Anil Kumar @ Nillu vs State Of H.P.

Rakesh Kainthla, J

The present appeal is directed against the judgment dated 01.01.2021 passed by learned Additional Sessions Judge, Nahan (learned Trial Court) vide which the appellant (accused before the learned Trial Court) was convicted of the commission of offences punishable under Sections 307, 326 and 354 of IPC and order dated 2.01.2021 vide which he was sentenced as under:-

Under Section 307 of IPC

To suffer imprisonment for life, pay a fine of ₹20,000/- and in default  of payment  of fine  to undergo further rigorous imprisonment for one year.

Under Section 354 of IPC

To suffer rigorous imprisonment for  two  years,  pay  a  fine  of ₹5,000/- (five thousand) and in default of payment of fine to suffer further simple imprisonment for three months.

Both the sentences were ordered to run concurrently.

(Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

Briefly stated, the facts giving rise to the present appeal are that the police filed a challan against the accused for the commission of offences punishable under Sections 323, 324, 326, 354 and 307 of IPC. It was asserted that the victim (name being withheld to protect her identity) had gone to the jungle on 06.09.2015. She was found in an injured condition by Ram Lal (PW3). He informed the son of the victim (PW1). She was brought to the hospital. Intimation was given to the police and entry (Ext. PW9/A) was recorded in the police station HC-Vidya Nand (PW9) and HHC Pratap Singh went to Civil Hospital Sarahan for the verification of the information. Vidya Nand (PW9) recorded the statement of the informant (Ext. PW1/A) and sent it to the Police Station where FIR (Ext. PW10/A) was registered. Dr Deepika (PW6) conducted the victim’s medical examination and found multiple injuries on her person. She referred the victim to a higher centre for further evaluation and management. She reserved her final opinion. She issued the MLC (Ext. PW6/A). HC Vidya Nand (PW9) visited the spot and recorded the statements of the witnesses as per their version. He took the photographs (Ext. PW9/B and Ext. PW9/C). He prepared the spot map (Ext. PW9/D). He picked up the chopped thumb and index finger of the victim which were put in a match box. These were sealed in a parcel with three seal impressions of seal ‘V’. These were seized vide memo (Ext. PW8/A). He also seized an ear ring, nose pin, lighter and a stick from the spot which were put in a matchbox and were sealed in a parcel with seal ‘V’. These were seized vide memo (Ext. PW8/B). HC Vidya Nand (PW9) picked blood-stained mud and leaves from the spot which were wrapped in a newspaper and these were sealed in a parcel with seal impression ‘V’. The seal was handed over to witness Anil Kumar after the use. Memo (Ext. PW8/C) was prepared. The victim handed over her shirt, salwar, dupatta and pullover which were seized vide memo (Ext. PW1/B). The case property was deposited with MHC-Om Prakash (PW10) who made an entry in the malkhana register and deposited the case property in the malkhana. Further investigation was conducted by ASI-Sohan Lal (PW12). He brought three persons to the police station and the victim identified the accused. A memo (Ext. PW5/A) was prepared. The accused disclosed that he had concealed the clothes in his residence and he could get them recovered. Disclosure statement (Ext. PW2/A) was reduced into writing. The accused was taken to the victim’s house where the victim handed over a darat. ASI Sohan Lal (PW12) prepared a sketch of Darat (Ext. PW5/C) and sealed it in a cloth parcel with three impressions of seal ‘A’. Darat was seized vide memo (Ext. PW5/B). The accused led the police to Shamlati village, where he got a shirt and trouser recovered. The police sealed the shirt and the trouser in a cloth parcel with three impressions of seal ‘A’. These were seized vide memo (Ext. PW5/D). The site plan (Ext. PW12/A) was prepared. The blood sample of the victim was taken on an FTA Card. The statement of the victim (Ext. PW5/E) was recorded by the learned Judicial Magistrate, First Class, Rajgarh. The case property was deposited with Om Prakash. He sent the case property to FSL for analysis. The results of the analysis (Ext. PW13/A and Ext. PW14/A) were issued stating that human blood was detected on the thumb and the fingertip but the result was inconclusive regarding the blood group. Human blood group ‘B’ was detected on the blood-stained leaves lifted from the spot, shirt, salwar, dupatta and sweater of the victim. Blood was detected on darat, which was insufficient for serological examination. Blood was not detected on the cut scalp hair of the accused. The hair found on the thumb, fingertip and blood-stained leaves were identified as human head hair but they could not be compared with the scalp hair of the accused due to insufficient quantity. A mixed DNA profile was obtained from darat but nothing specific could be inferred from it. A DNA profile was obtained from the finger, which matched with the DNA profile obtained from the victim. Dr Deepika (PW6) issued her final opinion that the injuries were dangerous to life and could have been caused by a weapon like Darat (Ext. P5). Statements of the remaining witnesses were recorded as per their version and after the completion of the investigation, the challan was prepared and presented before the learned Judicial Magistrate, First Class, Rajgarh who committed it to learned Sessions Judge, Nahan for trial.

Learned Sessions Judge, Nahan assigned the case to learned Additional Sessions Judge, Nahan (learned Trial Court).

Learned Trial Court charged the accused with the commission of offences punishable under Sections 354, 326 and 307 of IPC to which the accused pleaded not guilty and claimed to be tried.

The prosecution examined 15 witnesses to prove its case. PW5 is the victim and PW1 is her son. Constable Nitin Kumar (PW2) is the witness to the disclosure statement. Ram Lal (PW3) was told by his wife Prabha (PW4) that the victim was lying in an injured condition. He informed the victim’s son telephonically about it. Prabha (PW4) saw the victim lying in an injured condition. She also took darat from her and kept it in the house of the victim. Dr Deepika (PW6) conducted the medical examination of the victim. Raman Singh (PW7) had engaged the victim and her son as labourers. He also witnessed the various recoveries. Anil Sharma (PW8) is the witness to the recovery of the index finger and thumb of the victim. HC Vidya Nand (PW9) conducted the initial investigation. MHC Om Prakash (PW10) was working as MHC with whom the case property was deposited. Constable Rizwan Ali (PW11) brought the case property from FSL to Police Station Pachhad. ASI Sohan Lal (PW12) conducted the investigation. Ram Chand (PW13) prepared the challan. SI Ashok Negi (PW14) prepared the supplementary challan. Dr. Supriya (PW15) treated the victim in Zonal Hospital, Solan.

The accused in his statement recorded under Section 313 of Cr.P.C. denied the prosecution case in its entirety. He stated that he was innocent. No defence was sought to be adduced by him.

Learned Trial Court held that the victim’s testimony was corroborated by the medical evidence. The fact that the test identification parade was not conducted in the presence of the Magistrate is not sufficient to discard the prosecution case. The purpose of the test identification parade is to test the observation and memory of the witness. In the present case, the victim had sufficient time to see the accused. She had also described the accused to the police. Therefore, her power of observation could not be doubted. The accused had acted indecently with the victim and when she resisted, the accused inflicted darat blows to her. The defence version that the victim could have fallen and sustained injuries was not probabilized. There was nothing to doubt in the prosecution case; hence, the accused was convicted and sentenced as aforesaid.

Being aggrieved from the judgment and order passed by the learned Trial Court, the accused has filed the present appeal asserting that the learned Trial Court failed to properly appreciate the evidence led before it. The judgment is based upon assumption and presumption and is not sustainable. The prosecution is required to prove its case beyond a reasonable doubt. There were various infirmities in the prosecution case. The test identification parade was necessary and in the absence of the same, the identity of the accused was not established. Therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.

We have heard Mr Ram Murti Bisht, learned counsel for the appellant and Mr Varun Chandel, learned Additional Advocate General, for the respondent/State.

Mr. Ram Murti Bisht, learned counsel for the appellant/accused submitted that the learned Trial Court erred in convicting and sentencing the accused. There is a major discrepancy between the victim’s statement recorded by the learned Magistrate and the learned Trial Court. This discrepancy is sufficient to discredit her. Learned Trial Court failed to notice the same. The test identification parade was conducted before the police and it is inadmissible. The police should have got the test identification parade conducted in the presence of a Magistrate. In the absence of a test identification parade, the identity of the accused is not established. In the alternative, he submitted that the learned Trial Court had imposed a maximum sentence of life simply on the premise that the accused was involved in another offence, which is not a relevant consideration; therefore, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside or the sentence imposed by the learned Trial Court be reduced.

Mr. Varun Chandel, learned Additional Advocate General for the respondent/State supported the judgment and order passed by the learned Trial Court. He submitted that the testimony of the victim is duly corroborated by the medical evidence and the other circumstances proved on record. The accused was involved in the commission of another offence and this fact was rightly considered by the learned Trial Court while imposing the sentence. Therefore, he prayed that the present appeal be dismissed.

We have given considerable thought to the submissions made at the bar and have gone through the records carefully.

The victim (PW5) stated that she had gone to the forest to graze the goats on 06.09.2015. Her son had gone to graze the cows on the other side of the forest. She was trimming a tree when the accused came under the tree at 2:00-2:30 pm. The accused was wearing a red shirt. The accused demanded beedi from her. She threw a bundle of beedi and a lighter from the tree. When she was getting down from the tree, the accused put his hands under her feet. She objected and the accused removed his hands. The accused enquired about the path leading to village Runja and she replied that the path was far away from the spot. The accused told her that he had visited the spot after hearing the voice of a girl. He demanded darat from her. When she refused to deliver the darat, the accused snatched the darat from her. The accused felt her breasts and sat on her chest. He gave her many blows with darat on her throat, nose and forehead. He chopped her thumb and index finger of her right hand. She became unconscious and regained consciousness after some time. She picked up her darat and bag and reached the house of Prabha. She told Prabha (PW4) that the accused had inflicted severe injuries with darat. She became unconscious. She regained consciousness in Solan Hospital where she remained admitted for 8-9 days. She handed over her clothes to the police. She identified the accused among three persons at the police station. She also handed over the darat to the police, which was seized by the police.

She stated in her cross-examination that she was working in the house of Raman and he was paying ₹ 10,000/- per month to her. The distance between the house of Prabha and the forest where she was trimming a tree was about 8 kilometres. She proceeded from her house at 10:00 am. She admitted that the place where she was trimming the tree was adjacent to a path. She had thrown a lighter to the accused to ignite the beedi. She had mentioned to the Judicial Magistrate, Rajgarh that the accused put his hand under her feet when she was coming down from the tree. She was confronted with her statement where this fact was not recorded. She had also told the Judicial Magistrate that the accused snatched darat from her hand. Later on, she came to know that she was taken to the hospital by Raman. She had mentioned to the Judicial Magistrate that the accused inflicted blows with darat on her nose and chopped her thumb and index finger. She had also told the police and the Judicial Magistrate that she had brought a bag and darat from the spot. She was confronted with the previous statement where these facts were not recorded. She reached the police station at about 10:00 am with her son. She could not tell the names of two other boys, who were mixed with the accused. She denied that she was not properly working in the house of Raman and that Raman wanted to engage the accused as a labourer. She denied that she fell from the tree and sustained injuries by a fall.

Her statement is duly corroborated by Prabha (PW4). She stated that she saw the victim coming out of the forest. She went to the victim and enquired whether she was attacked by a leopard. The victim replied that she was attacked by a person. She informed her husband and Raman. Raman and the victim’s son came to the spot. The victim was holding a darat in her hand and a bag was hanging on her neck. She was unable to speak. She was taken to the hospital. She (Prabha) kept darat in the victim’s house. She stated in her cross-examination that the forest is scattered in about 1 kilometer area and she had seen the victim at a distance of 50 meters. She had not told the police that the victim was holding a darat and bag with her. She denied that she was making a false statement.

Dr. Deepika (PW6) conducted the medical examination of the victim. She found ten injuries on her person, which could have been caused by a darat. She denied in her cross-examination that a person could sustain injuries by way of a fall. Thus, the victim’s version that she had sustained injuries by darat is duly proved on record. It was laid down by the Hon’ble Supreme Court in Bhajan Singh @ Harbhajan Singh & Ors. Versus State of Haryana (2011) 7 SCC 421, that the evidence of the stamped witness must be given due weightage, as his presence on the spot cannot be doubted. It was observed: -

“36. The evidence of the stamped witness must be given due weightage as his presence at the place of occurrence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present at the time of occurrence. Thus, the testimony of an injured witness is accorded a special status in law. Such a witness comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness". Thus, the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide: Abdul Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259; Kailas & Ors. v. State of Maharashtra, (2011) 1 SCC 793; Durbal v. State of Uttar Pradesh, (2011) 2 SCC 676; and State of U.P. v. Naresh & Ors., (2011) 4 SCC 324).

It was held by the Hon’ble Supreme Court in Neeraj Sharma v. State of Chhattisgarh, (2024) 3 SCC 125: 2024 SCC OnLine SC 13 that the testimony of the injured witness has to be accepted as correct unless there are compelling circumstances to doubt such statement. It was observed:

“22. The importance of an injured witness in a criminal trial cannot be overstated. Unless there are compelling circumstances or evidence placed by the defence to doubt such a witness, this has to be accepted as extremely valuable evidence in a criminal trial.

In Balu  Sudam  Khalde v. State  of  Maharashtra [Balu Sudam Khalde v. State of Maharashtra, (2023) 13 SCC 365: 2023 SCC OnLine SC 355] this Court summed up the principles which are to be kept in mind when appreciating the evidence of an injured eyewitness. This Court held as follows: (SCC para 26)

“26. When the evidence of an injured eyewitness is to be appreciated, the under-noted legal principles enunciated by the Courts are required to be kept in mind:

26.1. The presence of an injured eyewitness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.

26.2. Unless it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.

26.3. The evidence of the injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.

26.4. The evidence of the injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.

26.5. If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of the injured, but not the whole evidence.

26.6. The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with the passage of time should be discarded.” (emphasis supplied)

It was laid down by the Hon’ble Supreme Court in State of U.P Versus Smt. Noorie Alias Noor Jahan and Others, (1996) 9 SCC 104, that while assessing the evidence of an eye witness, the Court must adhere to two principles namely whether in the circumstances of the case, the eye witness could be present and whether there is anything inherently improbable or unreliable. It was observed:-

“7. The High Court having acquitted the accused persons on appreciation of the evidence, we have ourselves scrutinised the evidence of PWs. 1, 2 and 3. The conclusion is irresistible that their evidence on material particulars has been brushed aside by the High Court by entering into the realm of conjecture and fanciful speculation without even discussing the evidence more particularly the evidence relating to the basic prosecution case. While assessing and evaluating the evidence of eyewitnesses the Court must adhere to two principles, namely whether in the circumstances of the case, it was possible for the eyewitness to be present at the scene and whether there is anything inherently improbable or unreliable. The High Court in our opinion has failed to observe the aforesaid principles and in fact, had misappreciated the evidence which has caused a gross miscarriage of justice. The credibility of a witness has to be decided by referring to his evidence and finding out how he has fared in cross-examination and what impression is created by his evidence taken insofar as the context of the case and not by entering into the realm of conjecture and speculation. On scrutinising the evidence of PWs. 1, 2 and 3 we find they are consistent with one another so far as the place of occurrence, the manner of assault, the weapon of assault used by the accused persons, the fact of dragging of the dead body of the deceased from the place to the grove and nothing has been brought out in their cross-examination to impeach their testimony. The aforesaid oral evidence fully corroborates the medical evidence. In that view of the matter, we unhesitatingly come to the conclusion that the prosecution has been able to establish the charge against the accused persons and the High Court committed an error in acquitting the three respondents namely Inder Dutt, Raghu Raj and Bikram.” (emphasis supplied)

In the present case, the presence of the victim is duly established by her injuries. It was laid down by the Hon’ble Supreme Court in State of Punjab vs. Hari Singh 1974 (3) SCR 725 that a person speaking on oath should be presumed to be a truthful witness unless there is something inherently improbable in his testimony. It was observed:

“The ordinary presumption is that a witness speaking under an oath is truthful unless and until he is shown to be untruthful or unreliable in any particular respect. The High Court, reversing this approach, seems to us to have assumed that witnesses are untruthful unless it is proved that they are telling the truth. Witnesses, solemnly 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.”

It was suggested to the victim that she was not working properly and her employer Raman wanted to employ the accused. Significantly, Raman (PW7) specifically denied this fact. He was the best person to say whether he wanted to engage the accused as a labourer or not and about the working of the victim. Once he had specifically denied that the victim was not working properly and he wanted to engage the accused, the defence version that the victim had made a false case due to enmity with the accused has not been proved on record.

It was submitted that there are major improvements in the statement of the victim vis à vis her statement recorded by the learned Judicial Magistrate (Ext. PW5/E). This cannot be accepted. The omissions, which were put to the victim are merely a matter of details and do not affect the core of the prosecution case. The police had recovered the chopped thumb and index finger from the spot. The Medical Officer had also found a chopped distal phalanx of the right index finger and right thumb. These facts duly proved that the index finger and thumb of the victim were chopped and the mere omission to state this fact to the Magistrate will not make the victim’s testimony suspect. The victim’s statement that she had brought darat with her is duly corroborated by Prabha (PW4) against whom nothing was alleged; therefore, this fact was also proved by other evidence on record. Even if the victim had not mentioned this fact to the police, it cannot be said that this was an incorrect fact and the testimony of the victim is to be discarded due to the omission to state the fact. Further, the fact that the accused had put his hand beneath the victim’s foot is a matter of detail and the omission of the same is not sufficient to discard the same.

It was laid down by the Hon’ble Supreme Court in Matadin v. State of U.P., 1980 Supp SCC 157: 1979 SCC (Cri) 627 that minor omissions in the statement is not sufficient to discard the prosecution’s case. It was observed at page 158:

“3. The learned Sessions Judge had rejected the evidence of the eyewitnesses on wrong, unconvincing and unsound reasons. The Sessions Judge appears to have been swayed by some insignificant omissions made by some of the witnesses in their statement before the police and on the basis of these omissions dubbed the witnesses as liars. The Sessions Judge did not realise that the statements given by the witnesses before the police were meant to be brief statements and could not take the place of evidence in the Court. Where the omissions are vital, they merit consideration, but mere small omissions will not justify a finding by a court that the witnesses concerned are self-contained liars. We have carefully perused the judgment of the Sessions Judge and we are unable to agree that the reasons that he has given for disbelieving the witnesses are good or sound reasons. The High Court was, therefore, fully justified in reversing the judgment passed by the trial court. We are satisfied that this is a case where the judgment of the Sessions Judge was manifestly wrong and perverse and was rightly set aside by the High Court.”

It was held in Esher Singh v. State of A.P., (2004) 11 SCC 585: 2004 SCC OnLine SC 320 that mere elaboration is not sufficient to discard the prosecution’s case. It was held at page 601:

“23. So far as the appeal filed by accused Esher Singh is concerned, the basic question is that even if the confessional statement purported to have been made by A-5 is kept out of consideration, whether residuary material is sufficient to find him guilty. Though it is true as contended by learned counsel for the accused-appellant Esher Singh that some statements were made for the first time in court and not during the investigation, it has to be seen as to what extent they diluted the testimony of Balbeer Singh and Dayal Singh (PWs 16 and 32) used to bring home the accusations. A mere elaboration cannot be termed as a discrepancy. When the basic features are stated, unless the elaboration is of such a nature that it creates a different contour or colour of the evidence, the same cannot be said to have totally changed the complexion of the case. It is to be noted that in addition to the evidence of PWs 16 and 32, the evidence of S. Narayan Singh (PW 21) provides the necessary links and strengthens the prosecution version...”

This position was reiterated in Shamim v. State (NCT of Delhi), (2018) 10 SCC 509: (2019) 1 SCC (Cri) 319: 2018 SCC OnLine SC 1559 where it was held at page 513:

“12. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole inspires confidence. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, a hypertechnical approach by taking sentences torn out of context here or there from the evidence, and attaching importance to some technical error without going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Minor omissions in the police statements are never considered to be fatal. The 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.”

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. 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.”

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 M.P. [Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] )

***

In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental dispositions such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.

‘9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version when the entire evidence is put in a crucible for being tested on the touchstone of credibility.’ [Ed.: As observed in Bihari Nath Goswami v. Shiv Kumar Singh, (2004) 9 SCC 186, p. 192, para 9: 2004 SCC (Cri) 1435]

Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. (Vide State v. Saravanan [State v. Saravanan, (2008) 17 SCC 587 : (2010) 4 SCC (Cri) 580], Arumugam v. State [Arumugam v. State, (2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130], Mahendra Pratap Singh v. State of U.P. [Mahendra Pratap Singh v. State of U.P., (2009) 11 SCC 334 : (2009) 3 SCC (Cri) 1352] and Sunil Kumar Sambhudayal Gupta v. State of Maharashtra [Sunil Kumar Sambhudayal Gupta v. State of Maharashtra, (2010) 13 SCC 657 : (2011) 2 SCC (Cri) 375]”

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.”

It was laid down by the Hon’ble Supreme Court in Achhar Singh v. State of H.P., (2021) 5 SCC 543: 2021 SCC OnLine SC 368 that the testimony of a witness cannot be discarded due to exaggeration alone. It was observed at page 555:

“25. It is vehemently contended that the evidence of the prosecution witnesses is exaggerated and thus false. Cambridge Dictionary defines “exaggeration” as “the fact of making something larger, more important, better or worse than it really is”. Merriam-Webster defines the term “exaggerate” as to “enlarge beyond bounds or the truth”. The Concise Oxford English Dictionary defines it as “enlarged or altered beyond normal proportions”. These expressions unambiguously suggest that the genesis of an “exaggerated statement” lies in a true fact, to which fictitious additions are made so as to make it more penetrative. Every exaggeration, therefore, has the ingredients of “truth”. No exaggerated statement is possible without an element of truth. On the other hand, Advanced Law Lexicon defines “false” as “erroneous, untrue; opposite of correct, or true”. Concise Oxford English Dictionary states that “false” is “wrong; not correct or true”. Similar is the explanation in other dictionaries as well. There is, thus, a marked differentia between an “exaggerated version” and a “false version”. An exaggerated statement contains both truth and falsity, whereas a false statement has no grain of truth in it (being the “opposite” of “true”). It is well said that to make a mountain out of a molehill, the molehill shall have to exist primarily. A court of law, being mindful of such distinction is duty-bound to disseminate “truth” from “falsehood” and sift the grain from the chaff in case of exaggerations. It is only in a case where the grain and the chaff are so inextricably intertwined that in their separation no real evidence survives, that the whole evidence can be discarded. [Sucha Singh v. State of Punjab, (2003) 7 SCC 643, para 18: 2003 SCC (Cri) 1697]

The learned State counsel has rightly relied on Gangadhar Behera [Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381: 2003 SCC (Cri) 32] to contend that even in cases where a major portion of the evidence is found deficient if the residue is sufficient to prove the guilt of the accused, a conviction can be based on it. This Court in Hari Chand v. State of Delhi [Hari Chand v. State of Delhi, (1996) 9 SCC 112: 1996 SCC (Cri) 950] held that : (Hari Chand case [Hari Chand v. State of Delhi, (1996) 9 SCC 112: 1996 SCC (Cri) 950], SCC pp. 124-25, para 24)

“24. … So far as this contention is concerned it must be kept in view that while appreciating the evidence of witnesses in a criminal trial, especially in a case of eyewitnesses the maxim falsus in uno, falsus in omnibus cannot apply and the court has to make efforts to sift the grain from the chaff. It is of course true that when a witness is said to have exaggerated in his evidence at the stage of trial and has tried to involve many more accused and if that part of the evidence is not found acceptable the remaining part of evidence has to be scrutinised with care and the court must try to see whether the acceptable part of the evidence gets corroborated from other evidence on record so that the acceptable part can be safely relied upon.” (emphasis supplied)

There is no gainsaid that homicidal deaths cannot be left to judicium dei. The court in its quest to reach the truth ought to make earnest efforts to extract gold out of the heap of black sand. The solemn duty is to dig out the authenticity. It is only when the court, despite its best efforts, fails to reach a firm conclusion that the benefit of the doubt is extended.

It was laid down by the Hon’ble Supreme Court in Arvind Kumar v. State of Rajasthan, (2022) 16 SCC 732: 2021 SCC OnLine SC 1099, that the testimony of a witness cannot be discarded because he had made a wrong statement regarding some aspect. The principle that when a witness deposes falsehood his entire statement is to be discarded does not apply to India. It was observed at page 754: -

“Falsus in uno, falsus in omnibus

The principle that when a witness deposes falsehood, the evidence in its entirety has to be eschewed may not have strict application to the criminal jurisprudence in our country. The principle governing sifting the chaff from the grain has to be applied. However, when the evidence is inseparable and such an attempt would either be impossible or would make the evidence unacceptable, the natural consequence would be one of avoidance. The said principle has not assumed the status of law but continues only as a rule of caution. One has to see the nature of the discrepancy in a given case. When the discrepancies are very material shaking the very credibility of the witness leading to a conclusion in the mind of the court that it is neither possible to separate it nor to rely upon, it is for the said court to either accept or reject.

The said principle of law has been dealt with by this Court in Anand Ramachandra Chougule v. Sidarai Laxman Chougala [Anand Ramachandra Chougule v. Sidarai Laxman Chougala, (2019) 8 SCC 50 : (2019) 3 SCC (Cri) 309], which states thus : (SCC pp. 53-54, paras 9-13)

“9. We have considered the respective submissions and perused the materials on record. The relationship between parties and the existence of a land dispute regarding which a civil suit was also pending are undisputed facts. The fact that a verbal duel followed by a scuffle took place between the parties culminating in injuries is a concurrent finding of fact by two courts. The fact that the accused also lodged an FIR with regard to the same occurrence stands established by the evidence of PWs 19 and 22, the investigating officers, who have admitted that the respondent-accused had also lodged BRPS Cr. No. 79/02 — marked Ext. D-10, which was not investigated by them. Similarly, PW 11, the police constable, deposed that two of the accused were admitted to District Hospital, Belgaum and that he was posted on watch duty. The occurrence is of 7-6-2002 and respondents Accused 1 and 2 were discharged on 11-6-2002. Their injury report has not been brought on record by the prosecution and no explanation has been furnished in that regard.

The burden lies on the prosecution to prove the allegations beyond all reasonable doubt. In contradistinction to the same, the accused has only to create a doubt about the prosecution case and the probability of its defence. An accused is not required to establish or prove his defence beyond all reasonable doubt, unlike the prosecution. If the accused takes a defence, which is not improbable and appears likely, there is material in support of such defence, the accused is not required to prove anything further. The benefit of the doubt must follow unless the prosecution is able to prove its case beyond all reasonable doubt.

The fact that a defence may not have been taken by an accused under Section 313CrPC again cannot absolve the prosecution from proving its case beyond all reasonable doubt. If there are materials which the prosecution is unable to answer, the weakness in the defence taken cannot become the strength of the prosecution to claim that in the circumstances it was not required to prove anything. In Sunil Kundu v. State of Jharkhand [Sunil Kundu v. State of Jharkhand, (2013) 4 SCC 422 : (2013) 2 SCC (Cri) 427], this Court observed : (SCC pp. 433-34, para 28)

‘28. … When the prosecution is not able to prove its case beyond reasonable doubt it cannot take advantage of the fact that the accused have not been able to probabilise their defence. It is well settled that the prosecution must stand or fall on its own feet. It cannot draw support from the weakness of the case of the accused if it has not proved its case beyond reasonable doubt.’

The fact that an FIR was lodged by the accused with regard to the same occurrence, the failure of the police to explain why it was not investigated, coupled with the admitted fact that the accused were also admitted in the hospital for treatment with regard to injuries sustained in the same occurrence, but the injury report was not brought on record and suppressed by the prosecution, creates sufficient doubts which the prosecution has been unable to answer.

We find it difficult to concur with the submission on behalf of the appellants that the failure of the prosecution to investigate the FIR lodged by the accused with regard to the same occurrence or to place their injury reports on record was merely a defective investigation. We are of the considered opinion that the failure of the prosecution to act fairly and place all relevant materials with regard to the occurrence before the court enabling it to take a just and fair decision has caused serious prejudice to them. A fair criminal trial encompasses a fair investigation at the pre-trial stage, a fair trial where the prosecution does not conceal anything from the court and discharges its obligations in accordance with law impartially to facilitate a just and proper decision by the court in the larger interest of justice concluding with fairness in sentencing also.”

In the present case the improvements brought out in the cross-examination are minor. They are elucidations of the facts already stated by the victim to the learned Judicial Magistrate and will not fall within the definition of an improvement.

Therefore, the testimony of the victim cannot be discarded because she was confronted with her previous statement recorded by the police/Magistrate.

The victim stated in her statement (Ext. PW5/A) that the accused demanded darat from her and thereafter, he threw darat away. When she went to pick up Darat, the accused molested her and did not allow her to pick up Darat. When she tried to save her, the accused inflicted a blow by something and she became unconscious. It was submitted that this is contrary to the statement made in the Court and this would make the testimony of the victim highly suspect. This submission cannot be accepted. Section 145 of the Indian Evidence Act provides that the attention of the witness should be drawn to the previous statement with which, he is sought to be contradicted. The previous statement is also required to be proved as per the law. It was laid down by the Hon’ble Supreme Court in Binay Kumar Singh Versus State of Bihar, 1997 (1) SCC 283, that if it is intended to contradict a witness, his attention must be drawn towards the previous statement. It was observed: -

“11. The credit of a witness can be impeached by proof of any statement which is inconsistent with any part of his evidence in Court. This principle is delineated in S. 155 (3) of the Evidence Act and it must be borne in mind when reading S. 145 which consists of two limbs. It is provided in the first limb of S.145 that a witness may be cross-examined as to the previous statement made by him without such writing being shown to him but the second limb provides that "if it is intended to contradict him by the writing his attention must before the writing can be provided, be called to those parts of it which are to be used for the purpose of contradicting him." There is thus a distinction between the two vivid limbs, though subtle it may be. The first limb does not envisage impeaching the credit of a witness, but it merely enables the opposite party to cross-examine the witness with reference to the previous statements made by him. He may at that stage succeed in eliciting materials to his benefit through such cross-examination even without resorting to the procedure laid down in the second limb. But if the witness disowns having made any statement which is inconsistent with his present stand his testimony in Court on that score would not be vitiated until the cross-examiner proceeds to comply with the procedure prescribed in the second limb of S. 145.

In Bhagwan Singh's case (AIR 1952 SC 214), Vivian Bose, J. pointed out in paragraph 25 that during the cross-examination of the witnesses concerned the formalities prescribed by S. 145 are complied with. The cross-examination, in that case, indicated that every circumstance intended to be used as a contradiction was put to him point by point and passage by passage. Learned Judges were called upon to deal with an argument that witnesses' attention should have been specifically drawn to that passage in addition thereto. Their Lordships were, however, satisfied in that case that the procedure adopted was in substantial compliance with S. 145, and hence held that all that is required is that the witness must be treated fairly and must be afforded a reasonable opportunity of explaining the contradictions after his attention has been drawn to them in a fair and reasonable manner. On the facts of that case, there is no dispute with the proposition laid therein.

So long as the attention of PW 32 (Sukhdev Bhagat) was not drawn to the statement attributed to him as recorded by DW-10 (Nawal Kishore Prasad) we are not persuaded to reject the evidence of PW-32 that he gave Ex. 14 statement at the venue of occurrence and that he had not given any other statement earlier thereto.”

A similar view was taken in Alauddin v. State of Assam, 2024 SCC OnLine SC 760 wherein it was observed:

“7. When the two statements cannot stand together, they become contradictory statements. When a witness makes a statement in his evidence before the Court which is inconsistent with what he has stated in his statement recorded by the Police, there is a contradiction. When a prosecution witness whose statement under Section 161(1) or Section 164 of CrPC has been recorded states factual aspects before the Court which he has not stated in his prior statement recorded under Section 161(1) or Section 164 of CrPC, it is said that there is an omission. There will be an omission if the witness has omitted to state a fact in his statement recorded by the Police, which he states before the Court in his evidence. The explanation to Section 162 CrPC indicates that an omission may amount to a contradiction when it is significant and relevant. Thus, every omission is not a contradiction. It becomes a contradiction provided it satisfies the test laid down in the explanation under Section 162. Therefore, when an omission becomes a contradiction, the procedure provided in the proviso to sub-Section (1) of Section 162 must be followed for contradicting witnesses in the cross-examination.

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 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.

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.

We are tempted to quote what is held in a landmark decision of this Court in the case of Tahsildar Singh v. State of U.P.1959 Supp (2) SCR 875 Paragraph 13 of the said decision reads thus:

“13. The learned counsel's first argument is based upon the words “in the manner provided by Section 145 of the Indian Evidence Act, 1872” found in Section 162 of the Code of Criminal Procedure. Section 145 of the Evidence Act, it is said, empowers the accused to put all relevant questions to a witness before his attention is called to those parts of the writing with a view to contradict him. In support of this contention, reliance is placed upon the judgment of this Court in Shyam Singh v. State of Punjab [(1952) 1 SCC 514: 1952 SCR 812]. Bose, J. describes the procedure to be followed to contradict a witness under Section 145 of the Evidence Act thus at p. 819:

Resort to Section 145 would only be necessary if the witness denies that he made the former statement. In that event, it would be necessary to prove that he did, and if the former statement was reduced to writing, then Section 145 requires that his attention must be drawn to these parts which are to be used for contradiction. But that position does not arise when the witness admits the former statement. In such a case all that is necessary is to look to the former statement of which no further proof is necessary because of the admission that it was made.”

It is unnecessary to refer to other cases wherein a similar procedure is suggested for putting questions under Section 145 of the Indian Evidence Act, for the said decision of this Court and similar decisions were not considering the procedure in a case where the statement in writing was intended to be used for contradiction under Section 162 of the Code of Criminal Procedure. Section 145 of the Evidence Act is in two parts: the first part enables the accused to cross-examine a witness as to a previous statement made by him in writing or reduced to writing without such writing being shown to him; the second part deals with a situation where the cross-examination assumes the shape of contradiction: in other words, both parts deal with cross-examination; the first part with cross-examination other than by way of contradiction, and the second with cross-examination by way of contradiction only. The procedure prescribed is that, if it is intended to contradict a witness by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to Section 162 of the Code of Criminal Procedure only enables the accused to make use of such a statement to contradict a witness in the manner provided by Section 145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of Section 145 of the Evidence Act. Nor are we impressed by the argument that it would not be possible to invoke the second part of Section 145 of the Evidence Act without putting relevant questions under the first part thereof. The difficulty is more imaginary than real. The second part of Section 145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate: A says in the witness box that B stabbed C; before the police, he had stated that D stabbed C. His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness box. If he admits his previous statement, no further proof is necessary; if he does not admit it, the practice generally followed is to admit it subject to proof by the police officer. On the other hand, the procedure suggested by the learned counsel may be illustrated thus: If the witness is asked “Did you say before the police officer that you saw a gas light?” and he answers “yes”, then the statement which does not contain such recital is put to him as a contradiction. This procedure involves two fallacies: one is it enables the accused to elicit by a process of cross-examination what the witness stated before the police officer. If a police officer did not make a record of a witness's statement, his entire statement could not be used for any purpose, whereas if a police officer recorded a few sentences, by this process of cross-examination, the witness's oral statement could be brought on record. This procedure, therefore, contravenes the express provision of Section 162 of the Code. The second fallacy is that by the illustration given by the learned counsel for the appellants, there is no self-contradiction of the primary statement made in the witness box, for the witness has yet not made on the stand any assertion at all which can serve as the basis. The contradiction, under the section, should be between what a witness asserted in the witness box and what he stated before the police officer, and not between what he said he had stated before the police officer and what he actually made before him. In such a case the question could not be put at all: only questions to contradict can be put and the question here posed does not contradict; it leads to an answer which is contradicted by the police statement. This argument of the learned counsel based upon Section 145 of the Evidence Act is, therefore, not of any relevance in considering the express provisions of Section 162 of the Code of Criminal Procedure.” (emphasis added)

This decision is a locus classicus, which will continue to guide our Trial Courts. In the facts of the case, the learned Trial Judge has not marked those parts of the witnesses' prior statements based on which they were sought to be contradicted in the cross-examination.”

It was held in Anees v. State (NCT of Delhi), 2024 SCC OnLine SC 757 that the Courts cannot suo motu take cognizance of the contradiction and the same has to be brought on record as per the law. It was observed:

“64. The court cannot suo motu make use of statements to police not proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court. The words ‘if duly proved’ used in Section 162 Cr. P.C. clearly show that the record of the statement of witnesses cannot be admitted in evidence straightaway, nor can be looked into, but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross-examination of the Investigating Officer. The statement before the Investigating Officer can be used for contradiction but only after strict compliance with Section 145 of the Evidence Act, that is, by drawing attention to the parts intended for contradiction.

Section 145 of the Evidence Act reads as under:

“145. Cross-examination as to previous statements in writing.— A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of the witness is drawn to that part and this must be reflected in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need for further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process, the contradiction is merely brought on record, but it is yet to be proved. Thereafter, when the Investigating Officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the Investigating Officer who, again, by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out the part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act, that is, by drawing attention to the parts intended for contradiction.” [See: V.K. Mishra v. State of Uttarakhand : ((2015) 9 SCC 588]

In the present case, the defence has not put the contradiction to the victim and the victim has not been given a chance to explain the same. Therefore, the same cannot be used to discard the testimony of the victim.

In the present case, the victim had identified the accused at the police station. No test identification parade was conducted in the presence of a learned Judicial Magistrate. It was laid down in Chunthuram v. State of Chhattisgarh, (2020) 10 SCC 733, that an identification made in the police presence is hit by Section 162 of Cr.P.C. It was observed:-

“11. The infirmities in the conduct of the test identification parade would next bear scrutiny. The major flaw in the exercise here was the presence of the police during the exercise. When the identifications are held in police presence, the resultant communications are tantamount to statements made by the identifiers to a police officer in the course of investigation and they fall within the ban of Section 162 of the Code. (See Ramkishan Mithanlal Sharma v. State of Bombay [Ramkishan Mithanlal Sharma v. State of Bombay, (1955) 1 SCR 903: AIR 1955 SC 104: 1955 Cri LJ 196].)”

Thus, no reliance can be placed upon the identification of the accused conducted in the police station.

It was submitted that the test identification parade was necessary and in the absence of the test identification parade, the identity of the accused has not been established. This submission is not acceptable. It was laid down by the Hon'ble Supreme Court in Matru alias Girish Chandra Versus State of UP (1971) 2 SCC 75 that the test identification parade does not constitute a substantive piece of evidence. It is meant for the investigating agency to lend an assurance that the investigation is proceeding along the right lines. This position was reiterated in Ronny v. State of Maharashtra, (1998) 3 SCC 625: 1998 SCC (Cri) 859 and it was held that the substantive piece of evidence is identification in the court and there is no requirement of its corroboration from a previous identification parade. It was observed:

“18. Section 9 of the Evidence Act deals with the relevancy of facts necessary to explain or introduce relevant facts. It says, inter alia, facts which establish the identity of anything or person whose identity is relevant, insofar as they are necessary for the purpose, are relevant. So the evidence of identification is a relevant piece of evidence under Section 9 of the Evidence Act where the evidence consists of identification of the accused person at his trial. The statement of the witness made in the court, a fortiori identification by him of an accused is substantive evidence but from its very nature it is inherently of a weak character. The evidence of identification in the TIP is not a substantive evidence but is only corroborative evidence. It falls in the realm of investigation. The substantive evidence is the statement of the witness made in the court. The purpose of the test identification parade is to test the observation, grasp, memory, capacity to recapitulate what he has seen earlier, strength or trustworthiness of the evidence of the identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in court. If a witness identifies the accused in court for the first time after a long time, the probative value of such uncorroborated evidence becomes minimal, so much so that it becomes unsafe to rely on such a piece of evidence. But if a witness has known an accused earlier in such circumstances which lend assurance to identification by him in court and if there is no inherent improbability or inconsistency, there is no reason why his statement in court about the identification of the accused should not be relied upon as any other acceptable but uncorroborated testimony.

In Budhsen v. State of U.P. [(1970) 2 SCC 128: 1970 SCC (Cri) 343: AIR 1970 SC 1321] the witness saw the assailants when they were running away after the alleged murder. Observing that the witness had only a mere fleeting glimpse and for identification one would certainly expect more firm and positive reference, this Court did not consider it safe to rely on the TIP evidence as corroborative evidence of identification in court by the witness. About the identification of the accused in court, it was indicated that the same did not provide safe and trustworthy evidence to sustain a conviction. This Court also explained the nature of the identification parade, its essentials and its value.

In Rameshwar Singh v. State of J&K [(1971) 2 SCC 715: 1971 SCC (Cri) 638: AIR 1972 SC 102: (1972) 1 SCR 627] a three-judge Bench of this Court while dealing with the question of the identification parade observed as follows: (SCC pp. 718-19, para 6)

“[I]t may be remembered that the substantive evidence of a witness is his evidence in court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after the former's arrest is of vital importance because it furnishes to the investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. … The identification during police investigation, it may be recalled, is not substantive evidence in law and it can only be used for corroborating or contradicting evidence of the witness concerned as given in court. The identification proceedings, therefore, must be so conducted that evidence with regard to them when given at the trial, enables the court safely to form appropriate judicial opinion about its evidentiary value for the purpose of corroborating or contradicting the statement in court of the identifying witness.”

Shri Lalit, learned counsel for the appellants, relied upon the observations of this Court in Kanan v. State of Kerala [(1979) 3 SCC 319: 1979 SCC (Cri) 621: AIR 1979 SC 1127] and argued that the evidence of identification of PWs 29 and 34 is valueless as they were not called to identify the appellants in the test identification parade. In that case, the charge against the accused was that they entered into a conspiracy as members of a Naxalite party to raid Police Station Kuttiadi. In the course of the raid, the police station was attacked and articles were burnt. No member of the police station or staff was able to identify the raiders. Apart from the evidence of conspiracy, there was evidence of PW 25 who identified the appellants therein running away near the scene of occurrence after the raid took place in the police station. Firstly, his presence in the travelling bungalow was doubted and secondly, it was pointed out that he identified the appellants therein as persons who were running away near the place of occurrence and that the witness had admitted that he knew those two persons by face, yet he named them while identifying them in court. It was observed that there was a huge crowd after the police station was attacked and if those two appellants were seen running away that by itself would not show that they had taken part in the raid. It was on those facts, that it was observed that where a witness identified an accused in the court for the first time, who was not known to him, his evidence was absolutely valueless unless there had been a previous test identification parade to test his power of observation and that the idea of holding test identification parade was to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness might have seen only once and that if no test identification parade was held, it would be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in court. The rationale behind the observation of this Court is that as the evidence of identification of an accused in court is inherently of a weak character, as such it requires corroboration by way of test identification parade, so where the attending circumstances are such that the possibility of identifying the accused by the witness becomes bleak, as in that case, the witness only saw the appellants running away from the crowd, then such uncorroborated evidence cannot be relied upon to base a conviction. That judgment, in our view, did not lay down as a principle of law that where the accused was known to the witness from an earlier period or where the witness had a chance to interact with the accused or that in a case where the witness had an opportunity to observe the distinctive features of the accused, his evidence of identification in the court cannot be given any credence merely because the witness was not asked to identify the accused in the test identification parade.

In Mohd. Abdul Hafeez v. State of A.P. [(1983) 1 SCC 143: 1983 SCC (Cri) 139: AIR 1983 SC 367] the accused, along with others, was convicted under Section 392 read with Section 34 IPC. The victim did not give the name or description of the appellant therein in the first information report. This Court observed that the total absence of any such description which would have provided a yardstick to evaluate the identification of the appellant at a later date by a victim, would render his later identification weak. No test identification was conducted in that case, so it was held that the identification in court would hardly furnish any evidence against the appellant. Indeed, in that case, this Court observed that the witness did not give the description of the accused in the first information report or before the identification and the evidence of his identification was found to be weak, in the absence of corroboration, for being acted upon.

The identification of the appellants by PW 29, PW 34, PW 42 and PW 45 in court for the first time without prior identification by them in the test identification parade has been the subject matter of comment. Insofar as the identification of the appellants by PW 42 and PW 45 are concerned, the trial court as well as the High Court had not accepted the same but the identification of the appellants by PW 29 and PW 34 had been accepted by both the trial court as well as by the High Court and in our view rightly. We have already laid down above that the identification of the accused by a witness if he had an opportunity to interact with him or to notice his distinctive features lends assurance to his testimony in court and that the absence of corroborative evidence by way of test identification parade would not be material. From the above-mentioned aspect, the evidence of PW 42 and PW 45 has been rightly rejected by the trial court and the High Court as PW 42 is a rickshaw driver who had no opportunity to see closely the appellants whom he took to Rooman Bungalow in the night. So also PW 45's identification of A-1 in court without his participation in the TIP has also no probative value inasmuch as he went to the shop of the witness as one of the customers and there was no specific reason why he should watch A-1 closely. But the same is not the position with PW 29 and PW 34. They were talking to the deceased Rohan Ohol at the time when the appellants came to Rooman Bungalow. Indeed A-1 wished the deceased Rohan who introduced A-1 as Nitin Anil Swargey. Thereafter, A-1 introduced A-2 and A-3 to Rohan Ohol PW 29 and PW 34. They talked together for about 7-8 minutes and on Rohan Ohol's telling them to sit inside the house, they left their soiled shoes on the verandah and entered the house. It can safely be presumed that had they not given the name and description of the appellants at the earliest when their statement was recorded by the police on 24-7-1992, the defence in their searching and lengthy cross-examination would have brought on record omissions and contradictions with reference to their earlier statement given to the police. As such, evidence of identification of the appellants at their trial by the said witnesses even without the corroboration of the identification parade, had been rightly relied upon by the trial court as well as by the High Court. We, therefore, find no illegality in the judgment of the courts below in accepting their evidence of identification.”

Similar is the judgment in State of Maharashtra Versus Suresh (2000) 1 SCC 471 wherein it was observed:

“We remind ourselves that identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is the one who was seen by them in connection with the commission of the crime. The second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence.

It was held in Umesh Chandra v. State of Uttarakhand, (2021) 17 SCC 616: 2021 SCC OnLine SC 689 that test identification parade is not a substantive piece of evidence and is required where the accused was unknown or the witness had a fleeting glance at the accused. It was observed:

“9. A test identification parade under Section 9 of the Evidence Act is not substantive evidence in a criminal prosecution but is only corroborative evidence. The purpose of holding a test identification parade during the stage of investigation is only to ensure that the investigating agency prima facie was proceeding in the right direction where the accused may be unknown or there was a fleeting glance of the accused. Mere identification in the test identification parade therefore cannot form the substantive basis for conviction unless there are other facts and circumstances corroborating the identification.”

This position was reiterated in Kishore v. State of Punjab, 2024 SCC OnLine SC 110 wherein it was observed:

It is true that a test identification parade is not mandatory. The test identification parade is a part of the investigation. It is useful when the eyewitnesses do not know the accused before the incident. The test identification parade is usually conducted immediately after the arrest of the accused. Perhaps, if the test identification parade is properly conducted and is proved, it gives credence to the identification of the accused by the concerned eyewitnesses before the Court. The effect of the prosecution's failure to conduct a test identification parade will depend on the facts of each case.

This position was reiterated in P. Sasikumar v. State of T.N., (2024) 8 SCC 600: 2024 SCC OnLine SC 1652 wherein it was observed at page 606:

“21. It is well settled that TIP is only a part of police investigation. The identification in TIP of an accused is not a substantive piece of evidence. The substantive piece of evidence, or what can be called evidence is only dock identification that is identification made by witness in court during trial….”

Therefore, the Test Identification Parade is not essential in every case and when the witness knew the accused or he had a chance to see the accused, his identification in the Court cannot be doubted. In the present case, the victim’s testimony shows that she had sufficient time to see the accused and notice his features. Hence, the submission that the identification of the accused is suspect in the absence of a previous test identification parade cannot be accepted.

The learned Trial Court had rightly noticed that the disclosure statement made by the accused and consequent recovery also corroborated the version of the victim. ASI-Sohan Lal (PW12) stated that he interrogated the accused. The accused disclosed that he could get the clothes recovered. He led the police to his house from where he got recovered his clothes. The testimony of Vidya Nand (PW9) is corroborated by the statement of Raman Singh (PW7) who stated that the accused made a statement (Ext. PW2/A) that he could get his clothes recovered. He led the police to his house and got a shirt and trousers recovered. It was suggested to this witness in the cross-examination that he wanted to engage the accused, which shows that he had no enmity with the accused and there is no reason to discard his testimony. He stated in his cross-examination that the accused brought a red shirt and brown trousers. The victim had specifically mentioned in her examination in chief that the accused was wearing a red shirt. This circumstance corroborates the victim’s version regarding the identity of the accused.

Other witnesses reached the spot after the incident had taken place and they cannot depose anything about the incident and it is not necessary to refer to their testimonies.

Therefore, the learned Trial Court had rightly held that the testimony of the victim was believable and was corroborated by the medical evidence as well as the other circumstances on record. The accused had inflicted injuries on the forehead, cheekbone, below the right ear, midline of the neck, chin right ear lobule auricular region and the left hand. In the opinion of the medical officer, the injuries were dangerous to life. The injury by Darat was caused on the neck, which is a vital part and had the victim been dead, the accused would have been guilty of murder since he had inflicted an injury on the vital part of the body with a deadly weapon namely a sharp-edged darat. Therefore, the learned Trial Court had rightly convicted the accused for the commission of an offence punishable under Section 307 of IPC.

The victim also stated that the accused felt her breasts and when she resisted the accused gave her beatings. This proves the ingredients of Section 354 of IPC. Thus, the learned Trial Court had rightly convicted the accused of the commission of an offence punishable under Section 354 of IPC.

Learned Trial Court sentenced the accused to life imprisonment because as per the learned Public Prosecutor, the accused was involved in another crime for the commission of offences punishable under Sections 304 and 376 of IPC. Section 298 of Cr.P.C. provides that the previous conviction or acquittal may be proved by certified copy under the hands of the officer having the custody of the record of the Court, in which conviction or acquittal was held or a certificate signed by the officer in charge of the Jail, in which, the punishment or any part thereof was undergone or by the production of the warrant of commitment together with the identity of the accused. In the present case, no such certificate was produced. The learned Public Prosecutor merely stated that the accused was involved in the commission of offences punishable under Sections 302 and 376 of IPC and the learned Trial Court believed him. There is nothing on record to show that the accused was convicted by the Competent Court; hence, in these circumstances, the learned Trial Court had acted upon irrelevant consideration, while sentencing the accused.

Section 307 of IPC provides the punishment for a term which may extend to ten years and if the hurt is caused, imprisonment for life, thus, imprisonment for life is the maximum imprisonment that can be imposed. Since the maximum imprisonment was imposed on irrelevant consideration, therefore, the same is to be interfered with.

The learned Trial Court noticed that the accused was a poor person and he had an old mother. Keeping in view the number of injuries caused by the accused to a lone woman in the jungle, the accused does not deserve any leniency but he also does not deserve the maximum imprisonment. Balancing the circumstances of the case and the family circumstances of the accused noticed by the learned Trial Court, the sentence of life imprisonment is reduced to imprisonment for 10 years. Learned Trial Court had awarded the sentence of two years for the commission of an offence punishable under Section 354 of IPC, which is not excessive and no interference is required with it.

Therefore, in view of the above, the present appeal is partly allowed and the sentence of imprisonment for life awarded by the learned Trial Court for the commission of an offence punishable under Section 307 of IPC is reduced to 10 years of rigorous imprisonment. The accused will be entitled to the set-off and both the substantive sentences of imprisonment shall run concurrently. Subject to this modification, the rest of the judgment of the learned Trial Court is upheld.

Record of learned Trial Court be returned forthwith.