DAMODARAM SANJIVAYYA NATIONAL LAW

DJFJFJFJJJJJJJJ UNIVERSITY
JDDFJFJJJVISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

EXAMINATION OF WITNESSES BY POLICE

SUBJECT

CRIMINAL PROCEDURE CODE

NAME OF THE FACULTY

MS. SOMA BATTACHARJYA

Name of the Candidate : G.T.GURU CHARAN REDDY

Roll No. : 2018032

Semester : 4TH

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 ACKNOWLEDGMENT

I would sincerely like to put forward my heartfelt appreciation to our respected Criminal
Procedure Faculty, Ms. Soma Battacharjya for giving me this golden opportunity to take up
this project in terms of the case analysis regarding “EXAMINATION OF WITNESSES BY
POLICE”. I have tried my best to collect information about the project in various possible ways
to depict clear picture about the given project topic. It would help me in building up career in the
criminal law and to understand the procedural aspects too.

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 TABLE OF CONTENTS

1.INTRODUCTION.......................................................................................................................

2. Examination of witnesses by police...........................................................................................

3.What is a contradiction?.............................................................................................................

4.What is an Omission? ................................................................................................................

5. Non-production of Independent witnesses..............................................................................

6. How to know whether it is a contradiction or an omission or not?......................................

7. The statement of injured which was recorded as a dying declaration which, consequent
upon his survival, is to be treated as a statement:-....................................................................

8. If signature of a person obtained on his statement recorded under section 161 of Cr.P.C,
whether such statement should be ignored?..............................................................................

9. Improvements in the evidence of prosecution witnesses:-.....................................................

10. Even honest and truthful witnesses may differ in some details unrelated to the main
incident:-.........................................................................................................................................

11. A statement under Section 161 Cr. P. C is not a substantive piece of evidence:–.............

12. Evidentiary value of 161 statement if signed by witness.....................................................

13. Delay in recording 161 statements and its effects Delay in recording of statement of
witnesses – .....................................................................................................................................

14. CASES RELATED TO RELAVANCE OF STATEMENT OF 161..................................

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 SYNOPSIS

INTRODUCTION

The object of this section 161 cr.p.c recording the statements of the witnesses material in respect
of commission of the offence. signing of statement under section 161 is prohibited under section
162., it is prerogative of police officer to record the statement of a witness examined.

Statement in its dictionary meaning is the act of stating or reciting. The term statement is not
defined anywhere in the Act. However, it has got whole connotations. Generally, statements are
recorded in Object and purpose of section 161 is to collect evidence regarding commission of an
offence by examcriminal procedure code in section 161 and 162. under section 164 of Crpc the
confession statements of accused will be recorded. Section 161 Code of Criminal Procedure,
1973 (for short ‘Cr.P.C.’) titled “Examination of witnesses by police” provides for oral
examination of a person by any investigating officer when such person is supposed to be
acquainted with the facts and circumstances of the case. The purpose for and the manner in
which the police statement recorded under Section 161 Cr.P.C can be used at any trial are
indicated in Section 162 Cr.P.C.

‘Civilized people are generally insensitive when a crime is committed even in their presence.
They withdraw both from the victim and the vigilante. They keep themselves away from the
Court unless it is inevitable.’ (Ref: Appabhai Vs. State of Gujrat AIR 1988 SC 696). This
observation was made by the Hon’ble Apex Court when prosecution could not produce
independent witnesses in that case. In the process of investigation, under Section 161 of Cr.P.C,
any Police officer making an investigation is accredited and empowered to examine orally any
person supposed to be acquainted with the facts and circumstances of the case and to records
statement of witnesses. These statements are predominantly called 5 as section 161 Cr.P.C
statements. This task is to gather evidence against accused. After filing charge sheet, these
statements will also be perused by the Court to take cognizance of an offence. Such a statement
can only be utilized for contradicting the witness in the manner provided by Section 145 of the
Evidence

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RESEARCH QUESTIONS

a. Whether the section 161of CrPc is in proper implementation in the present soceity?

LITERATURE REVIEW

a. The Code of Criminal Procedure, 1973.

b. www.heinonline.com
c. www.scc.com

OBJECTIVE OF THE STUDY

 To critically analyse the provisions in the Code of Criminal Procedure relating to

section 161 of CRPC
 The procedure adopted for the Examination of witnesses by police under Cr.P.C.
 To have a panoramic view on the latest amendments in the sec 161
 RESEARCH METHODOLOGY

i. Nature of the Study: The study is doctrinal type. It is a studied under the concepts of
descriptive, analytical and explanatory forms of research.
ii. Sources:-

a. Primary Sources : Cr.P.C. Bare Code,1973

b. Secondary Sources: Books, Journals, Articles etc.

iii. Mode of citation: Blue book 19th edition.

SCOPE OF THE STUDY

The present paper represents a holistic view on the provisions of statements given by witnesses
under 161 statement and relevance of the statements

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SIGNIFICANCE OF THE STUDY

The paper shows the utilization of the provisions related to section 161 of CrPc and
procedures laid down under this section and how the witnesses should be examined by the
police authority

1.INTRODUCTION

Central Government Act

Section 161 in The Code Of Criminal Procedure, 1973

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161. Examination of witnesses by police.

(1) Any police officer making an investigation under this Chapter, or any police officer not
below such rank as the State Government may, by general or special order, prescribe in this
behalf, acting on the requisition of such officer, may examine orally any person supposed to be
acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer truly all questions relating to such case put to him by
such officer, other than questions the answers to which would have a tendency to expose him to a
criminal charge or to a penalty or forfeiture.

(3) The police officer may reduce into writing any statement made to him in the course of an
examination under this section; and if he does so, he shall make a separate and true record of the
statement of each such person whose statement he records.

‘Civilized people are generally insensitive when a crime is committed even in their presence.
They withdraw both from the victim and the vigilante. They keep themselves away from the
Court unless it is inevitable.’ 1(This observation was made by the Hon’ble Apex Court when
prosecution could not produce independent witnesses in that case. In the process of investigation,
under Section 161 of Cr.P.C, any Police officer making an investigation is accredited and
empowered to examine orally any person supposed to be acquainted with the facts and
circumstances of the case and to records statement of witnesses. These statements are
predominantly called as section 161 Cr.P.C statements. This task is to gather evidence against
accused. After filing charge sheet, these statements will also be perused by the Court to take
cognizance of an offence. Such a statement can only be utilized for contradicting the witness in
the manner provided by Section 145 of the Evidence Act.

Statement in its dictionary meaning is the act of stating or reciting. The term statement is not
defined anywhere in the Act. However, it has got whole connotations. Generally, statements are
recorded in criminal procedure code in section 161 and 162. under section 164 of Crpc the
confession statements of accused will be recorded. Section 161 Code of Criminal Procedure,
1973 (for short ‘Cr.P.C.’) titled “Examination of witnesses by police” provides for oral
examination of a person by any investigating officer when such person is supposed to be
acquainted with the facts and circumstances of the case. The purpose for and the manner in
which the police statement recorded under Section 161 Cr.P.C can be used at any trial are

1
Ref: Appabhai Vs. State of Gujrat AIR 1988 SC 696).
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indicated in Section 162 Cr.P.C. As per section 164(1) of Crpc, Judicial Magistrate or
Metropolitan Magistrate whether or not having jurisdiction in the case can record any statement
or confession made to him in the course of investigation. Section 164(5) of code empowers
judicial magistrate to record statement (other than confession statement) which is in the opinion
of Magistrate a best titled to the circumstances of the case.

Scope and relevance of statements under section 161 of CR.P.C. Object and purpose of
section 161 is to collect evidence regarding commission of an offence by examining and
recording the statements of the witnesses material in respect of commission of the offence.
signing of statement under section 161 is prohibited under section 162., it is prerogative of police
officer to record the statement of a witness examined.

2. Examination of witnesses by police

1. Any police officer making an investigation under this Chapter, or any police officer not below
such rank as the State Government may, by general or special order, prescribe in this behalf,
acting on the requisition of such officer, may examine orally any person supposed to be
acquainted with the facts and circumstances of the case.

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2. Such person shall be bound to answer truly all questions relating to such case put to him by
such officer, other than questions the answers to which would have a tendency to expose him to a
criminal charge or to a penalty or forfeiture.

3. The police officer may reduce into writing any statement made to him in the course of an
examination under this section; and if he does so, he shall make a separate and true record of the
statement of each such person whose statement he records.

Provided that statement made under this sub-section may also be recorded by audio-video
electronic means.

Provided further that the statement of a woman against whom an offence under section 354,
section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section
376B, section 376C, section376D, section 376E or section 509 of The Indian Penal Code is
alleged to have been committed or attempted, shall be recorded, by a woman police officer or
any woman officer. ‘Civilized people are generally insensitive when a crime is committed even
in their presence. They withdraw both from the victim and the vigilante. They keep themselves
away from the Court unless it is inevitable.’2. This observation was made by the Hon’ble Apex
Court when prosecution could not produce independent witnesses in that case. In the process of
investigation, under Section 161 of Cr.P.C, any Police officer making an investigation is
accredited and empowered to examine orally any person supposed to be acquainted with the facts
and circumstances of the case and to records statement of witnesses. These statements are
predominantly called 5 as section 161 Cr.P.C statements. This task is to gather evidence against
accused. After filing charge sheet, these statements will also be perused by the Court to take
cognizance of an offence. Such a statement can only be utilized for contradicting the witness in
the manner provided by Section 145 of the Evidence. The statements of witnesses recorded by
police under section 162 Crpc during investigation cannot be used for seeking corroboration or
assurance for the testimony of a witness in court. It may be made clear that if the statements
recorded by the police used by the party it could be used only for contradicting the prosecution
witnesses and for no other purpose. Such statements cannot be used for seeking corroboration or
assurance for the testimony of the witnesses in court.

3.What is a contradiction?

In case of a witness testifies before the court that a certain fact is existed without stating same
before police; it is a case of conflict between the testimony before the court and statement made
before the police. This is a contradiction. Therefore, statement before the police can be used to
contradict his testimony before the court. In Appabhai .Vs. State of Gujrat3, The Hon’ble Apex
Court has observed as 7 under: “The Court while appreciating the evidence must not attach
2
( Appabhai Vs. State of Gujrat AIR 1988 SC 696)
3
AIR 1988 S.C. 694 [1988 Cri.L.J. 848]

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undue importance to minor discrepancies. The discrepancies which do not shake the basic
version of the prosecution case may be discarded.

4.What is an Omission?

An omission is either skip or slip, it means ‘exclusion’ or ‘leaving out’. If a certain fact is
testified by a witness in his Examination-in-Chief’, such fact, which is testified in Court, had
been omitted to state before police, it is called an ‘Omission’. Now, it is to be tested by the Court
whether it is a material omission or not. If it is a material omission, it amounts material
contradiction. The Hon’ble Apex Court opines that relevant and material omissions amount to
vital contradictions, which can be established by cross- examination and confronting the witness
with his previous statement. (4However, as was held in Ponnuswamy Chetty v. Emperor 5‘a bare
omission cannot be a contradiction’. The rules of evidence laid down in Sections 145, 154 and
157 are of paramount importance to practitioners. Contradictions in the previous statements in
writing of a witness is a very powerful weapon in the hands of the adverse party. A contradiction
may be such as to demolish the case made out in the examination-in-chief. In a criminal trial,
statements of witnesses are recorded by the Police under Section 161 of the Cr. P. Code, copies
of which are supplied to the accused. These statements can be used by the accused for proving
contradictions as laid down in Sec. 162 Cr.P.C. The expression, "Contradiction" was a subject of
great legal controversy. During the investigation police record statements of witness by
examining him, which are called 161 statements or case diary statements. Purpose of recording
statement is to 8 gather evidence and preserve it unless until it was put to trail. While police file
charge sheet they supply copies of documents to accused along with copies of 161 statements as
required under section 207 of Cr.P.C. On filling of charge sheet court after considering the
contents of charge sheet and 161 statements only take cognizance against accused. After accused
put in trial on framing of charges where in defence can use those 161 statements to test
truthfulness of statements as it provided under section 145 of Indian Evidence Act.

5. Non-production of Independent witnesses:

It is settled law of criminal jurisprudence that conviction can be based on the testimony of
official witnesses and it is not necessary that in each and every case, public persons must be
joined in investigation. In the case of “Appabhai Vs. State of Gujrat” AIR 1988 SC 696, it has
been held as under, “It is no doubt true that the prosecution has not been able to produce any
independent witness to the murder that took place at the bus stand. There must have been several
of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground
alone. Civilized people are generally insensitive when a crime is committed even in their

4
Ref; Tahsildar Singh .Vrs..State of U.P., 1959 SCR Supl. (2) 875; AIR 1959 1012 (1026)).
5
(A.I.R. 1957 All. 239),

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presence. They withdraw both from the victim and the vigilante. They keep themselves away
from the Court unless it is inevitable. They think that crime like civil dispute is between two
individuals or parties and they should not involve themselves. This kind of apathy of the general
public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities.
One cannot ignore this handicap with which the investigating agency has to discharge its duties.
The Court, therefore, instead of doubting the prosecution case for want of independent witness
must consider the spectrum or the prosecution version and then search for the nugget of truth
with due regard to probability, if any, suggested by the accused.”

6. How to know whether it is a contradiction or an omission or not?

” Statement ” in its dictionary meaning is the act of stating or reciting. Prima facie a statement
cannot take in an omission. A statement cannot include that which is not stated. But very often to
make a statement sensible or self-consistent, it becomes necessary to imply words which are not
actually in the statement. Though something is not expressly stated, it is necessarily implied from
what is directly or expressly stated. To illustrate: ‘ A’ made a statement previously that he saw ‘
B ‘ stabbing ‘ C ‘ to death; but before the Court he deposed that he saw ‘B’ and ‘D’ stabbing ‘ C’
to death: the Court can imply the word “only ” after ‘ B ‘ in the statement before the police.
Sometimes a positive statement may have a negative aspect and a negative one a positive aspect.
Take an extreme example : if a witness states that a man is dark, it also means that he is not fair.
Though the statement made describes positively the colour of a skin, it is implicit in that
statement itself that it is not of any other colour. (See Tahsildar Singh’s case (supra)).

7. The statement of injured which was recorded as a dying declaration which, consequent
upon his survival, is to be treated as a statement:-
In Sunil Kumar and others Vs. State of M.P. ( AIR 1997 SC 940), in this case the Supreme
Court, while dealing with the statement of injured witness, which was then recorded as a dying
declaration by the Magistrate, observed that the statement of injured which was recorded as a
dying declaration which, consequent upon his survival, is to be treated as a statement under
Section 164 of the Criminal Procedure and can be used for “corroboration or contradiction”,
unlike the statement under Section 161, which can be used only for “contradiction”.

8. If signature of a person obtained on his statement recorded under section 161 of Cr.P.C,
whether such statement should be ignored?
Basically, signature of witness on section 161 of Cr.P.C statement is not necessary. However, it
is not the law that whenever the signature of the person is obtained in his statement recorded in
the course of investigation that statement should be ignored. The law on the point informs me
that in such situation the Court must be cautious in appreciating the evidence that the witness
who gave the signed statement may give in Court (See Tilkeshwar Vs. Bihar State (AIR 1956 SC

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238), State of U.P VS. M.K Anthoni (AIR 1985 SC 48), (1985) 1 SCC 505.and State of
Rajasthan Vs. Teja Ram and Ors. (AIR 1999 SC 1776). It has been held that obtaining the
signature of the witness in the statement recorded under Sec.161 of the Code does not render it
inadmissible under Sec.161 of the Code but, it may affect the weight to be attached to the
evidence of such witness. Notwithstanding that the statement is signed, it continues to be a
statement recorded under Sec.161of the Code, going by the said decisions. (See also M.
Sundaramoorthy vs State Of Kerala, (2011), Hon’ble Kerala High Court, Crl.MC.No. 464 of
2011).

9. Improvements in the evidence of prosecution witnesses:-

The Court disbelieves the evidence of prosecution witness, if there are improvements in the
deposition of such witness made over his statement recorded under section 161 of Cr.P.C. In the
cases of Ashok Vishnu Davare Vs. State of Maharasthra, (2004) 9 SCC 431, Radha Kumar v.
State of Bihar (now Jharkhand) [(2005) 10 SCC 216] and Sunil Kumar Sambhudaval Gupta (Dr.)
and Others Vs. State of Maharashtra, (2010) 13 SCC 657, in which the Hon’ble Supreme Court
has not believed the evidence of prosecution witnesses on account of improvements in the
deposition of the witnesses made over their statements recorded under Section 161, Cr.P.C. (See
also Baldev Singh vs State Of Punjab, , criminal appeal No. 1303 of 2005, [2013], Baldev Singh
vs. State of Punjab (1990 (4) SCC 692 = AIR 1991 SC 31)). However, in Arjun and others ..Vs..
State of Rajsthan, AIR 1994 SC 2507, The Hon’ble Court has held that – A little bit of
discrepancies or improvement do not necessarily demolish the testimony. Trivial discrepancy, as
is well known, should be ignored. Under circumstantial variety the usual character of human
testimony is substantially true. Similarly, innocuous omission is inconsequential.

10. Even honest and truthful witnesses may differ in some details unrelated to the main
incident:-
In State of U.P. Vs. M.K. Anthony AIR 1985 SC 48, the Hon’ble Apex Court laid down certain
guidelines in this regard, which require to be followed by the courts in such cases. The Court
observed as under :- technical approach by taking sentences torn out of context here or there
from the evidence, attaching importance to some technical error committed by the investigating
officer not going to the root of the matter would not ordinarily permit rejection of the evidence as
a whole. If the court before whom the witness gives evidence had the opportunity to form the
opinion about the general tenor of evidence given by the witness, the appellate court which had
not this benefit will have to attach due weight to the appreciation of evidence by the trial court
and unless there are reasons weighty and formidable it would not be proper to reject the evidence
on the ground of minor variations or infirmities in the matter of trivial details. Even honest and
truthful witnesses may differ in some details unrelated to the main incident because power of
observation, retention and reproduction differ with individuals. Cross examination is an unequal
duel between a rustic and refined lawyer.”

11. A statement under Section 161 Cr. P. C is not a substantive piece of evidence:– As has
been held In Rajendra singh vs. State of U.P – (2007) 7 SCC 378, “a statement under Section

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161 Cr. P. C is not a substantive piece of evidence. In view of the provision to Section 162 (1)
CrPC, the said statement can be used only for the limited purpose of contradicting the maker
thereof in the manner laid down in the said proviso. Therefore, the High Court committed a
manifest error of law in relying upon wholly inadmissible evidence in recording a finding that
Respondent 2 could not have been present at the scene of commission of the crime.”

12. Evidentiary value of 161 statement if signed by witness.

Basically, the signature of witness on section 161 of Cr.P.C., statement is not necessary. The
practice of getting signatures of the witnesses on 161 statements is expressly prohibited under
section 162 of Cr.P.C. violation of this provision may sometimes diminish the value of the
testimony of the witnesses when they come to court. However, it is not the law that whenever the
signature of the person is obtained in his statement recorded during an investigation that
statement should be ignored. But in such situation the court must be cautious in appreciating the
evidence that the witness who gave the singed statement may give in court. In decisions State of
U.P Vs MK Anthony 6 and State of Rajasthan Vs Teja Ram and others 7 , the apex court observed
that section 162 of Cr.P.C., does not provide that, evidence of a witness given in the court
becomes inadmissible, if is found that the statement of witnesses recorded in the course of
investigation was signed of the witness at the instance of the investigating officer. It merely puts
court on caution and may necessitate in depth scrutiny of the evidence.

13. Delay in recording 161 statements and its effects Delay in recording of statement of
witnesses –

Does not necessarily discredit their testimony, if they are cogent and credible and delay is
explained to the satisfaction of Court - The effect of delay in recording statements of witnesses
under section 161 of the Code of Criminal Procedure was examined by the Hon’ble Supreme
court in the case of Harbeer singh vs sheeshpal , where in honourable apex court observed that
delay in recording of 14 statements of the prosecution witnesses under Section 161 Cr.P.C.,
6
(1985 SCC (Crl) 105)
7
( AIR 1999 SC 1776)

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although those witnesses were or could be available for examination when the Investigating
Officer visited the scene of occurrence or soon thereafter would cast a doubt about prosecution
case. It is settled law that every delay in examining witness not fatal subject to explanation given
by investigating officer to the satisfaction of court. In case Ganesh Bhagvan Vs state of
Maharastra 8the honourable court observed that though it is a wellsettled law that delay in
recording the statement of the witnesses does not necessarily discredit their testimony, but if
those witnesses were or could be available for examination when the Investigating Officer
visited the scene of occurrence or soon thereafter, and even then, the delay has occurred, it would
cast a doubt upon the prosecution’s case.

14. CASES RELATED TO RELAVANCE OF STATEMENT OF 161

Delayed examination of witness

Bodhraj v State of Jammuand Kashmir, AIR 2002 SC3164

In a decision in Bodh Raj @ Bodha and Ors. v. State of Jammu and Kashmir, it has been observed that, it
would be difficult in some cases to positively establish that, deceased was last seen with Accused, when

8
2005 DMC 445

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there is a long gap and possibility of other persons coming in between exists. In absence of any other
positive evidence to conclude that, Accused and deceased were last seen together, it would be
hazardous to come to a conclusion of guilt in those cases. 

In present case, there is positive evidence from ocular testimony of PW-2, son of deceased who has
narrated having seen Accused coming to their house, knocking the door, calling his mother in dead
hours of night and due to knock on door, he woke up and could recognize Accused from his voice, and
Accused having held out threat with dire consequence warning him not to shout, his mother going out
from house with Accused out of fear and finding his mother lying dead on verandah of house with
bleeding injury on her mouth just on next day morning at dawn. Thus, evidence of PW-2 stood test of
cross-examination and his testimony goes uncontroverted and is trustworthy in so far theory of last seen
together of Accused with deceased applies and comes to play in instant case. 

Case was instantly registered with police station giving rise to investigation which resulted in submission
of charge-sheet is also a pointer to fact that, there was a narrow gap between time when deceased was
seen together with Accused alive and time when deceased was found lying with injuries on verandah by
her own son just on the next day morning at dawn. 

Thus, Court was right in arriving at a decision that, there was close proximity of time between accused
and Appellant being seen together at 2 a.m. on 17th February, 1997 and recovery of dead body in
morning at 5 a.m. It was necessary for accused to have offered reasonable explanation as to what had
happened to deceased with whom he had come out from the room in previous night. In absence of any
reasonable explanation on part of Accused, there is only conclusion to be arrived at is that, it was
Accused alone who had abducted deceased and had killed her in absence of her husband. There is no
ground in present appeal to interfere into impugned judgment.

Delay in sending statements of witness to Magistrate

Abu Takik v State, AIR 2010 SC 2119

 the learned senior counsel that the statements of PWs 2 to 4 (eyewitnesses), though purported to
have been recorded on 29th March, 2002, had reached the Court only on 11.4.2002 which
according to him makes the whole prosecution story doubtful. In fact, PW30-the Investigating
Officer explained that in the case of murder of Sultan Meeran on 26th March, 2002, and the

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murder of Murugesan (deceased) on 28th March, 2002 in succession, the entire city of
Coimbatore and surrounding areas were in a highly disturbed state and widespread bandobasth
was arranged in surrounding areas. Adverting to this aspect of the matter, the High Court in clear
and categorical terms, upon reappreciation of the evidence, held that in such a situation, no one
could find fault with the Investigating Officer in not sending the statements of PWs 2, 3 and 4 to
the Court before 11th April, 2002.

Mere delay in sending the statements of PWs 2 to 4 per se would not make their evidence
unacceptable unless something glaring is brought to our notice to doubt their very presence at the
scene of offence. As rightly pointed out by the High Court, the evidence of PWs 2 to 4 is so
clinching, wherein they have stated in clear and categorical terms that three persons joining
together stabbed one individual. That portion of the evidence remains unshaken. It is true that the
assailants were not previously known to PWs 2 to 4. But they have later identified the appellants
as the persons who stabbed the deceased.

 Learned senior counsel relied upon the judgment of this Court in Thulia Kali Vs. The State of
Tamil Nadu1 and Marudanal Augusti Vs. State of Kerala2 in support of his submission that the
delay in sending the statements recorded under Section 161, Cr.P.C. to the Court is fatal to the
prosecution's case. Thulia Kali deals with importance of timely despatch of the first information
report which is an extremely vital and valuable piece of evidence for the purpose of
corroborating oral evidence adduced at the trial. In Marudanal Augusti, this Court on the facts
held that there was a delay of as many as 28 hours in submitting FIR to the Special (1972) 3 SCC
393 (1980) 4 SCC 425 Magistrate which remained unexplained by the Investigating Officer in
spite of being questioned. The Court came to the conclusion that there was no proper explanation
as to why there was delay in sending the FIR to the Court. We fail to appreciate as to how those
judgments would help the defence in this case since there is no delay in sending the FIR in the
present case. There is a delay in sending the statements of PWs 2 to 4 recorded under Section
161, Cr.P.C. There is a clear explanation available on record that the Investigating Officer was
also in charge of maintaining law and order in the area that got vitiated after two murders in
succession leading to a lot of commotion and communal strife. There is no reason to reject the
explanation as to why the statements recorded under Section 161 Cr.P.C. could not be promptly
despatched to the Court. It was obviously for the reasons beyond control of the Investigating

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Officer. Nothing is further suggested to accept the theory propounded by the learned senior
counsel. It is nobody's case that such statements were not recorded by the Investigating Officer at
all. The suggestion made in this regard to PWs 2 to 4 was denied by them.

11. The learned senior counsel placed heavy reliance on judgment of the Madras High Court in
Karunakaran Jabamani Nadar In re.3 where the Madras High Court underscored the importance
of speedy despatch of the documents, such as the original report, the printed form of FIR, inquest
report and statement of witnesses recorded during inquest and the statements of witnesses
recorded underSection 161(3) of Cr.P.C. There is no quarrel with that proposition and the
importance of requirement of sending the vital documents to the Court without any delay. But
the delay may occur due to variety of facts and circumstances. Delay in despatch of the said
documents by itself may not be fatal to the prosecution in each and every case. The question as
to what is the effect of delay in sending the vital documents to the Court may have to be assessed
and appreciated on the facts and circumstances of each case. It is not possible to lay down that
delay in despatch of the vital documents in each and every case defeats the prosecution's case.

12.We do not find any material on record to accept the submissions made during the course of
hearing of this appeal that PW 20, did not own any lorry with him so as to be sold and the said
lorry was not stationed nearby the scene of occurrence. We do not find any reason to disbelieve
the statement of PWs 8 and 20 in this regard which is clear, categorical and forthcoming which
we 1974 L.W.(Crl) 1190 have discussed in the preceding paragraphs. The submission is
accordingly rejected.

13. We may have to deal with yet another submission made by the learned senior counsel for the
appellants that the investigation was not fair as there were many missing links in the process of
investigation. This submission was made by the learned counsel contending that the investigation
does not reveal as to how the Investigating Officer came to know about the presence of PWs 2 to
4 at the scene of occurrence and for recording their statements in that regard. This Court in State
of Karnataka Vs. K. Yarappa Reddy4 held that "even if the investigation is illegal or even
suspicious the rest of the evidence must be scrutinized independently of the impact of it.
Otherwise the criminal trial will plummet to the level of the investigating officers ruling the
roost. ... Criminal justice should not be made a casualty for the wrongs committed by the
investigating officers in the case. In other words, if the court is convinced that the testimony of a

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witness to the occurrence is true, the Court is free to act on it albeit the investigating officer's
suspicious role in the case". The ratio of the judgment in that case is the complete answer to
the (1999) 8 SCC 715 submission made by the learned senior counsel for the appellants.

14.One more submission of the learned senior counsel was that the prosecution failed to establish
the motive for committing the crime by the appellants. In the light of the direct evidence of PWs
2 to 4, and 8 and 20, the motive part has no significance. Even otherwise there is enough material
available on record in the present case that the motive for the present murder was in retaliation to
the murder of one Sultan Meeran allegedly by a group of persons belonging to an outfit of which
the deceased was stated to be a member.

15.We do not find any reason whatsoever to interfere with the concurrent finding of fact arrived
at by the Courts below in order to convict the appellants for the offence punishable under Section
302, IPC. We do not find any reason or justification to disbelieve the evidence of PWs 2, 3 and 4
along with the evidence of PWs 8 and 20 and the medical evidence. Once the evidence of these
witnesses is found acceptable, the inevitable consequence is to confirm the conviction of the
appellants under Section 302, IPC. The High Court in its elaborate judgment critically assessed
and analyzed every nuance of the evidence and found a clear case against the appellants. The
reappreciation of the evidence by the appellate Court did not result in any manifest injustice. We
have looked into the evidence to satisfy ourselves as to whether the Courts below have
committed any manifest error in appreciating the evidence available on record and on such
scrutiny, we find that the Courts below did not commit any error whatsoever in accepting the
evidence available on record. In the circumstances, we hold that the appellants miserably failed
to make out any case requiring our interference under Article 136 of the Constitution.

How the statements under S. 161 is to be recorded? What if it is not recorded and first time
examined in the court?

 The prosecution case, shortly stated, is that on 9/10-2-1984 at about midnight time while the
informant Susil Kumar Dandpat was sleeping in the outer varandah of their house in village
Machilapada under Badasahi Police station, District Meyurbhanj and the other inmates of the
house including Sirish Chandra Dandpat (P.W. 1) and Sunilkumar Dandpat (P.W. 14) were

18 | P a g e
sleeping inside the house bolting the entrance door from inside, there was barking of dogs for
which P.W. 5 woke up and found that there was flashing of torch lights at some distance. After
proceeding for some times when P.W. 5 asked in a raised voice as to who were focussing the
torch lights, some people rushed at him and at their sight he ran towards his house shouting on
the way to open the entrance door. Before the miscreants could approach him, the entrance door
was opened and he entered into the house and bolted the door from inside. The miscreants
dashed against the entrance door, but the same did not open inasmuch as the inmates of the house
kept pressed the door leaves from inside. The miscreants also made attempts to make their entry
into the house by breaking open a window but failed inasmuch as a folded table was kept against
the broken open place of the window and there was pelting of glasses at the miscreants by the
inmates of the house who did so in spite of pelting of stones and throwing of arrows by the
miscreants into the house. On hearing the shouts raised by the inmates of the house, when
villagers assembled near the spot, the culprits finding themselves to have been outnumbered took
to their heels. Before their departure, they could injure the villagers Pratap Chandra Dandpat
(P.W.3), Sadasiv Sahu (P.W.4) and Ajay Kumar Dandpat (P.W.12). After departure of the
miscreants, F.I.R. (Ext. 2) was lodged at the Police station in the same night at 3 a.m. and
investigation commenced. In course of investigation, stones and arrows thrown by the culprits
were seized from the house in question and a test identification parade was conducted in which
all the six petitioners were identified as the culprits who attempted to have committed dacoity in
the house of P.W. 5. Ultimately, the present petitioners along with one Gagan Bhakta, (since
acquitted) were tried for the offence Under Section 397, IPC.

2. At the trial, the prosecution examined 15 witnesses of whom P.W. 1, P.W. 5 and P.W. 14 were
the inmates of the house; P.W. 2 Radha Mohan Naik and P.W. 6 Bhagaban Sahu were the
witnesses to the seizure of the articles from the house in question. P.W. 4 Sadasiv Sahu, P.W. 7
Ashok Kumar Dandpat and P.W. 12 Ajay Kumar Dandpat were the villagers who along with
others saw the culprits and foiled their attempt to committing dacoity; P.W. 8 and 9 are the
Medical Officers who examined the injured persons (P.Ws. 3, 4 and 12) and also the first
petitioner Karmu Bhakta and found injuries on their persons; P.W. 10 is another Medical Officer
who extracted an arrow from the person of P.W. 4 and handed over the same to the Investigating
Officer; P.W. 13 is the Magistrate who conducted the test identification parade and P.Ws. 11 and
13 are the Police Officers who took some part or the other in the investigation of the case.

19 | P a g e
The trial court found that the first petitioner Karmu, the third petitioner Sarthak and the fifth
petitioner Raju Katual had been duly identified by P.Ws. 5, 12 and 14 as the culprits both in the
test identification parade as well as in court; the second petitioner Chandra had been duly
identified as one of the culprits by P.Ws. 5 and 14 both in the test identification parade as well as
in court; the sixth petitioner Jatindra had been duly identified as one of the culprits by P.Ws. 7
and 12 both in test identification parade as well as in court and the fourth petitioner Gopal had
been identified only by P.W. 14 as one of the culprits both in test identification parade as well as
in court. So, relying on the evidence of P.Ws. 5, 7, 12 and 14, the trial court convicted the six
petitioners Under Section 397, IPC and sentenced each of them to undergo rigorous
imprisonment for seven years, while acquitting the accused Gagan Bhakta. In appeal, the learned
Sessions Judge, Mayurbhanj, Baripada converted the conviction Under Section 397,IPC to one
Under Section 395, IPC. and reduced the sentence to five years rigorous imprisonment in respect
of each of the petitioners. Being aggrieved by such judgment and order, the present revision has
been filed.

3. The concurrent finding of fact that there was an attempt to commit dacoity in the house of
P.W. 5 in the night in question is not assailed before me by Mr. P. K. Dhal, learned counsel
appearing for the petitioners. It is, however, contended by him that the identifying witnesses
having asserted that they had seen the petitioners with the help of electric light burning in the
house of P.W. 5 and also with the aid of flashing of torch lights by the petitioner and their
companions hither and thither and as such they could identify them both in the test identification
parade as well as in court, their evidence should not have been believed by the courts below
because neither electric bulb nor any torch light of the petitioners has been seized, by the
Investigating Officer at the time of investigation. This contention relates to appreciation of
evidence of the identifying witnesses and since appreciation of evidence is normally not
permissible in revision like the one in hand, I refrain myself to evaluate such contention
particularly when perversity in appreciation of evidence by the courts below is not brought to my
notice. As such, the contention is rejected as unsubstantial.

4. It is then contended by Mr. Dhal for the petitioners that P.W. 14 having not been examined at
the time of investigation, his evidence in court identifying the petitioner Gopal as one of the
culprits is inadmissible in evidence and if such evidence is left out of consideration then his

20 | P a g e
evidence of identification in the test identification parade, being not substantive evidence, could
not be relied upon for convicting Gopal. There is no pleading in the revision-petition that P.W.
14 had not been examined at the time of investigation. My attention is sought to be invited to the
evidence of P.W. 14 himself in support of such factual position, but I am afraid if a court of
revision can go through such evidence in the absence of any pleading. Even assuming for the
sake of argument that P.W. 14 was not examined at the time of investigation, his evidence cannot
be said to be inadmissible in the absence of any provision to that effect in Section 161 of the
Code of Criminal Procedure, 1973 or in the Evidence Act. All that that can be said is that when a
witness examined in court whose statement Under Section 161, Cr. P.C. had not been recorded at
the time of investigation, the evidentiary value to be attached to the evidence of such witness has
to be looked into and if it would be found that prejudice had been caused to the accused then the
evidence of such witness may not be acted upon, otherwise not. I am supported in my view by a
decision in Tilkeshwar Singh v. The State of Bihar, AIR 1956 SC 238 : (1956 Cri LJ 441). In this
case, P.W. 14 had been cited as a witness in the charge-sheet and he was examined in court and
both the courts below have relied on his evidence obviously for the reason that no prejudice had
been caused to the petitioners: As such, the contention must fail.

5. It is then contended by Mr. Dhal for the petitioners that the other inmates of the house having
not identified the petitioner Gopal as one of the culprits, it would not be safe to rely only on the
evidence of P.W. 14 to sustain his conviction. This argument would have carried some force if
there would have been evidence to show that all inmates of the house had occasion to see all the
petitioners, but no such evidence is brought to my notice. It is not unlikely that when the inmates
of the house were seeing the culprits from different angles, the petitioner Gopal seen by P.W. 14
might not have been seen by the other inmates of the house. When both the courts below have
found that the evidence of P.W. 14 was thoroughly reliable and they have accordingly acted
upon his evidence it is not considered necessary to disturb their finding particularly when their
mode of appreciation of evidence is not shown to be perverse.

6. No other contention having been raised on behalf of the petitioners and the aforesaid
contentions having failed, I hold that the revision is without merit and accordingly the same is
dismissed.

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What is the significance of Omission?

Jaswant Singh v State of Haryana, AIR 2000 SC 1833

1. The petitioner was driving a truck belonging to the SYL Mech. Sub Division, Kurukshetra,
Haryana when it met with a road accident on 25.9.1983 at about 8 p.m. As a result of which, one
person died. The petitioner was prosecuted under Section 304-A read with Section 279 of the
IPC. However, he was acquitted of the criminal charges. The claim petition filed by the LRs of
the deceased was also dismissed, However, the claimants filed 1st Appeal against the order in
this Court. The appeal was allowed. It was held that there is sufficient evidence on record to
show that the offending truck was being driven in a rash and negligent manner by the driver,
Jaswant Singh, the petitioner. Compensation in the sum of Rs. 36,960/- was directed to be paid to
the LRs of the deceased. The aforesaid order was passed on 5.3.1997. Consequently, the
respondents paid the entire amount to the claimants. However, by letter (Annexure P-2) dated
22.8.2001, the petitioner was informed by the Executive Engineer of his Division that since he
had been held responsible for rash and negligent driving by this Court, the amount of
compensation shall be recovered from his salary. The total sum was mentioned Rs. 95,1357-
which was to be recovered from the salary of the petitioner at the rate of Rs. 1,0007- per month.
The petitioner challenged the aforesaid directions by filing a civil suit in the Court of Civil Judge
(Jr. Div.), Kurukshetra. The Civil suit was partially decreed. It was directed that 50% of the
compensation shall be paid by. the State and 50% shall be paid by the petitioner. Against the
aforesaid judgment and decree, the State of Haryana preferred Civil Appeal in the Court of
Additional District Judge, Kurukshetra. The appeal was dismissed. The petitioner had also filed a
cross-appeal which was accepted. The judgment and decree passed by the Civil Court was set
aside and the respondents were restrained from recovering any amount from the pay of the
petitioner, except after providing him an opportunity of hearing and following proper procedure
for fixing liability, if any. In view of the aforesaid judgment, the respondents issued a show-
cause notice to the petitioner on 14.9.2004. The petitioner submitted his reply on 27.9.2004.
After taking into consideration, the reply submitted by the petitioner, the respondents have now
passed an order dated 3.3.2005 directing the recovery of Rs. 95,000/- from the petitioner. 

2. Counsel for the petitioner has submitted that the order of recovery could not have been passed

22 | P a g e
against the petitioner for a number of reasons. According to the learned counsel, since the
petitioner was driving the truck in the performance of his official duties, no liability can be
fastened on the petitioner. Learned counsel has also argued that since the truck belongs to the
State of Haryana, the entire liability has to be borne by the State. The petitioner was possessing a
valid driving licence and therefore, no liability can be fastened on him. In support of the
submission, the learned counsel has relied on a judgment of this Court in the case of Dalip Singh
and Ors. v. Smt. Krishna Kinra and Ors., 1 . Lastly, learned counsel has submitted that even if
some compensation is to be paid by the petitioner, it cannot be more than 50% as the petitioner
as well as the State would be jointly liable to pay the compensation. 

3. We have considered the submissions made by the learned counsel. 

4. It is a matter of record that t his Court in F.A.O. No. 84 o f 1985 decided on 5.3.1997 held that
the petitioner was driving the truck which was involved in the accident. As a consequence of
which one person died. It has also been held that there is sufficient evidence on the record to
show that the offending truck was being driven in a rash and negligent manner. The LRs of the
deceased were held entitled to the compensation as assessed and apportioned by the Tribunal.
The claimants were also held entitled to interest at the rate of 12% per annum. The Court,
however, did not direct as to which of the respondents were to pay the compensation. The
liability for payment was also not apportioned between the parties. The respondents, however,
directly issued an order for making recovery of the amount of compensation from the salary of
the petitioner at the rate of Rs. 1,0007- per month. The aforesaid order was rightly set aside by
the appellate court by its judgment dated 14.6.2004. The respondents were restrained from
making any recovery from the pay of the petitioner, except after providing him an opportunity of
being heard and following proper procedure for fixing his liability. Pursuant to the aforesaid
judgment, the respondents issued a Memorandum on 14.9.2004 under Rule 4 of the Haryana
Civil Services (Punishment and Appeal) Rules, 1987 asking him to show cause as to why any of
the minor punishments besides recovery of loss be not imposed on him. The petitioner was duly
served with the list of allegations. 

5. It was pointed out that the LRs of the deceased had become entitled to compensation in the

23 | P a g e
sum of Rs. 36,960/- with interest at the rate of 12% per annum from the date of the claim
petition, on the basis of the judgment of this Court dated 5.3.1997 in First Appeal from order No.
84/1985. The petitioner was informed that a loss of Rs. 95,000/-had been caused to the State
exchequer due to his non-performance of duty with sincerity and dedication. He was, therefore,
liable to pay the amount of Rs. 95,000/- which has been paid to the dependents of the deceased
as per orders of the High Court. The petitioner submitted a reply to the show-cause notice.
inspite of the finding recorded by the High Court, the petitioner still claims that he was not
driving the truck which was involved in the accident. He also pointed out that the respondents
were remiss in not insuring the truck. Had the truck been insured, the compensation would have
been paid by the Insurance Company. He further pointed out that in Haryana Roadways, which is
a department of Haryana Government, such claims are a matter of routine. However, no
driver/government official is made responsible for payment of claims whatsoever out of
accidents. Therefore, on the basis of the same logic, the compensation, if any, should be paid by
the Irrigation Department. He further pointed out that the High Court did not issue any direction
for recovering the amount of compensation from the petitioner. The petitioner was also given a
personal hearing on 26,10.2004. 

6. After due consideration of the reply, liability has been fastened on the petitioner, on the basis
of the finding of rash and negligent driving given by this Court. The aforesaid order passed by
the respondents is neither without jurisdiction nor contrary to the provisions of the rules. Under
the rules, the loss caused to the exchequer can be recovered from the erring official, provided the
procedure for inflicting minor penalty is duly followed. In the present case, the respondents have
passed a detailed speaking order. There is no breach of rules of natural justice. The petitioner has
been given every opportunity to put forward his version of the events. The legal and factual
defences raised by the petitioner have been duly considered. In our opinion, no injustice has been
caused to the petitioner. 

In view of the above, we find no merit in the writ petition and the same is hereby dismissed. No
costs. 

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What if the portion of evidence is inconsistent with statement U/Sec. 161?

Gurpreet Singh v State of Haryana, AIR 2002 SC 3217

his is a petition challenging the judgment dated 11.02.2015 passed by the Additional Sessions
Judge, Ludhiana, whereby the judgment of conviction passed by Trial Court was upheld and
order of sentence was modified and the respondents No. 2 and 3 were ordered to be released on
probation, and the appeal filed by the present petitioner for enhancing the sentence was
dismissed.

2. The brief facts giving rise to the present petition are that the petitioner lodged an FIR under
Sections 323, 325, 506 and 34 IPC; with the allegation that on 29.10.2010 at about 11:30 pm, the
petitioner had been attacked by the accused/respondents No. 2 and 3. They had given blows on
the arms of the complainant/petitioner with Kurahi ''''Belcha''''; which resulted in multiple
fractures in both arms of the petitioner/complainant. The reason for the attack was that the
petitioner''''s mother was Sarpanch of the village and the accused were supporting the opposite
party. With these allegations, respondents No. 2 and 3 were prosecuted. The Trial Court held
respondents No. 2 and 3 to be guilty under Section 323 IPC. While dealing with the question of
commission of offence under Section 325 IPC, on account of the alleged fractures caused to the
petitioner, the Trial Court held that although, the opinion of the Doctor namely, Dr. Harjeet
Singh has been led in evidence but the Radiologist who gave this report qua the nature of injuries
has not been examined; nor has the X-ray film been placed on record of the case. Since, the
Radiologist; who had reported the fractures in the hand of the petitioner was not produced before
the Court, therefore, Section 325 IPC was held to be not made out. Further; the Trial Court
sentenced respondents No. 2 and 3 with the rigorous imprisonment for a period of one year
alongwith the fine.

3. Aggrieved against the order of the Trial Court, the present petitioner; as well as respondents
No. 2 and 3; both filed separate appeals. The petitioner had filed appeal for conviction of
respondents No. 2 and 3 under Section 325 IPC and for enhancement of the sentence to seven
years, whereas, respondents No. 2 and 3 had filed appeal against their conviction and order of
sentence. However, the lower Appellate Court vide impugned order dismissed the appeal filed by

25 | P a g e
the petitioner. But, so far as the appeal filed by respondents No. 2 and 3 is concerned, the same
was dismissed but instead of maintaining the sentence of imprisonment against the respondents
No. 2 and 3; had modified the order of sentence and Ordered that respondents No. 2 and 3 be
released on probation for a period of one year. Challenging this Order passed by the lower
Appellant Court, present revision petition has been filed by the Complainant. However, learned
counsel for respondents No. 2 and 3 has pointed out that pursuant to the order passed by the
lower Appellate Court, the petitioners have furnished the due bond and they have since
completed the period of probation. As of today, they are not under any bond of probation from
any Court.

4. Learned counsel for the petitioner has submitted that the Courts below have committed a grave
irregularity in so far as they have not convicted respondents No. 2 and 3 under Section 325 IPC.
It is strenuously argued that fractures caused to the petitioner have already been brought on
record by way of medical record. Doctor, namely, Harjeet Singh, who had opined the injury to be
''''grievous'''' on the basis of fractures have duly been examined as PW-5. He has categorically
deposed that he had given the opinion Ex. PW-5/D. It is further contended that even another
private Doctor has been examined; who had opined regarding the fractures at the time when he
was giving treatment to the petitioner. Counsel for the petitioner has relied upon judgment of this
Court rendered in : 1999 (2) R.C.R. (Criminal) 531; Gokha Singh versus State of Punjab to
contend that the doctors are the experts. Therefore, even if the X-ray film is not on the record
then also the opinion of the doctor; who has been examined before the Court should have been
taken as a conclusive proof regarding the nature of the injuries. Still further it is contended by the
counsel that even if the conviction of respondents No. 2 and 3 is to be upheld only under Section
323 IPC; then also lower Appellate Court has committed material irregularity in converting the
sentence into probation. Respondents No. 2 and 3 did not deserve to be released on probation in
view of the seriousness of the offence.

5. On the other hand, learned counsel for respondents No. 2 and 3 submits that pursuant to the
Order passed by the Courts below, respondents No. 2 and 3 have already completed the period of
probation. Hence respondents No. 2 and 3 can not be given any punishment of imprisonment for
the same offence. Arguing on the merits, learned counsel for respondents No. 2 and 3 has

26 | P a g e
submitted that there is no dispute that the doctors are the expert witnesses, however, in the
present case, the relevant expert witness, who had opined about the fracture through radiology
examination, has not been examined before the Court. Hence the Courts below have not
committed any illegality by not believing the injuries, showing the alleged fractures in the hand
of the petitioner.

6. Having heard learned counsel for the parties, this Court does not find any illegality or
irregularity in the judgments/orders passed by the Courts below. The Constitution guarantees the
right to life and liberty to a person, even if he happens to be an accused of an offence. However,
his liberty can be curtailed only in accordance with the procedure prescribed under the law. In
case of criminal prosecution, ''''sentence'''' is only a modality devised by legal system to put a
temporary but limited clog upon the right to life and liberty of a person; after he is convicted of
an offence by following the due process of law. He can be confined in legal custody. Beyond
that, the sentence has no significance. In the same manner, if a person is, although not confined,
however, put under some kind of bond for conducting himself in a particular manner under the
orders of the court, that also tantamounts to putting a kind of clog upon right of life and liberty of
the individual. He would no more be as free an individual as he would have been without such
bond. Hence when a person is put under a bond of assured good conduct on being released on
probation, his right to life and liberty is definitely under an eclipse. Therefore, the probation is
also a legally recognized instrumentality of putting the life and liberty of a convict under eclipse
for a specified time and the same has to be taken at par with the actual sentence of imprisonment;
which the court could have awarded him. Hence once a convict has completed the period of
probation; then he can not be sentenced with imprisonment for the same offence, even if the
point is raised in court of appeal or revision and the Appellate Court or Revisional Court comes
to a different opinion on sentence. After having undergone the period of probation, the convict
has every right to say that he can not be put to double jeopardy for the same offence; because he
has already suffered the eclipse upon his right to life to liberty. Hence this Court finds that since
the petitioner has completed the period of probation, therefore, it is not permissible now to
punish him with sentence of imprisonment, even if this court form a different opinion, so far as
the offence under Section 323 IPC is concerned. Needless to say that Section 360 Cr.P.C. as well
as the Probation of Offenders Act, 1958 cast a duty upon the courts to consider a convict for

27 | P a g e
releasing him on probation; in case of his conviction for offences except the specified offence.
This has already been so held by this Court in case of Karaj Singh vs. State of Punjab; 1996 (2)
RCR (Criminal) 367. The lower Appellate Court has rightly granted the probation to respondents
No. 2 and 3 by exercising its power in accordance with law. This Court finds no reason to
interfere with the order.

7. So far as the argument of learned counsel for the petitioner qua conviction of respondents No.
2 and 3 for a higher offence under Section 325 IPC is concerned, on this point also this Court
does not find any illegality in the order passed by the Court below. Although the petitioner
claims that he was caused fractures by the respondents No. 2 and 3 and even some evidence has
come regarding the injury being grievous, in the form of opinion of a doctor who has been
examined before the Court; to suggest that there could have been fracture in the hand of the
petitioner. However, it is not even denied that the said opinion of the doctor was based on
another report of Radiologist, who had actually examined the petitioner and had given a report
that there were fractures. However, the said Radiologist, namely, Dr. Harinder Pal Singh has not
been produced before the Court. Even the X-ray film, on the basis of which the injury is opined
to be grievous by the PW-5, has not been produced on record. Hence the opinion of the Doctor
PW-5 can not be taken to have proved the guilt of respondents No. 2 and 3 under Section 325
IPC beyond reasonable doubt. This view of this Court finds support from another judgment of
this Court rendered in case of State of Haryana versus Prem Singh; : 2007 (4) Criminal Court
Cases 627. Needless to say that mere suspicion or even preponderance of probability of
commission of offence is not a substitute for evidence ''''beyond reasonable doubt''''. Hence both
the Courts below have rightly arrived at a conclusion that Section 325 IPC is not made out
against respondents No. 2 and 3.

8. Although counsel for the petitioner has relied upon the judgment of this Court rendered in
Gokha Singh''''s case (Supra), however, this Court finds that the present case is distinguishable
on the facts of the present case. In the case of Gokha Singh''''s case (supra), there was no X-ray
done at all. However, the treating doctor who opined about fracture on the basis of physical
symptoms was very much produced before the Court. The said doctor had duly proved the
fracture as mentioned in his report and still he was not even cross-examined by the defense.

28 | P a g e
Therefore, the version regarding the offence was treated by this Court as uncontested In the
present case the X-Ray was done and report was prepared by a doctor. However, the doctor, as
well as, his X-Ray report has been with held by the prosecution. Otherwise also, there is no
provision under either Evidence Act or under Code of Criminal Procedure (Cr.P.C.) to make the
statement of a witness; made before the Court as absolute conclusive evidence of a fact, even if
he happens to be an expert. Although Section 293 Cr.P.C. provides that the Court can use the
report of a government expert as an evidence, however, even that evidence is made subject to
being proved by the witness, if the courts so requires. Further, even this sanctity qua
admissibility in evidence has been restricted to only the reports mentioned in this section. For all
other reports of any kind, the person who prepared the reports, naturally, have to be examined
before the Court. Hence a Radiologist giving report of fracture on the basis of X-Ray; has to be
produced before the Court. The statement of any other witness can, at the best be taken as a
derivative expert opinion, which would be again subjected to assessment by the Court; qua its
relevance and qua its evidentiary value. In the present case, the Courts below have not found the
evidence of the Doctor/expert; who has been examined before the Court, sufficient to prove the
case beyond reasonable doubt. No fault can be found with the appreciation of the evidence by the
Courts below.

9. In view of the above, finding no merit in the present petition, the same is dismissed.
 

Can court summon the case diary to peruse the statement U/Sec. 161?

State of Kerela v Babu, AIR 1999 SC 216

In a pending Sessions Case, on behalf of the accused persons, applications were made to
summon the case diary of a case registered as Cr. No. 81/91 for confronting a witness with his
previous statement as found in the said case diary and to recall the said PW-5. The learned
Sessions Judge allowed the said applications which came to be challenged in criminal petitions
filed before the High Court of Kerala by the State as well as the brother of the deceased. These
petitions came to be dismissed by an Order of the High Court dated 17th August, 1993. Both the
Sessions Court and the High Court held that there is no bar in law to summon the case diary of a
case even other than the one which is being tried, for the purpose of contradicting the evidence of

29 | P a g e
the prosecution witnesses. In this appeal by special leave, the State of Kerala has raised the
following questions of law : 

"(a) Whether the Statement of a witness recorded u/s. 161 of Cr.P.C. in one particular crime
could be used against that witness in any other trial enquiry or proceedings by the accused ? 

(b) Whether the learned Sessions Judge can call for the police diaries of a case which is not
under inquiry or trial before him and permit it to be used by the accused for contradicting a
witness examined in another case under trial before him ? 

(c) Whether Section 162 of the Cr.P.C. permits the use of statement recorded under Section 161
of Cr.P.C. in any other proceeding other than the inquiry or trial in respect of the offence for
which the investigation was conducted ?" 

2. It is contended on behalf of the appellant that the case diary sought to be summoned being a
case diary not of the case which is being tried in the sessions trial under Section 172 of the Code
of Criminal Procedure (hereinafter referred to as `the Code'), it is impermissible for the court to
summon the case diary nor the statements recorded therein could be permitted to be used for
contradicting a witness who is being examined in a trial arising out of a totally different case. 

3. On behalf of the respondents, it is contended that any prior statement of a witness can be used
for the purpose of contradicting a witness as provided for in Section 162 of the Code and Section
145 of the Evidence Act. It was contended that in view of the fact that those provisions having
been enacted for the benefit of the accused, a liberal construction should be given to the
provisions of Section 172 of the Code. Reliance was placed upon a judgment of the High Court
of Calcutta rendered in the case of Ahmed Mia and others v. Emperor, A.I.R. 1944 Cal. 243 and

30 | P a g e
of this Court in Khatri and others v. State of Bihar and others, 1981(2) SCC 493. The brief facts
necessary to appreciate the contentions of the parties in this appeal are as follows : 

4. In the course of trial of Sessions Case No. 157/92, on the file of the Sessions Judge at
Thrissur, it was noticed by the defence that on the very day of the incident which was subject
matter of the sessions case, there was another crime registered in Cr.No. 81/91 and in that during
the course of investigation, a statement of the witness who is being examined in the sessions case
as PW-5, was recorded under Section 161 of the Code which, the defence has contended,
contradicts the statement made by PW-5 in the course of the sessions trial. Therefore, for the
purpose of establishing the contradiction in the evidence of PW-5 and in order to impeach the
said witness, the defence wanted the case diary in Crime No. 81/91 to be summoned with a
consequential prayer for recalling PW-5. This prayer to summon the case diary of Crime No.
81/91, having been allowed, the above controversy has arisen primarily based on the language of
Section 172 of the Code. 

5. Before examining the applicability of Section 172 of the Code, we will first consider the right
of an accused to cross-examine a witness with reference to the previous statement of a witness in
a trial. Section 145 of the Evidence Act provides :- 

"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." 

6. A perusal of this Section shows that this Section permits the cross-examination of the witness
in any trial, with reference to his previous statement, to establish a contradiction and the manner

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in which such contradictions can be established. Section 155 of the Evidence Act provides that
the previous statement of a witness can be made use of during the cross-examination of that
witness for the purpose of impeaching the credit of the witness. Thus, it is seen it is the right of a
party in a trial to use the previous statements of a witness either for the purpose of establishing a
contradiction in his evidence or for the purpose of impeaching the credit of the witness. This
right given to a party in a trial under Section 145 of the Evidence Act is somewhat controlled in
criminal trials by the provisions made in the Code. 

7. Section 161 of the Code provides that the police officer investigating a case is entitled to
examine any person and reduce the statement of such person in writing. This statement recorded
by a police officer under Section 161 even though is a previous statement for the purpose of
Section 145 of the Evidence Act, such statement can be used for the purpose of establishing a
contradiction or impeaching the credit of the witness only in the manner provided for in Section
162 of the Code. The use of the previous statement recorded under section 161 of the Code is
controlled by Section 162 of the Code. The proviso which actually controls the use of Section
162 of the Code reads thus :- 

"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
(I 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." 

8. Therefore, it is seen even in a criminal trial the previous statement of a witness can be used by
the accused for the limited purpose mentioned in Section 162 of the Code as provided for in
Section 145 of the Evidence Act. The object of enacting Section 162 is noticed by this Court in

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the case of Tasildar Singh and Anr. v. State of U.P., A.I.R. 1959 SC 1012, wherein it was held
thus : 

"It is, therefore, seen that the object of the legislature throughout has been to exclude the
statement of a witness made before the police during the investigation from being made use of at
the trial for any purpose, and the amendments made from time to time were only intended to
make clear the said object and to dispel the cloud cast on such intention. The Act of 1808 for the
first time introduced an exception enabling the said statement reduced to writing to be used for
impeaching the credit of the witness in the manner provided by the Evidence Act. As the
phraseology of the exception lent scope to defeat the purpose of the legislature, by the
Amendment Act of 1923, the section was redrafted defining the limits to confine it only to
contradict the witness in the manner provided under section 145 of the Evidence Act. If one
could guess the intention of the legislature in framing the section in the manner it did in 1923, it
would be apparent that it was to protect the accused against the user of the statements of
witnesses made before the police during investigation at the trial presumably on the assumption
that the said statements were not made under circumstances inspiring confidence. Both the
section and the proviso intended to serve primarily the same purpose i.e., the interest of the
accused." 

9. Therefore, on a reading of Section 162 of the Code bearing in mind the object of the said
Section and Section 145 of the Evidence Act, it is clear that an accused in a criminal trial has the
right to make use of the previous statements of a witness including the statements recorded by
the investigating agency during the course of an investigation for the purpose of establishing a
contradiction in the evidence of a witness or to discredit the witness. The question then arises
how does the accused confront the previous statement made by a witness in the course of an
investigation to establish the contradiction in the evidence given by the witness in that trial. So
far as the statements made during the course of investigation of the case being tried is concerned,
there is no difficulty because an accused is entitled under Section 207 of the Code for the supply
of free copies of the documents referred to in the said Section which includes the previous

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statement recorded under sub-section (3) of Section 161 of the Code. The accused does not have
such a right as a matter of course in regard to other previous statements; more so, in regard to the
statements recorded by the investigating agency under Section 161 in a case other than the one
that is being tried by the Court. Therefore, in the instant case, the accused made an application
for summoning the case diary of Crime No. 81/91 invoking the provisions of Section 172 of the
Code. But the State contends that this Section does not apply to summoning the case diary of
cases other than the one that is being tried. Therefore, we will now examine the contention of the
State with reference to Section 172 of the Code

Signature of witness on Statements recorded U/Sec. 161

State of U.P v M.K Anthony, AIR 1985 SC 48

The first circumstance is the plight of helplessness in which the respondent was found at the
relevant time on account of the illness of his wife, the necessity for an operation, non-availability
of funds for the same and the loans taken by him for payment to the German Hospital where the
deceased was kept for a few days just preceding the day of occurrence; impelling the respondent
to commit murders. Evidence of PW 1 Nair and PW 14 Krishan Kumar Tiwari would
unquestionably establish that the respondent was hard-pressed for funds and he had to borrow a
small sum like Rs. 200/- to pay to the German Hospital for treatment given to his wife. Evidence
in this behalf is trustworthy and reliable and would lend assurance to the fact that the suggested
operation and need for Rs. 600/- would render the respondent so helpless that in his exasperation
he found the way out by putting an end to his wife's life and in her absence, the emerging
situation would Impel him to commit murder of his two young kinds. This part of the
prosecution case is satisfactorily established and would provide motivation and would lend
assurance to the evidence furnished by the extra-judicial confession.

19. The second circumstance relied upon by the prosecution is that the respondent had the
opportunity to commit murder of his wife and children during the night between February 26 and
27, 1973. Mrs. Anna Kutty the wife of the respondent was brought from the hospital to his
quarter in the evening on February 26, 1973. During the period Smt. Anna Kutty was kept in the
hospital, the two children of the respondent were left at the house of PW 1 Nair. While returning

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from the hospital to his quarter with his wife, according to the evidence of PW 1 Nair, the
respondent came to his quarter to pick up his two children and then all of them went to the
quarter of the respondent and at that time he told Nair that he should send his wife to his quarter
on the next day in the morning to look after the ailing Smt. Anna Kutty and to cook food for the
children. When this part of the evidence of Nair was put to the respondent in his statement
under Section 313 the only reply was that the statement is incorrect. There is hardly any cross-
examination of witness Nair on this part of his evidence. Once this part of the evidence of Nair is
accepted, it is satisfactorily established that the respondent returned with his wife and two
children to his quarter in the evening on February 26, 1973. It must be remembered that Smt.
Anna Kutty and the two children were found murdered in the quarter of the respondent during
the night between February 26 and 27, 1973. And the crime came to light around 10 A.M. on the
next day i.e. February 27, 1973. During the night the respondent had the opportunity to commit
murder of his wife and children. In this connection, the respondent has stated that he had left his
house around 3.30 A.M. during the fateful night and he went to the railway station at Jhansi in
connection with reservation for his wife and after obtaining the reservation he went directly to
his office and around 1 P.M. in the noon he was informed by a policeman that his wife and
children were murdered. The prosecution has led evidence to show that the respondent applied
for reservation for the journey of his wife from Jhansi to Kerala on February 27, 1973 around
9.30 A.M PW 7 Sukh Darshan Singh deposed that he was a clerk in charge of third-class
reservation at Jhansi railway station in February, 1973 He had brought the reservation register
and after referring to the enter) he deposed that on February 27, 1973 at about 9.30 A.M. Mr.
M.K Anthony (that is the name of the respondent) had filed an application which he produced.
He also produced the railway pass on which the witness put the endorsement about the journey
and the number of train Exh. KA-15. On the strength of this endorsement he issued the
reservation slip KA-16. He also deposed that the reservation hours are from 9 A.M. to 4.30 P.M.
With reference to the evidence of this witness, the respondent stated in his statement that what he
has stated is not correct and reiterated that he applied for reservation at 3.30 A.M. In this
connection it is also necessary to refer to the evidence of one Vinod Kumar Roosia PW 11 who
was examined to prove the inquest panchnama. In the cross-examination a suggestion was made
to him that the respondent was keen to take his wife to Kerala and therefore he had got the pass
issued and obtained reservation. He deposed that on February 27, 1973 about 6-6.30 A.M., a

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quarrel had taken place between respondent and the ticket collector about he time when the
application was presented. It is very surprising that this-wit ness should have been asked these
questions though obviously he was not a witness called by the prosecution to prove anything
with regard to the reservation obtained by the respondent. It was however contended before the
learned Sessions Judge that if the evidence of witness Roosia is believed it would bear out the
statement of the respondent that he had gone for reservation very early in the morning as he had
to stand in the queue and a quarrel had taken place between him and the ticket collector. The
learned Sessions Judge after meticulously examining the evidence of witness Roosia rejected it
and after rejecting this part of the defence version the learned Sessions Judge accepted the
evidence of PW 7 Sukh Darshan Singh and held that the application for reservation was
presented at about 9.35 A.M. Apart from this evidence unless it is shown that at the railway
station Jhansi third class reservation office is open round the clock, it is impossible to believe
that the respondent would leave his house at the unearthly hour of 3.30 A.M. in order to stand in
the queue for obtaining the reservation for his wife and children. Let it not be forgotten that he
was a railway employee and he must be aware when the reservation office would open. If the
reservation office was to open around 9 A.M. it is difficult to believe that from 3.30 A.M. the
respondent would be standing in a queue for obtaining reservation. Therefore the learned
Sessions Judge rightly rejected the statement of the respondent that he had left his house at about
3.30 A.M. The High Court while dealing with this aspect of the case first referred to the
statement made in the First Information Report lodged by Nair that the respondent had gone to
attend his duty at 3.30 A M. during the fateful night. The High Court then called in aid the
statement made by PW 11 Roosia that he had seen a quarrel taking place around 6-6.30 A.M.
between the respondent and a ticket collector. The High Court also referred to the evidence of
Roosia in which he has stated that the respondent claimed before the reservation clerk that he had
made an application for reservation around 12 mid-night. The High Court overlooked this fact
that witness Roosia was examined for proving the inquest panchanama and that he had gone out
of his way to make a statement which may help the respondent. At its best, the evidence of PW
11 Roosia that the respondent was at the railway station around 6.30 A.M. is of an innocuous
nature, though we must frankly confess that that part of his evidence fails to inspire confidence
and the reasons given by the learned Sessions Judge for rejecting the same are convincing. Even
the High Court making a passing observation about this evidence observed that even if the

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evidence of PW 11 Roosia fell short of proving affirmatively that the respondent left his
residence at about 3.30 A.M. certainly did not rule out the reasonableness of the explanation of
the respondent. We fail to make out whether the High Court holds the evidence of PW 11 Roosia
acceptable or otherwise. However, in order to bolster up this evidence the High Court called in
aid the statement made in the First Information Report lodged by PW 1 Nair in which it was
stated that the respondent had left his quarter around 3 30 A M and this was treated as
prosecution case itself. Let it not be forgotten that the First Information Report was lodged after
10 A.M. on February 27 1973 when after the respondent on being informed by Nair about the
murder of Smt Anna Kutty and her two children came to his house. Thereafter PW 1 Nair went
to lodge information of the offence and obviously the fact that respondent was alleged to have
left his house around 3.30 A.M. during the night was given to him by none other than the
respondent himself, Nair obviously had no reason to suspect the bonafides of the respondent at
that time. The statement thus found its place in the First Information Report as the self-serving
declaration of the respondent himself for preparing in advance his defence and would have no
probative value. Once the evidence of PW 11 Roosia and the statement in the First Information
Report are excluded as unworthy of credit the explanation of the respondent that he had left his
house at 3.30 A.M. could not be accepted because it seems contrary to the credible evidence of
PW 7 Sukh Darshan Singh The High Court in our opinion, was in error in holding that the
explanation offered by the respondent for being not present at his house is reasonable. In fact the
explanation is an attempt by the respondent to extricate himself from the inconvenient position in
which he found himself and must be rejected as unworthy of credit It is thus satisfactorily
established that the respondent had the opportunity to commit murder of his wife and two
children during the night between February 26 and 27, 1973. This would provide further
corroboration to the evidence furnished by the dying declaration. Therefore the reasons which
weighed with the High Court for holding that the prosecution has failed to establish that
respondent had a motive to commit the murder and that he made the extra-judicial confession
and that the explanation offered was reasonable do not carry conviction.

20. The prosecution also relied upon an additional piece of evidence namely that after the
respondent was arrested on March 1, 1973 the investigating officer PW 13 K.D. Dixit
interrogated the respondent and on the information given by the respondent he examined the
hands of the respondent and felt that there was some reddish spots on his nails whereupon he got

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cut the nails of the respondent with the help of barber Lal Ram. The nails were kept in a sealed
envelope and were sent to the chemical analyser whose report Exh. KA-41 shows that the nails
were stained with blood. However the nails appear not to have been sent to Serologist and
therefore it could not be said that the blood was of human origin. Obviously it would be far
felicities to hold that the blood stains found on the nails of the respondent were of blood of
animal origin. As the High Court has attached no importance to this aspect for the reasons herein
mentioned we do not propose to call in aid this statement.

21. So far as the recovery of knife is concerned the same was recovered on the information given
by the respondent after he was arrested on Match 1, 1973. The knife was recovered from what is
described as Jali above the water tank the water of which had a reddish tinge. The knife was
wrapped in a piece of cotton cloth. This knife is shown to be stained with human blood. However
the High Court while examining this part of the prosecution case observed that the witness
Kailash Narain PW 5 who was examined to prove the recovery of Knife, stated that he was
occupying Quarter No. 780 but the witness admitted that the quarter was not allotted to him. The
witness also admitted that a quarrel had taken place between his father and the the kedar in
August, 1972 and therefore he came to occupy Quarter No. 780 without an allotment order. The
High Court found this circumstance sufficient to come to the conclusion that the witness could
not be staying in Quarter No. 780 and therefore he could not be present and could not have been
summoned to be a witness. Frankly the reasons for which the evidence of the witness is rejected
are hardly convincing. The learned Sessions Judge had accepted the evidence of the witness and
we are in agreement with him. It is thus satisfactorily established that that the blood stained knife
was recovered on the information given by the respondent from the very quarter in which Smt.
Anna Kutty and her two children were murdered.

22. There are other circumstances not weighty enough to engage our attention because on the
evidence as herein discussed, we are wholly satisfied that the respondent was responsible for
committing murder of his wife and two children. Two dying declarations themselves provide
credible evidence against the respondent. To put the matter beyond the pale of controversy the
circumstantial evidence herein discussed render them wholly reliable and the charge is brought
home to the respondent beyond the slightest shadow of doubt. The evaluation of the evidence by
the High Court is improper and its view is utterly unreasonable and has to be discarded. The

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High Court was accordingly in error in interfering with the conviction of the respondent as
recorded by the learned Sessions Judge.

23. The last question is what sentence should be imposed upon the respondent. The learned
Sessions Judge has imposed maximum penalty that could be imposed under the law namely
sentence of death. The murder of near and dear ones including two innocent kids is gruesome.
We must however be careful lest the shocking nature of crime may induce an Instinctive reaction
to the dispassionate analysis of the evidence both as to offence and the sentence. One
Circumstance that stands out in favour of the respondent for not awarding capital punishment is
that the respondent did not commit murder of his near and dear ones actuated by any lust, sense
of vengeance or for gain. The plight of an economic have-not sometimes becomes so tragic that
the only escape route is crime. The respondent committed murder because in his utter
helplessness he could not find few chips to help his ailing wife and he saw the escape route by
putting an end to their lives. This one circumstance is of such an overwhelming character that
even though the crime is detestable we would refrain from imposing capital punishment. The
respondent should accordingly be sentenced to suffer imprisonment for life.

24. Accordingly this appeal succeeds and is allowed and the judgment and order of the High
Court acquitting the respondent is quashed and set aside and the order convicting the respondent
made by the learned Sessions Judge is restored but the sentence is commuted to one for life
imprisonment. The respondent shall suffer imprisonment for life. He shall surrender to custody
to serve out the sentence

Can court put a question to witnesses?

Raghunandan Vs. State of U.P., (AIR 1974 SC 463)

1. These appeals by special leave arise from the judgment and order dated 23.08.2006 passed by
the High Court of Judicature at Allahabad in Criminal Appeal No.5747 of 2003. The Trial Court
had convicted six accused persons namely Raghunandan @ Bade Mali, Mahesh, Shiv Singh, Brij
Raj, Ram Niwas and Raju under Sections 148, 404, 302 read with 149 IPC and sentenced them
to life imprisonment and other sentences. The accused challenged their conviction and sentence

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by filing Criminal Appeal No.5747 of 2003 in the High Court. By its judgment under appeal, the
High Court affirmed the conviction and sentence of Shiv Singh and Ram Niwas while it
acquitted other four accused. The acquittal of those four accused is challenged by the State in
Criminal Appeal No.1189 of 2008 while the conviction and sentence of Shiv Singh and Ram
Niwas is under challenge in Criminal Appeal No.1204 of 2008. Both these appeals are being
disposed of by this common judgment.

2. PW1 Brij Raj Singh submitted a written report on 01.01.2001 in P.S. Aliganj, District Etah to
the effect that on that day he along with his nephew PW2 Shiv Ratan Singh and one Nahar Singh
had gone to the bazaar to purchase vegetables. While returning from the bazaar on foot, the
brother of PW1 named Raghunandan Singh, who had also gone to the market to purchase
vegetables on a cycle, overtook them. When they arrived at the triangular crossing at Kila Road
said Raghunandan Singh was about 50 steps ahead of them. Raghunandan Singh was carrying
his Rifle on his shoulder. At this triangular crossing all the aforementioned six accused persons
who had been waiting, started firing upon Raghunandan Singh, on account of which he died at
the spot. The occurrence created a scramble and shopkeepers closed down their shops and started
fleeing. According to PW1, the accused had taken away the licensed rifle of the deceased
Raghunandan Singh and made good their escape. PW1 further stated in his report that accused
Raghunandan @ Bade Mali was armed with licensed double barrel gun while the other accused
were also armed with fire arms. The incident occurred at 4:30 p.m. and the aforesaid report
scribed by one Ram Babu Singh was submitted at 5:30 p.m., pursuant to which Crime No.2 of
2001 was registered in P.S. Aliganj.

3. As part of investigation, PW6 Sub Inspector Surender Singh Chauhan arrived at the place of
occurrence but could not conduct the inquest upon the body of the deceased because of darkness.
The inquest panchnama Ext. Ka -16 was prepared at 8 o’clock on the next day i.e. on
02.01.2001. At the spot, three empty cartridges were found, two of .315 bore and one of 12 bore.
The body of the deceased was then sent for post mortem examination which was conducted on
the same day at 2:30 p.m. by PW3 Dr. Hariom Gupta, Medical Officer, Distt. Hospital Etah and
following ante mortem injuries were found:

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1) Firearm wound of entry 4 x 1 cm on left side of hip.

2) Firearm wound of entry 1cm × 1cm side of back of chest, blackening present.

3) Firearm wound of exit 2cm × 1cm on right side of chest.

4) Firearm wound of entry 1.5cm × 1cm on right side of back of chest.

5) Firearm wound of entry 3cm × 1cm on left side of chest.

Blackening present.

6) Lacerated wound 3cm × 1cm × muscle deep on top of skull. On internal examination, both the
lungs and pericardium were found lacerated. The cause of death was shock and hemorrhage as a
result of the aforementioned ante mortem injuries.

4. All six accused persons were arrested and rifle of .315 bore bearing No.78 AB 0226 belonging
to deceased Raghunandan Singh was recovered from the heap of straw in the house allegedly
belonging to accused Raghunandan @ Bade Mali. A country made pistol of 12 bore was
recovered from accused Ram Niwas along with two live cartridges of 12 bore while on the same
day a country made pistol of .315 bore and live cartridges of same bore were recovered from
accused Shiv Singh. According to the Ballistic Expert’s opinion which was marked Ext. Ka(I) in
the High Court at the appellate stage, out of three empties found at the site, empty cartridge
marked EC 1 was found to have been fired from country made pistol recovered from accused
Ram Niwas, while the other cartridge marked as EC 2 was found to have been fired from the
country made pistol recovered from the accused Shiv Singh. The characteristics of empty
cartridge EC 3 were however not found sufficient for comparison.

5. The prosecution examined PW1 Brij Raj Singh and PW2 Shiv Ratan as eye witnesses to the
occurrence. There were some elements of inconsistency in their statements, the principal being
the assertion by PW2 Shiv Ratan that the dead body of deceased Raghunandan Singh was

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brought to the police station and that the body was in the police station during the night. The eye
witness account about the incident however consistently disclosed that all the six accused had
encircled deceased Raghunandan Singh whose body was found to be having five injuries by fire
arms out of which four were entry wounds and the fifth was the exit wound. The location of the
entry wounds in the front as well as in the back of the body of the deceased was consistent with
the eye witness account. The sixth injury, a lacerated wound on the skull was also in keeping
with the eye witness account that after taking the rifle from the deceased, accused Shiv Singh
had hit the deceased with the butt of the rifle.

6. The Trial Court by its judgment and order dated 21.10.2003 found all six accused guilty of the
charges levelled against them. It found the eye witness account unfolded through the testimony
of PW1 Brij Raj Singh and PW 2 Shiv Ratan to be trustworthy. The Trial Court found all the
accused persons guilty under Sections 143, 120-B, 404, 302 read with Section 149 of IPC and
sentenced each of them to undergo rigorous imprisonment for two years under Section 148 IPC,
rigorous imprisonment for two years and fine of Rs.1000/- for the offence under Section 404
IPC, rigorous imprisonment for life and fine of Rs.5000/- for the offence under Section 302 read
with Section 149 IPC and rigorous imprisonment for life and fine of Rs.5000/- for the offence
under Section 302 read with Section 120-B IPC.

7. The convicted accused being aggrieved, filed Criminal Appeal No.5747 of 2003 in the High
Court of Judicature at Allahabad. It was submitted on their behalf that the scribe was not
examined, that the F.I.R was ante-timed and lodged after deliberation and consultation, that there
was motive on the part of the prosecution to implicate the accused falsely, that there were
contradictions in the version of two eye witnesses and that the possibility of false implication of
some of the accused was very much present. At the appellate stage the genuineness of the report
of the Ballistic Expert was specifically admitted, whereupon said report was marked as High
Court Ext. Ka (1). The High Court found that the evidence regarding recovery of the rifle of the
deceased from the heap of straw from the house belonging to the accused Raghunandan was not
satisfactory. It further found that the licensed weapon which said accused Raghunandan @ Bade
Mali was allegedly carrying was not used at all. At the same time the empties recovered from the
place of occurrence did match with the country made pistols recovered from accused Shiv Singh

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and Ram Niwas. The High Court therefore found the case of the prosecution to have been
established as against Shiv Singh and Ram Niwas but gave benefit of doubt to the other accused.
The conviction and sentence of Shiv Singh and Ram Niwas as recorded by the Trial Court was
therefore maintained while the other accused were acquitted of all the charges levelled against
them.

8. The acquittal of Raghunandan @ Bade Mali, Mahesh, Brij Raj and Raju is under challenge in
Criminal Appeal No.1189 of 2008 while convicted accused Shiv Singh and Ram Niwas have
challenged their conviction and sentence in Criminal Appeal No.1204 of 2008. By order dated
24.01.2011 the convicted accused were ordered to be released on bail, which facility they have
since then been enjoying.

9. We have heard Shri C.D. Singh and Shri Ranjit Rao, learned Advocates for the State in
Criminal Appeal Nos.1189 and 1204 of 2008 respectively while the accused were represented by
Mr. Salman Khurshid, learned Senior Advocate in both the matters. It was submitted on behalf of
the State that minor inconsistencies apart, the version given by eye witnesses was well supported
by medical evidence on record. Furthermore, the opinion of the Ballistic Expert having been
admitted at the appellate stage, the issue stood completely clinched in favour of the prosecution.
The fact that there were four entry wounds, some in the front while the others in the back of the
deceased, completely supported the eye witness account. The preparedness and participation of
all the accused having been clearly established, they ought to have been convicted and the
acquittal of four of the accused persons was completely unjustified.

10. Mr. Khurshid, learned Senior Advocate on the other hand submitted that the inconsistencies
in the version of the eye witnesses were such that both the versions were required to be rejected,
that the first information report was clearly submitted after due deliberation and consultation,
that the scribe of the original complaint and Nahar Singh were not examined at all, and that the
facts on record did not rule out the possibility of over implication on the part of the eye
witnesses. Emphasis was laid on the fact that first five accused are real brothers while the sixth
accused is the son of accused Ram Niwas and that 15 to 20 days before the incident one Ram
Singh, other brother of first five accused was murdered in respect of which two sons and two

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nephews of deceased Raghunandan Singh were named as culprits in the murder.

11. We have gone through the entire record and considered the rival submissions. It is true that
there are certain inconsistencies in the versions of both eye witnesses. But such inconsistencies
are not pertaining to the basic substratum of the case. The first information report in the instant
case was lodged soon after the incident and the injuries on the person of the deceased also show
that more than one fire arm must have been used in the transaction. Even if the recovery of the
licensed weapon of the deceased is eschewed, the recovery of the country made pistols from Shiv
Singh and Ram Niwas stands completely proved. Furthermore, the empty cartridges found at the
spot, as opined by the Ballistic Expert, are found to have been fired from those country-made
pistols recovered from Shiv Singh and Ram Niwas. In the circumstances the involvement of
accused Shiv Singh and Ram Niwas in the incident in question stands fully established. At the
same time, since the recovery of licensed weapon of the deceased from the house of the accused
Raghunandan @ Bade Mali was not established and so also the fact that said Raghunandan @
Bade Mali, though statedly armed with a double barrel rifle had not used that weapon at all, the
assessment made by the High Court that there could be possibility of over implication is quite
correct. We find the view taken by the High Court as regards the acquittal of four accused, to be
a possible view which would not warrant any interference in this appeal against acquittal. We,
therefore, affirm the view taken by the High Court as regards the acquittal of those four accused
but at the same time find sufficient material on record as regards involvement of Shiv Singh and
Ram Niwas. We therefore, affirm the conviction and sentence as recorded concurrently against
Shiv Singh and Ram Niwas.

12. In the result, these appeals are dismissed affirming the view taken by the High Court in the
judgment and order under appeal. The bail bonds of Shiv Singh and Ram Niwas stand cancelled
and they be taken in custody forthwith to undergo the sentence awarded to them.

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 CONCLUTION

Recording of statements under section 161 and 164 of Cr.P.C., plays a

pivotal role in criminal trial. The purpose of contradiction between evidence of a witness before
the court and the statement recorded under section 161 and 164 of Cr.P.C is primarily to shake
credit of the witness, it is only to put the court on guard, to scrutinise the evidence with great
care. Thereby it is duty of all judicial officers to pay special attention to the provisions of section
161, 164 of Code with reference to Section 145 of Evidence Act, so as to enable them to have
clear notions about all relevant provisions in this regard.

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 BIBLOGRAPHY

 Code of criminal procedure,1973,Ratanlal and Dhirajlal ,Lexis Nexis,22nd edition,2018

Reprint
 www.indiankanoon.com
 www.westlaw.com
 DK.Basu guide lines
 Bharati S. Khandhar case guide lines

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 177th law commission Report

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