar (PW-12) that the chain was prepared by him.
51. The disclosure statement made by the accused, Jasbir Singh, led to the discovery of the shop being run by Rajesh Kumar (PW-12). He produced part of the chain, which belonged to the victim. It was laid down by the Hon'ble Supreme Court in Mehboob Ali v. State of Rajasthan, (2016) 14 SCC 640: (2016) 4 SCC (Cri) 412:
2015 SCC OnLine SC 1043, that the information given by the accused, leading to the discovery of a person from whom forged currency notes were recovered, is admissible under Section 27 of the Indian Evidence Act. It was observed at page 646: -
"15. It is apparent that on the basis of the information furnished by accused Mehboob Ali and Firoz, and other accused, Anju Ali was arrested. The fact that Anju Ali was dealing with forged currency notes was not known to the ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 39 2025:HHC:30881 knowledge of the police. The statements of both the accused have led to the discovery of the fact and arrest of the co- accused, not known to the police. They identified him, and ultimately, statements have led to unearthing the racket of the use of fake currency notes. Thus, the information .
furnished by the aforesaid accused persons vide information memos is clearly admissible, which has led to the identification and arrest of accused Anju Ali, and as already stated, from possession of Anju Ali's fake currency notes had been recovered. As per information furnished by the accused Mehboob and Firoz vide memos Exts. P-41 and P-42, the fact has been discovered by the police as to the involvement of the accused Anju Ali, which was not known to the knowledge of the police. The police were not aware of the accused, Anju Ali, as well as the fact that he was dealing with fake currency notes, which were recovered from him. Thus, the statement of the aforesaid accused Mehboob and Firoz is clearly saved by Section 27 of the Evidence Act. The embargo put by Section 27 of the Evidence Act was clearly lifted in the instant case. The statement of the accused persons has led to the discovery of facts proving complicity of the other accused persons, and the entire chain of circumstances clearly makes out that the accused acted in conspiracy, as found by the trial court as well as the High Court. xxxxxxx
20. Considering the aforesaid dictums, it is apparent that there was a discovery of a fact as per the statement of Mehmood Ali and Mohd. Firoz. Co-accused was nabbed on the basis of an identification made by the accused Mehboob and Firoz. That he was dealing with fake currency notes came to the knowledge of the police through them. Recovery of forged currency notes was also made from Anju Ali. Thus, the aforesaid accused had the knowledge about co-accused Anju Ali, who was nabbed at their instance and on the basis of their identification. These facts were not to the knowledge of the police, hence the statements of the accused persons leading to the discovery of the fact are clearly admissible as per the provisions contained in Section 27 of the Evidence Act, which carves out an exception to the general provisions about inadmissibility of confession made under police ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 40 2025:HHC:30881 custody contained in Sections 25 and 26 of the Evidence Act."
52. In the present case, the statement made by the accused led to the discovery of Rajesh Kumar (PW-12), who produced the .
chain. Hence, this evidence would be admissible against the accused.
53. Therefore, the testimony of the victim that her chain was snatched by the accused is duly corroborated by the recovery of part of the chain at the instance of the accused. Further, corroboration is provided by Kiranjeet Kaur (PW-2), who stated that she and Vijay Kumari (PW-1) were walking to their homes.
One boy was sitting on the bike, and another came near them. He snatched the chain of Vijay Kumari (PW-1) and both of them sped away from the spot. A part of the chain remained trapped in the clothes of Vijay Kumari (PW-1). She stated in her cross-
examination that she had no personal acquaintance with the accused. She could not tell who had snatched the chain. Her house was located at some distance from the spot. She admitted that the motorcycle was moving away from her. She volunteered to say that the rider was looking over his shoulder.
54. Her statement proves the incident of chain snatching.
She did not identify any person in the Court and admitted that she ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 41 2025:HHC:30881 had not seen the person snatching the chain. This shows that she is a credible witness and has no axe to grind against the accused;
otherwise, she would have named the accused as the person who .
had snatched the chain of the victim. Therefore, both the learned Courts below had rightly relied upon her testimony.
55. Ram Pal (PW-6) stated that he was going to his shop on 09.03.2010 at about 2-2.15 p.m. One boy snatched the chain and boarded the motorcycle. The motorcycle sped away from the spot.
He followed the motorcycle on a scooter, but he could not catch up to it. He identified the accused, Jasbir, as the person who had snatched the chain. He stated in his cross-examination that his shop was located at a distance of half a kilometre from the place of the incident. There was a Primary School on the way. He was riding the scooter. He admitted that many people were walking on the road, and there was movement of traffic. He had not seen any person snatching the chain. He followed a motorcycle to the bus stand. He had identified the accused amongst twenty people. He denied that the police had shown him the accused before the identification. 20-25 people had gathered on the spot. He denied that he was making a false statement regarding the identification.
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56. Statement of this witness regarding the identity of the accused is duly corroborated by the identification made in the previous Test Identification Parade. A valid explanation has been .
provided regarding the identification that the motorcycle rider was looking backwards, which is also natural because a person escaping from the spot would take care to ensure that he is not being followed.
57. The testimony of this witness shows the involvement of the accused, Jasbir Singh, as a chain snatcher. The other accused, Mandeep, was riding the motorcycle and learned Courts below had rightly held that he was acting in concert with the accused Jasbir. It was laid down by the Judicial Committee of the Privy Council about a Century Ago in Barendra Kumar Ghosh versus Emperor, AIR 1925 (PC) 1, that in crimes as in other things, "they also serve who only stand and wait." It was observed:
"[23] As soon, however, as the other sections of this part of the Code are looked at, it becomes plain that the words of Section 31 are not to be eviscerated by reading them in this exceedingly limited sense. By Section 33, a criminal act in Section 34 includes a series of acts and, further, "act"
includes omission to act, for example, an omission to interfere to prevent a murder being done before one's very eyes. By Section 37, when any offence is committed by means of several acts, whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if the appellant did nothing as he stood ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 43 2025:HHC:30881 outside the door, it is to be remembered that in crimes as in other things, "they also serve who only stand and wait." By Section 38, when several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act. Read together, these .
sections are reasonably plain. Section 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, for "that act" and "the act" in the latter part of the section must include the whole action covered by "a criminal act" in the first part because they refer to it. Section 37 provides that when several acts are done so as to result together in the commission of an offence, the doing of any one of them, with an intention to cooperate in the offence (which may not be the same as an intention common to all), makes the actor liable to be punished for the commission of the offence. Section 38 provides for different punishments for different offences as an alternative to one punishment for one offence, whether the persons engaged or concerned in the commission of a criminal act are set in motion by one intention or by the other."
58. Hence, the learned Trial Court held him liable by virtue of Section 34 of the IPC.
59. Learned Trial Court convicted the accused of the commission of an offence punishable under Section 382 of the IPC.
Section 382 of IPC requires the preparation to cause death, hurt, or restraint or fear of death, hurt, or restraint while committing the theft. In the present case, there is no evidence of any preparation, and it was a simple case of chain snatching, that is, committing the theft and causing hurt while committing the theft. It was laid down in Hushrut Sheikh (1866) 5 WR (Cr) 85 that causing hurt while ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 44 2025:HHC:30881 committing theft does not fall within the definition of Section 382 of IPC.
60. Section 382 of IPC is an aggravated form of Section 379 .
of IPC and deals with the situation when theft is committed after making preparations; hence, all the ingredients of Section 379 of IPC are included in Section 382 of IPC. Since it has been proved that the accused had taken away the chain belonging to the victim dishonestly to deprive her of the same and cause wrongful gain to themselves; therefore, the ingredients of Section 379 of IPC were duly satisfied. Section 222 of the CrPC provides that when a person is charged with a major offence, he can be convicted of a minor offence if there is no prejudice to him. It was laid down in State of Kerala v. Rajappan Nair, 1987 SCC OnLine Ker 236 : (1987) 1 KLT 584 :
(1987) 2 AP LJ (DNC) 30: 1987 Cri LJ 1257 that an accused charged with Section 394 of IPC can be convicted of the commission of an offence punishable under Section 379 of IPC because Section 394 is an aggravated form of Section 379 of IPC. It was observed at page 588:
"11. Learned counsel for the first accused, who is the revision petitioner, told me that the charge is only for an offence punishable under S. 394 IPC, which deals only with voluntarily causing hurt in committing robbery and not under S. 392 for robbery and therefore, conviction by the ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 45 2025:HHC:30881 Sessions Judge under S. 379 cannot be justified. I do not think that there is any foundation for this argument.
12. It is true that a charge is the basic record which gives notice to the accused of what accusation he is going to be tried on, so that he can understand the details of the .
accusations and shape his defence properly. The normal rule is that a person could be convicted only for the offence for which he is charge-sheeted because he has notice only of that accusation. He cannot be convicted for a different offence for which he is not charged, even if such an offence is proved. But there may be cases in which a person charged with a major offence may have to be convicted on the basis of the evidence for a minor offence included in the major offence charged. For this purpose, provision is made in S. 222 Cr. P.C. That is possible in two contingencies. The first is when the offence charged consists of several particulars, a combination of some of which constitutes a complete minor offence and such combination is proved, but the remaining particulars constituting the major offence are not proved.
That is in cases where the minor offence is a part of the major offence. For example, when a person is charged for having committed grievous hurt punishable under S. 326 IPC, if the offence proved is only one punishable under S. 324 IPC, punishment under S. 324 is legal, though there was no charge for that offence. The second category is where facts are proved, which reduces the offence charged to a minor offence. For example, when an accused is charged for murder punishable under S. 302 IPC, if any of the exceptions to S. 300 IPC are proved to exist, punishment could be had under S. 304 even though there is no charge under that section. In such cases, the offence for which punishment is imposed need not be a component of the main offence. But the major offence must be more or less a cognate offence because it is the proof of certain additional facts which reduce it to a minor offence.
13. But when the offence for which the accused is sought to be convicted is totally independent of the offence with which he is charged, and the two offences do not form part of the same transaction, the section cannot be invoked. Conviction for a different offence is possible only when notice of the ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 46 2025:HHC:30881 major offence will constitute notice of the minor offence also. If a person is charged only for causing hurt, he cannot be punished for theft because the ingredients constituting theft are not there in a charge of causing hurt, and it cannot be taken as notice of the offence of theft. Causing hurt is not .
a major offence consisting of several particulars, a combination of some of which will constitute the complete offence of theft. Both are independent offences having nothing common between them, and one cannot be said to be major and the other minor.
14. But in this case, that question does not arise. Here, the charge is for an offence punishable under S. 394, which includes not only causing hurt but causing hurt in committing or attempting to commit robbery, which is an aggravated form of theft. Even though S. 394 alone is there in the police charge and the court charge all the ingredients constituting robbery as defined in S. 390 and made punishable under S. 392 of the Indian Penal Code are also there in the charge, and the accused had sufficient notice that he was being tried for robbery as well. In the case of robbery, different degrees of punishment are provided in the Ss. 392, 394 and 397. The charge is not for causing a burr alone, and robbery is also there. Robbery and causing hurt in committing robbery include several particulars, a combination of some of which will constitute a complete offence of theft. Simply because S. 392 is not there in the charge, there cannot be a technical plea that conviction for theft is illegal. There is no question of prejudice, also because the accused had notice of the accusation of theft. Only in an offence of robbery, the offence punishable under S. 394 IPC will be attracted because the causing of voluntary hurt must be in committing robbery or in an attempt to commit robbery.
61. Hence, the conviction can be altered from Section 382 to Section 379 of IPC, and that will not prejudice the accused, because they were aware of the ingredients of the commission of the offence punishable under Section 379 of IPC.
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62. Consequently, the conviction recorded under Section 382 read with Section 34 of IPC is altered to Section 379 read with Section 34 of IPC.
.
63. An offence under Section 379 of IPC is punishable with imprisonment of either description for a term which may extend to three years or with fine. In the present case, the accused snatched the victim's chain and sped away from the spot in broad daylight.
64. Learned Trial Court had rightly pointed out that this was not an amateur but a professional act. Therefore, a deterrent sentence has to be awarded. Keeping in view the manner in which the offence was committed for monetary gain, the sentence of eighteen months of rigorous imprisonment and a fine of ₹ 1000/-
each and, in default of payment of fine, further simple imprisonment of two months would be adequate. Therefore, the sentence imposed by the learned Trial Court is to be modified.
65. In view of the above, the present revisions are partly allowed and the conviction recorded by the learned Trial Court for the commission of an offence punishable under Section 382 read with Section 34 of IPC is altered to Section 379 read with Section 34 of IPC. Each of the accused is sentenced to undergo rigorous imprisonment of eighteen months and pay a fine of ₹1000/-each, ::: Downloaded on - 10/09/2025 21:29:43 :::CIS 48 2025:HHC:30881 and in default of payment of fine, to further undergo simple imprisonment of two months for the commission of the aforesaid offence. Subject to this modification rest of the judgment passed by .
the learned Trial Court is upheld.
66. Revision petitions are disposed of in the aforesaid terms, so also pending application(s), if any.
67. A copy of this judgment, along with the records of the learned Courts below, be sent back forthwith.
10th September, 2025
r to (Rakesh Kainthla)
Judge
(ravinder)
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