Himachal Pradesh High Court
Reserved On: 31.03.2026 vs State Of H.P on 18 May, 2026
2026:HHC:17432
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 175 of 2026
.
Reserved on: 31.03.2026
Date of Decision: 18.05.2026.
Sanjay Kumar & Anr. ...Petitioners
of
Versus
State of H.P. ...Respondent
Coram
rt
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Petitioners : Mr Ritesh Bhardwaj, Advocate.
For the Respondent/State : Mr Jitender Sharma, Additional
Advocate General.
Rakesh Kainthla, Judge
The petitioners have filed the present revision
against the judgment dated 24.02.2026 passed by learned
Additional Sessions Judge, Sarkaghat, District Mandi, H.P.
(learned Appellate Court) vide which the judgment of conviction
dated 09.02.2023 passed by learned Judicial Magistrate First
Class, Court No.2, Sarkaghat, District Mandi, H.P. (learned Trial
Court) and order of sentence dated 10.04.2024 passed by learned
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Chief Judicial Magistrate, H.P. were upheld. (The parties shall
hereinafter be referred to in the same manner as they were arrayed
.
before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present
revision are that the police presented a challan against the
of
petitioner (accused before the learned Trial Court) for the
commission of an offence punishable under Section 39 (1) (a) of
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the H.P. Excise Act. It was asserted that ASI Sandeep Kumar
(PW8), ASI Prem Singh (PW5), Constable Mann Singh (PW1) and
HHG Sanjay Kumar stopped an Alto car bearing registration No.
HP-28-9798 at Sidhpur on 31.10.2014 at about 7:15 PM. Sanjay
Kumar was driving the car, and Nek Ram was sitting in it. The
police officials asked the accused, Sanjay Kumar, to produce the
documents, but he refused. The police searched the car based on
a suspicion and recovered 36 bottles of Indian Made Foreign
Liquor (IMFL) bearing Mark ‘Green label’, 24 bottles of IMFL
bearing mark ‘Royal Stag’, 24 pints of IMFL bearing mark
‘Officers Choice’, 12 bottles of beer, 48 bottles of Country Liquor
bearing mark ‘Una no.1’ and 71 bottles of Country Liquor bearing
mark ‘Dabang No.1’. The police demanded the documents for
transporting the liquor, but the accused could not produce any
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documents. The police obtained the samples and sealed the
sample bottles and remaining bottles with seal impression ‘H’.
.
Sample seal (Ext.PW1/B) was taken on a separate piece of cloth.
The liquor was seized vide memo (Ext.PW2/A). Rukka
(Ext.PW8/A) was prepared and was sent to the Police Station,
where FIR (Ext.PW8/B) was prepared. ASI Sandeep Kumar (PW8)
of
investigated the matter. He prepared the site plan (Ext.PW8/C)
and recorded the statements of witnesses as per their version.
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The samples were sent to SFSL, Junga, and a report (Ext.PW8/E)
was issued. The statements of witnesses were recorded as per
their versions, and upon completion of the investigation, the
challan was prepared and presented before the learned Trial
Court.
3. The learned Trial Court found sufficient reasons to
summon the accused. When the accused appeared, they were
charged with the commission of an offence punishable under
Section 39 (1) (a) of the H.P. Excise Act, to which they pleaded
not guilty and claimed to be tried.
4. The prosecution examined nine witnesses to prove
its case. Constable Maan Singh (PW1), ASI Prem Singh (PW5)
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and ASI Sandeep Kumar (PW8) were the members of the police
party. Constable Karam Singh (PW2) witnessed the recovery.
.
Constable Vinod Kumar (PW3) was working as MHC with whom
the case property was deposited. HHC Dina Nath (PW4) carried
the case property to CTL, Kandaghat. Rakesh Kumar (PW6) did
not support the prosecution’s case. HC Vipin (PW7) proved the
of
entry in the daily diary. SHO Jagdish Chand (PW9) signed the FIR
and resealed the case property.
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5. The accused, in their statements recorded under
Section 313 of the Criminal Procedure Code (Cr.P.C.), admitted
that Sanjay Kumar was driving the car and Nek Ram was
travelling in it. They also admitted that liquor was recovered
from the car. They claimed that the liquor belonged to the
contractor. They did not produce any evidence in the defence.
6. The learned Trial Court held that the prosecution
witnesses corroborated the statements of each other. Minor
contradictions in their testimonies were not sufficient to discard
them. The accused admitted to the seizure of liquor from their
car. The independent witnesses could not be associated because
the incident had taken place at a lonely and deserted place. The
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integrity of the case property was duly established. Therefore,
the learned Trial Court convicted the accused of the commission
.
of an offence punishable under Section 39 (1) (a) of the H.P.
Excise Act. However, the learned Trial Court found that the
offence punishable under Section 39 (1) (a) of H.P. Excise Act in
case of transportation of more than 45 litres of country liquor
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was punishable with imprisonment which shall not be less than
three years and the fine which shall not be less than ₹ 1 lakh. The
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Learned Magistrate was not competent to impose a fine of more
than ₹10,000/-. Hence, he submitted the case file to the learned
Chief Judicial Magistrate under Section 325 of the Cr.P.C.
7. Learned Chief Judicial Magistrate sentenced each of
the accused to undergo simple imprisonment for a period of four
months, pay a fine of ₹5000/- each and in default of payment of
fine to undergo simple imprisonment for one month each for the
commission of an offence punishable under Section 39 (1) (a) of
H.P. Excise Act.
8. Being aggrieved by the judgment and order passed by
the learned Trial Court and the learned Chief Judicial Magistrate,
the accused filed an appeal, which was decided by the learned
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Additional Sessions Judge, Sarkaghat, District Mandi, H.P.
(learned Appellate Court). The learned Appellate Court
.
concurred with the findings recorded by the learned Trial Court
that the statements of prosecution witnesses corroborated each
other. The accused also admitted the recovery of the liquor from
their vehicle in their statements recorded under Section 313 of
of
the Cr.P.C. It was not possible to join any independent witness
because of the chance recovery. The Learned Chief Judicial
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Magistrate had already imposed less than the minimum
imprisonment, and no further leniency was required in the
matter. Hence, the appeal filed by the accused was dismissed.
9. Being aggrieved by the judgments and order passed
by the learned Courts below, the accused have filed the present
revision asserting that the learned Courts below erred in
appreciating the material on record. The statements of the
prosecution witnesses contradicted each other on material
aspects. The Maalkhana register did not contain any entry
regarding the receipt of the registration certificate and driving
license. The recovery was effected from a car, and the police
failed to comply with the requirements of Section 100(4) of the
Cr.P.C., which is fatal to the prosecution’s case. Rakesh Kumar
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(PW6), the owner of the car, did not support the prosecution’s
case, which was fatal to the prosecution’s version. Therefore, it
.
was prayed that the present revision be allowed and the
judgments and order passed by the learned Courts below be set
aside.
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10. I have heard Mr Ritesh Bhardwaj, learned counsel for
the petitioners/accused, and Mr Jitender Sharma, learned
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Additional Advocate General for the respondent/State.
11. Mr Ritesh Bhardwaj, learned counsel for the
petitioners/accused, submitted that the petitioners are innocent
and they were falsely implicated. There are material
contradictions in the statements of official witnesses, which
made the prosecution’s case suspect. The police had not joined
any independent witnesses, which is fatal to the prosecution’s
case. Therefore, he prayed that the present revision be allowed
and the judgments and order passed by the learned Courts below
be set aside.
12. Mr Jitender Sharma, learned Additional Advocate
General for the respondent/State, submitted that the accused
admitted in their statements recorded under Section 313 of the
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Cr.P.C. that they were present in the vehicle from which the
recovery of liquor was made. This admission corroborated the
.
prosecution’s version, and the learned Courts below had rightly
relied upon it. The contradictions pointed out by learned counsel
for the petitioners/accused are minor and bound to come with
the time due to failure of memory. Both the Courts have
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concurrently found that the accused were found in possession of
the liquor, and this Court should not interfere with the
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concurrent findings of facts while exercising revisional
jurisdiction. Hence, he prayed that the present revision be
dismissed.
13. I have given a considerable thought to the
submissions made at the bar and have gone through the records
carefully.
14. It was laid down by the Hon’ble Supreme Court in
Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204:
(2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that a revisional
court is not an appellate court and it can only rectify the patent
defect, errors of jurisdiction or the law. It was observed at page
207-
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“10. Before adverting to the merits of the contentions, at
the outset, it is apt to mention that there are concurrent
findings of conviction arrived at by two courts after a
.
detailed appreciation of the material and evidence
brought on record. The High Court in criminal revision
against conviction is not supposed to exercise the
jurisdiction like the appellate court, and the scope of
interference in revision is extremely narrow. Section 397
of the Criminal Procedure Code (in short “CrPC“) vests
jurisdiction to satisfy itself or himself as to the
of
correctness, legality or propriety of any finding, sentence
or order, recorded or passed, and as to the regularity of
any proceedings of such inferior court. The object of the
provision is to set right a patent defect or an error of
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jurisdiction or law. There has to be a well-founded error
that is to be determined on the merits of individual cases.
It is also well settled that while considering the same, the
Revisional Court does not dwell at length upon the facts
and evidence of the case to reverse those findings.
15. This position was reiterated in State of Gujarat v.
Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023 SCC OnLine SC
1294, wherein it was observed at page 695:
“14. The power and jurisdiction of the Higher Court under
Section 397 CrPC, which vests the court with the power tocall for and examine records of an inferior court, is for the
purposes of satisfying itself as to the legality and
regularities of any proceeding or order made in a case.
The object of this provision is to set right a patent defect
or an error of jurisdiction or law or the perversity which
has crept in such proceedings.
15. It would be apposite to refer to the judgment of this
Court in Amit Kapoor v. Ramesh Chander [Amit Kapoor v.
Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687:
(2013) 1 SCC (Cri) 986], where scope of Section 397 has
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2026:HHC:17432been considered and succinctly explained as under: (SCC
p. 475, paras 12-13)
“12. Section 397 of the Code vests the court with the.
power to call for and examine the records of an inferior
court for the purposes of satisfying itself as to the legality
and regularity of any proceedings or order made in a case.
The object of this provision is to set right a patent defect
or an error of jurisdiction or law. There has to be a well-
founded error, and it may not be appropriate for the court
to scrutinise the orders, which, upon the face of it, bear a
of
token of careful consideration and appear to be in
accordance with law. If one looks into the various
judgments of this Court, it emerges that the revisional
jurisdiction can be invoked where the decisions under
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challenge are grossly erroneous, there is no compliance
with the provisions of law, the finding recorded is based
on no evidence, material evidence is ignored, or judicial
discretion is exercised arbitrarily or perversely. These are
not exhaustive classes, but are merely indicative. Each
case would have to be determined on its own merits.
13. Another well-accepted norm is that the revisional
jurisdiction of the higher court is a very limited one and
cannot be exercised in a routine manner. One of the
inbuilt restrictions is that it should not be against an
interim or interlocutory order. The Court has to keep in
mind that the exercise of revisional jurisdiction itself
should not lead to injustice ex facie. Where the Court is
dealing with the question as to whether the charge has
been framed properly and in accordance with law in a
given case, it may be reluctant to interfere in the exercise
of its revisional jurisdiction unless the case substantially
falls within the categories aforestated. Even the framing
of the charge is a much-advanced stage in the
proceedings under CrPC.”
16. It was held in Kishan Rao v. Shankargouda, (2018) 8
SCC 165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC
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OnLine SC 651 that it is impermissible for the High Court to
reappreciate the evidence and come to its conclusions in the
.
absence of any perversity. It was observed at page 169:
“12. This Court has time and again examined the scope of
Sections 397/401 CrPC and the grounds for exercising the
revisional jurisdiction by the High Court. In State of
Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999)of
2 SCC 452: 1999 SCC (Cri) 275], while considering the scope
of the revisional jurisdiction of the High Court, this Court
has laid down the following: (SCC pp. 454-55, para 5)
5. … In its revisional jurisdiction, the High Court can
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call for and examine the record of any proceedings
to satisfy itself as to the correctness, legality orpropriety of any finding, sentence or order. In other
words, the jurisdiction is one of supervisory
jurisdiction exercised by the High Court for
correcting a miscarriage of justice. But the saidrevisional power cannot be equated with the power
of an appellate court, nor can it be treated even as a
second appellate jurisdiction. Ordinarily, therefore,it would not be appropriate for the High Court to
reappreciate the evidence and come to itsconclusion on the same when the evidence has
already been appreciated by the Magistrate as wellas the Sessions Judge in appeal, unless any glaring
feature is brought to the notice of the High Court
which would otherwise amount to a gross
miscarriage of justice. On scrutinising the
impugned judgment of the High Court from the
aforesaid standpoint, we have no hesitation in
concluding that the High Court exceeded its
jurisdiction in interfering with the conviction of the
respondent by reappreciating the oral evidence. …”
13. Another judgment which has also been referred to and
relied on by the High Court is the judgment of this Court
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in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke,
(2015) 3 SCC 123: (2015) 2 SCC (Cri) 19]. This Court held
that the High Court, in the exercise of revisional
.
jurisdiction, shall not interfere with the order of the
Magistrate unless it is perverse or wholly unreasonable or
there is non-consideration of any relevant material, the
order cannot be set aside merely on the ground that
another view is possible. The following has been laid
down in para 14: (SCC p. 135)
“14. … Unless the order passed by the Magistrate is
of
perverse or the view taken by the court is wholly
unreasonable or there is non-consideration of any
relevant material or there is palpable misreading of
records, the Revisional Court is not justified in
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setting aside the order, merely because another
view is possible. The Revisional Court is not meant
to act as an appellate court. The whole purpose of
the revisional jurisdiction is to preserve the power
in the court to do justice in accordance with the
principles of criminal jurisprudence. The revisional
power of the court under Sections 397 to 401 CrPC is
not to be equated with that of an appeal. Unless the
finding of the court, whose decision is sought to be
revised, is shown to be perverse or untenable in law
or is grossly erroneous or glaringly unreasonable or
where the decision is based on no material or where
the material facts are wholly ignored or where the
judicial discretion is exercised arbitrarily or
capriciously, the courts may not interfere with the
decision in exercise of their revisional jurisdiction.”
17. This position was reiterated in Bir Singh v. Mukesh
Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ)
309: 2019 SCC OnLine SC 13, wherein it was observed at page 205:
“16. It is well settled that in the exercise of revisional
jurisdiction under Section 482 of the Criminal Procedure::: Downloaded on – 23/05/2026 08:33:15 :::CIS
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2026:HHC:17432Code, the High Court does not, in the absence of
perversity, upset concurrent factual findings. It is not for
the Revisional Court to re-analyse and re-interpret the.
evidence on record.
17. As held by this Court in Southern Sales & Services v.
Sauermilch Design and Handels GmbH, (2008) 14 SCC 457, it
is a well-established principle of law that the RevisionalCourt will not interfere even if a wrong order is passed by
a court having jurisdiction, in the absence of a
jurisdictional error. The answer to the first question is,of
therefore, in the negative.”
18. The present revision has to be decided as per the
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parameters laid down by the Hon’ble Supreme Court.
19. Constable Maan Singh (PW1), ASI Prem Singh (PW5)
and ASI Sandeep Kumar (PW8) supported the prosecution case
in their examination-in-chief. Learned Counsel for the
petitioners/accused submitted that their testimonies contain the
following contradictions: –
1) As per the prosecution’s case, Rukka was sent by
Constable Maan Singh (PW1). However, Constable MaanSingh (PW1) stated that he did not know who had carried
the rukka to the Police Station and who had brought the
file to the spot.
2) ASI Prem Singh (PW5) stated that he had no knowledge
about the registration number of the motorcycle or who
had owned the motorcycle. ASI Sandeep Kumar stated
that the motorcycle belonged to Prem Singh and that he
was driving it. The government motorcycle was being
driven by Maan Singh (PW1).
3) Maan Singh (PW1) stated that the accused person did
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2026:HHC:17432Kumar (PW8) stated that the registration certificate and
driving license of the vehicle were seized by the Police
vide memo (Ext.PW2/A), which were sent to the Police.
Station along with the case property. Further, no entry
was made in the Malkhaana Register about the receipt of
the registration certificate and driving license.
4)The prosecution asserted that the recovery was effected
at a lonely and deserted place. ASI Prem Singh (PW5)
stated that the road was busy. ASI Sandep Kumar (PW8)
stated that the bags were brought from the shop Sidhpur
of
Bazaar by HHC Sanjay Kumar. ASI Prem Singh (PW5)
stated that bags were brought from the nearby shop.
However, no independent person was called from the
shop.
20.
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Hon’ble Supreme Court held in Rajan v. State of
Haryana, 2025 SCC OnLine SC 1952, that the discrepancies in the
statements of the witnesses are not sufficient to discard the
prosecution case unless they shake the core of the testimonies.
It was observed: –
“32. The appreciation of ocular evidence is a hard task.
There is no fixed or straitjacket formula for the
appreciation of the ocular evidence. The judicially evolvedprinciples for the appreciation of ocular evidence in a
criminal case can be enumerated as follows:
“I. While appreciating the evidence of a witness, the
approach must be whether the evidence of the witness,
read as a whole, appears to have a ring of truth. Once
that impression is formed, it is undoubtedly necessary
for the Court to scrutinise the evidence more
particularly, keeping in view the deficiencies,
drawbacks and infirmities pointed out in the evidence
as a whole and evaluate them to find out whether it is
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2026:HHC:17432witness and whether the earlier evaluation of the
evidence is shaken as to render it unworthy of belief.
II. 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 bythe 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 orof
infirmities in the matter of trivial details.
III. When an eye-witness is examined at length, it is
quite possible for him to make some discrepancies. But
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courts should bear in mind that it is only when
discrepancies in the evidence of a witness are so
incompatible with the credibility of his version that thecourt is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching
the core of the case, a hyper-technical approach bytaking sentences torn out of context here or there from
the evidence, attaching importance to some technical
error committed by the investigating officer, not goingto the root of the matter, would not ordinarily permit
rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations
falling in the narration of an incident (either asbetween the evidence of two witnesses or as between
two statements of the same witness) is an unrealistic
approach for judicial scrutiny.
VI. By and large, a witness cannot be expected to
possess a photographic memory and to recall the
details of an incident. It is not as if a videotape is
replayed on the mental screen.
VII. Ordinarily, it so happens that a witness is
overtaken by events. The witness could not have
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2026:HHC:17432element of surprise. The mental faculties, therefore,
cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to.
person. What one may notice, another may not. An
object or movement might emboss its image on one
person’s mind, whereas it might go unnoticed on the
part of another.
IX. By and large, people cannot accurately recall a
conversation and reproduce the very words used by
them or heard by them. They can only recall the mainof
purport of the conversation. It is unrealistic to expect a
witness to be a human tape recorder.
X. In regard to the exact time of an incident, or the
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time duration of an occurrence, usually, people make
their estimates by guesswork on the spur of themoment at the time of interrogation. And one cannot
expect people to make very precise or reliable
estimates in such matters. Again, it depends on the
time sense of individuals, which varies from person toperson.
XI. Ordinarily, a witness cannot be expected to recall
accurately the sequence of events that take place inrapid succession or in a short time span. A witness is
liable to get confused or mixed up when interrogated
later on.
XII. A witness, though wholly truthful, is liable to be
overawed by the court atmosphere and the piercing
cross-examination by counsel and, out of nervousness,
mix up facts, get confused regarding the sequence of
events, or fill in details from imagination on the spur
of the moment. The subconscious mind of the witness
sometimes operates on account of the fear of looking
foolish or being disbelieved, though the witness is
giving a truthful and honest account of the occurrence
witnessed by him.
XIII. A former statement, though seemingly
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2026:HHC:17432sufficient to amount to a contradiction. Unless the
former statement has the potency to discredit the latter
statement, even if the latter statement is at variance.
with the former to some extent, it would not be helpful
to contradict that witness.” [See Bharwada
Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC
217: 1983 Cri LJ 1096: (AIR 1983 SC 753) Leela Ram v.
State of Haryana (1999) 9 SCC 525: AIR 1999 SC 3717
and Tahsildar Singh v. State of UP (AIR 1959 SC
1012)”
of
21. It was laid down by the Hon’ble Supreme Court in
Karan Singh v. State of U.P., (2022) 6 SCC 52: (2022) 2 SCC (Cri)
rt
479: 2022 SCC OnLine SC 253 that the Court has to examine the
evidence of the witnesses to find out whether it has a ring of
truth or not. The Court should not give undue importance to
omissions, contradictions and discrepancies which do not go to
the heart of the matter. It was observed at page 60: –
“38. From the evidence of Mahender Singh, PW 4, it
appears that no specific question was put to him as to
whether the appellant was present at the place of
occurrence or not. This Court in Rohtash Kumar v. State ofHaryana [Rohtash Kumar v. State of Haryana, (2013) 14 SCC
434: (2014) 4 SCC (Cri) 238] held: (SCC p. 446, para 24)
“24. … The court has to examine whether the evidence
read as a whole appears to have a ring of truth. Once
that impression is formed, it is undoubtedly necessary
for the court to scrutinise the evidence more,
particularly keeping in view the deficiencies,
drawbacks, and infirmities pointed out in the evidence
as a whole and evaluate them to find out whether it is
against the general tenor of the evidence given by the
witnesses and whether the earlier evaluation of the::: Downloaded on – 23/05/2026 08:33:15 :::CIS
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2026:HHC:17432evidence is shaken, as to render it unworthy of belief.
Thus, the court is not supposed to give undue
importance to omissions, contradictions and.
discrepancies which do not go to the heart of the
matter and shake the basic version of the prosecution
witness.”
39. Referring to Narayan Chetanram Chaudhary v. State of
Maharashtra [Narayan Chetanram Chaudhary v. State of
Maharashtra, (2000) 8 SCC 457: 2000 SCC (Cri) 1546], Mr
Tyagi argued that minor discrepancies caused by lapses in
of
memory were acceptable, contradictions were not. In this
case, there was no contradiction, only minor
discrepancies.
rt
40. In Kuriya v. State of Rajasthan [Kuriya v. State of
Rajasthan, (2012) 10 SCC 433: (2013) 1 SCC (Cri) 202], this
Court held: (SCC pp. 447-48, paras 30-32)
“30. This Court has repeatedly taken the view that the
discrepancies or improvements which do not
materially affect the case of the prosecution and are
insignificant cannot be made the basis for doubting
the case of the prosecution. The courts may not
concentrate too much on such discrepancies or
improvements. The purpose is to primarily and clearly
sift the chaff from the grain and find out the truth
from the testimony of the witnesses. Where it does not
affect the core of the prosecution case, such a
discrepancy should not be attached undue
significance. The normal course of human conduct
would be that while narrating a particular incident,
there may occur minor discrepancies. Such
discrepancies may even, in law, render credentials to
the depositions. The improvements or variations must
essentially relate to the material particulars of the
prosecution case. The alleged improvements and
variations must be shown with respect to the material
particulars of the case and the occurrence. Every such
improvement, not directly related to the occurrence, is
not a ground to doubt the testimony of a witness. The
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credibility of a definite circumstance of the
prosecution case cannot be weakened with reference
to such minor or insignificant improvements.
.
Reference in this regard can be made to the judgments
of this Court in Kathi Bharat Vajsur v. State of Gujarat
[Kathi Bharat Vajsur v. State of Gujarat, (2012) 5 SCC
724 : (2012) 2 SCC (Cri) 740], Narayan Chetanram
Chaudhary v. State of Maharashtra [Narayan Chetanram
Chaudhary v. State of Maharashtra, (2000) 8 SCC 457:
2000 SCC (Cri) 1546], Gura Singh v. State of Rajasthan
of
[Gura Singh v. State of Rajasthan, (2001) 2 SCC 205: 2001
SCC (Cri) 323] and Sukhchain Singh v. State of Haryana
[Sukhchain Singh v. State of Haryana, (2002) 5 SCC 100:
2002 SCC (Cri) 961].
rt
31. What is to be seen next is whether the version
presented in the Court was substantially similar towhat was said during the investigation. It is only when
exaggeration fundamentally changes the nature of the
case that the Court has to consider whether the
witness was stating the truth or not. [Ref. Sunil Kumarv. State (NCT of Delhi) [Sunil Kumar v. State (NCT of
Delhi), (2003) 11 SCC 367: 2004 SCC (Cri) 1055]].
32. These are variations that would not amount to any
serious consequences. The Court has to accept thenormal conduct of a person. The witness who is
watching the murder of a person being brutally beaten
by 15 people can hardly be expected to state a minute-
by-minute description of the event. Everybody, and
more particularly a person who is known to or is
related to the deceased, would give all their attention
to take steps to prevent the assault on the victim and
then to make every effort to provide them with
medical aid and inform the police. The statements that
are recorded immediately upon the incident would
have to be given a little leeway with regard to the
statements being made and recorded with utmost
exactitude. It is a settled principle of law that every
improvement or variation cannot be treated as an
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attempt to falsely implicate the accused by the
witness. The approach of the court has to be
reasonable and practicable. Reference in this regard
.
can be made to Ashok Kumar v. State of Haryana [Ashok
Kumar v. State of Haryana, (2010) 12 SCC 350: (2011) 1
SCC (Cri) 266] and Shivlal v. State of Chhattisgarh
[Shivlal v. State of Chhattisgarh, (2011) 9 SCC 561: (2011)
3 SCC (Cri) 777].”
41. In Shyamal Ghosh v. State of W.B. [Shyamal Ghosh v.
State of W.B., (2012) 7 SCC 646: (2012) 3 SCC (Cri) 685], this
of
Court held: (SCC pp. 666-67, paras 46 & 49)
“46. Then, it was argued that there are certain
discrepancies and contradictions in the statements of
rt
the prosecution witnesses inasmuch as these
witnesses have given different timings as to when they
had seen the scuffling and strangulation of the
deceased by the accused. … Undoubtedly, some minor
discrepancies or variations are traceable in the
statements of these witnesses. But what the Court has
to see is whether these variations are material and
affect the case of the prosecution substantially. Every
variation may not be enough to adversely affect the
case of the prosecution.
***
49. It is a settled principle of law that the court should
examine the statement of a witness in its entirety and
read the said statement along with the statements of
other witnesses in order to arrive at a rational
conclusion. No statement of a witness can be read in
part and/or in isolation. We are unable to see any
material or serious contradiction in the statement of
these witnesses which may give any advantage to the
accused.”
42. In Rohtash Kumar v. State of Haryana [Rohtash Kumar
v. State of Haryana, (2013) 14 SCC 434: (2014) 4 SCC (Cri)
238], this Court held: (SCC p. 446, para 24)
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2026:HHC:17432
“24. … The court has to examine whether the evidence
read as a whole appears to have a ring of truth. Once
that impression is formed, it is undoubtedly necessary
.
for the court to scrutinise the evidence more,
particularly keeping in view the deficiencies,
drawbacks, and infirmities pointed out in the evidence
as a whole and evaluate them to find out whether it is
against the general tenor of the evidence given by the
witnesses and whether the earlier evaluation of the
evidence is shaken, as to render it unworthy of belief.
of
Thus, the court is not supposed to give undue
importance to omissions, contradictions and
discrepancies which do not go to the heart of the
matter and shake the basic version of the prosecution
rt
witness.”
22. Similar is the judgment in Anuj Singh v. State of Bihar,
2022 SCC OnLine SC 497: AIR 2022 SC 2817, wherein it was
observed:
“17. It is not disputed that there are minor contradictions
with respect to the time of the occurrence or injuriesattributed to the hand or foot, but the constant narrative
of the witnesses is that the appellants were present at theplace of occurrence, armed with guns, and they caused
the injury to the informant, PW-6. However, thetestimony of a witness in a criminal trial cannot be
discarded merely because of minor contradictions or
omissions, as observed by this court in Narayan
Chetanram Chaudhary & Anr. Vs. State of Maharashtra,
2000 8 SCC 457. This Court, while considering the issue of
contradictions in the testimony while appreciating the
evidence in a criminal trial, held that only contradictions
in material particulars and not minor contradictions can
be grounds to discredit the testimony of the witnesses.
The relevant portion of para 42 of the judgment reads as
follows:
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2026:HHC:17432
“42. Only such omissions that amount to a
contradiction in material particulars can be used to
discredit the testimony of the witness. The.
omission in the police statement by itself would not
necessarily render the testimony of the witness
unreliable. When the version given by the witness
in the court is different in material particulars from
that disclosed in his earlier statements, the case of
the prosecution becomes doubtful and not
otherwise. Minor contradictions are bound to
of
appear in the statements of truthful witnesses as
memory sometimes plays false, and the sense of
observation differs from person to person. The
omissions in the earlier statement, if found to be of
rt
trivial details, as in the present case, the same
would not cause any dent in the testimony of PW 2.
Even if there is a contradiction of a statement of a
witness on any material point, that is no ground to
reject the whole of the testimony of such witness.”
23. The contradictions pointed out in the present case do
not relate to the core of the prosecution case but to the matters
surrounding the recovery, which are bound to come with time.
Further, the learned Courts below rightly held that the accused
had admitted the recovery of the liquor from their car and the
fact that the accused Sanjay was driving the car and Nek Ram
was travelling in it. Therefore, these contradictions will become
insignificant. It was laid down by the Hon’ble Supreme Court in
State of Maharashtra v. Sukhdev Singh, (1992) 3 SCC 700: 1992 SCC
(Cri) 705: 1992 SCC OnLine SC 421 that the Courts can rely upon
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the statement of the accused recorded under section 313 of the
Cr.P.C. It was observed at page 742:
.
“51. That brings us to the question of whether such a
statement recorded under Section 313 of the Code can
constitute the sole basis for conviction. Since no oath isadministered to the accused, the statements made by the
accused will not be evidence stricto sensu. That is why
sub-section (3) says that the accused shall not renderof
himself liable to punishment if he gives false answers.
Then comes sub-section (4), which reads:
“313. (4) The answers given by the accused may be
taken into consideration in such inquiry or trial, and
rt
put in evidence for or against him in any other
inquiry into, or trial for, any other offence whichsuch answers may tend to show he has committed.”
Thus, the answers given by the accused in response to his
examination under Section 313 can be taken into
consideration in such an inquiry or trial. This much is
clear on a plain reading of the above sub-section.
Therefore, though not strictly evidence, sub-section (4)
permits that it may be taken into consideration in the said
inquiry or trial. See State of Maharashtra v. R.B. Chowdhari
(1967) 3 SCR 708: AIR 1968 SC 110: 1968 Cri LJ 95. This
Court, in the case of Hate Singh Bhagat Singh v. State of
M.B. 1951 SCC 1060: 1953 Cri LJ 1933: AIR 1953 SC 468, held
that an answer given by an accused under Section 313
examination can be used for proving his guilt as much as
the evidence given by a prosecution witness. In Narain
Singh v. State of Punjab (1963) 3 SCR 678: (1964) 1 Cri LJ
730, this Court held that if the accused confesses to the
commission of the offence with which he is charged, the
Court may, relying upon that confession, proceed to
convict him. To state the exact language in which the
three-Judge bench answered the question, it would be
advantageous to reproduce the relevant observations at
pages 684-685:
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“Under Section 342 of the Code of Criminal
Procedure by the first sub-section, insofar as it is
material, the Court may at any stage of the enquiry.
or trial and after the witnesses for the prosecution
have been examined and before the accused is
called upon for his defence shall put questions to
the accused person for the purpose of enabling himto explain any circumstance appearing in the
evidence against him. Examination under Section
342 is primarily to be directed to those matters onof
which evidence has been led for the prosecution to
ascertain from the accused his version or
explanation, if any, of the incident which forms the
subject-matter of the charge and his defence. By
rt
sub-section (3), the answers given by the accused
may ‘be taken into consideration’ at the enquiry orthe trial. If the accused person in his examination
under Section 342 confesses to the commission of the
offence charged against him the court may, relying
upon that confession, proceed to convict him, but if hedoes not confess and in explaining circumstance
appearing in the evidence against him sets up his
own version and seeks to explain his conductpleading that he has committed no offence, the
statement of the accused can only be taken intoconsideration in its entirety.” (emphasis supplied)
Sub-section (1) of Section 313 corresponds to sub-section(1) of Section 342 of the old Code, except that it now
stands bifurcated in two parts with the proviso added
thereto clarifying that in summons cases where the
presence of the accused is dispensed with, his
examination under clause (b) may also be dispensed with.
Sub-section (2) of Section 313 reproduces the old sub-
section (4), asd the present sub-section (3) corresponds
to the old sub-section (2) except for the change
necessitated on account of the abolition of the jury
system. The present sub-section (4) with which we are
concerned is a verbatim reproduction of the old sub-
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2026:HHC:17432
section (3). Therefore, the aforestated observations apply
with equal force.”
24. It was laid down by the Hon’ble Supreme Court in
.
Mohan Singh v. Prem Singh, (2002) 10 SCC 236: 2003 SCC (Cri)
1514: 2002 SCC OnLine SC 933, that the statement made by the
accused under Section 313 Cr.P.C. can be used to lend credence to
of
the evidence led by the prosecution, but such statement cannot
form the sole basis for conviction. It was observed at page 244:
rt
27. The statement made in defence by the accused under
Section 313 CrPC can certainly be taken aid of to lendcredence to the evidence led by the prosecution, but only
a part of such statement under Section 313 of the Code of
Criminal Procedure cannot be made the sole basis of his
conviction. The law on the subject is almost settled thatthe statement under Section 313 CrPC of the accused can
either be relied on in whole or in part. It may also be
possible to rely on the inculpatory part of his statement ifthe exculpatory part is found to be false on the basis of
the evidence led by the prosecution. See Nishi Kant Jha v.
State of Bihar (1969) 1 SCC 347: AIR 1969 SC 422: (SCC pp.
357-58, para 23)
“23. In this case, the exculpatory part of the
statement in Exhibit 6 is not only inherently
improbable but is contradicted by the other
evidence. According to this statement, the injury
that the appellant received was caused by the
appellant’s attempt to catch hold of the hand of Lal
Mohan Sharma to prevent the attack on the victim.
This was contradicted by the statement of the
accused himself under Section 342 CrPC to the effect
that he had received the injury in a scuffle with a
herdsman. The injury found on his body when he
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was examined by the doctor on 13-10-1961,
negatives of both these versions. Neither of these
versions accounts for the profuse bleeding which led
.
to his washing his clothes and having a bath in River
Patro, the amount of bleeding and the washing of
the bloodstains being so considerable as to attract
the attention of Ram Kishore Pandey, PW 17 and
asking him about the cause thereof. The bleeding
was not a simple one as his clothes all got stained
with blood, as also his books, his exercise book, his
of
belt and his shoes. More than that, the knife which
was discovered on his person was found to have
been stained with blood according to the report of
the Chemical Examiner. According to the post-
rt
mortem report, this knife could have been the cause
of the injuries on the victim. In circumstances like
these, there being enough evidence to reject the
exculpatory part of the statement of the appellant in
Exhibit 6, the High Court had acted rightly in accepting
the inculpatory part and piercing the same with the
other evidence to come to the conclusion that the
appellant was the person responsible for the crime.”
(emphasis supplied)
25. It was laid down in Ramnaresh v. State of
Chhattisgarh, (2012) 4 SCC 257: (2012) 2 SCC (Cri) 382: 2012 SCC
OnLine SC 213, that the statement of the accused under Section
313 Cr.P.C., in so far as it supports the prosecution’s case, can be
used against him for recording a conviction. It was observed at
page 275: –
“52. It is a settled principle of law that the obligation to
put material evidence to the accused under Section 313
CrPC is upon the court. One of the main objects of
recording a statement under this provision of the CrPC is::: Downloaded on – 23/05/2026 08:33:15 :::CIS
27
2026:HHC:17432to give an opportunity to the accused to explain the
circumstances appearing against him as well as to put
forward his defence, if the accused so desires. But once he.
does not avail this opportunity, then consequences in law
must follow. Where the accused takes advantage of this
opportunity, then his statement made under Section 313
CrPC, insofar as it supports the case of the prosecution,can be used against him for rendering a conviction. Even
under the latter, he faces the consequences in law.”
26. This position was reiterated in Ashok Debbarma v.
of
State of Tripura, (2014) 4 SCC 747: (2014) 2 SCC (Cri) 417: 2014 SCC
OnLine SC 199, and it was held that the statement of the accused
rt
recorded under Section 313 of the Cr.P.C. can be used to lend
corroboration to the statements of prosecution witnesses. It
was held at page 761: –
24. We are of the view that, under Section 313 statement,
if the accused admits that, from the evidence of variouswitnesses, four persons sustained severe bullet injuries
by the firing by the accused and his associates, thatadmission of guilt in Section 313 statement cannot be
brushed aside. This Court in State of Maharashtra v.
Sukhdev Singh [(1992) 3 SCC 700: 1992 SCC (Cri) 705 held
that since no oath is administered to the accused, the
statement made by the accused under Section 313 CrPC
will not be evidence stricto sensu and the accused, of
course, shall not render himself liable to punishment
merely on the basis of answers given while he was being
examined under Section 313 CrPC. But, sub-section (4)
says that the answers given by the accused in response to
his examination under Section 313 CrPC can be taken
into consideration in such an inquiry or trial. This Court
in Hate Singh Bhagat Singh v. State of Madhya Bharat, 1951
SCC 1060: AIR 1953 SC 468: 1953 Cri LJ 1933 held that the
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2026:HHC:17432
answers given by the accused under Section 313
examination can be used for proving his guilt as much as
the evidence given by the prosecution witness. In Narain
.
Singh v. State of Punjab (1964) 1 Cri LJ 730: (1963) 3 SCR
678, this Court held that when the accused confesses to
the commission of the offence with which he is charged,
the court may rely upon the confession and proceed to
convict him.
25. This Court in Mohan Singh v. Prem Singh (2002) 10
SCC 236: 2003 SCC (Cri) 1514 held that: (SCC p. 244, para
of
27)
“27. The statement made in defence by the
rt accused under Section 313 CrPC can certainly be
taken aid of to lend credence to the evidence led
by the prosecution, but only a part of such
statement under Section 313 CrPC cannot be
made the sole basis of his conviction.”
In this connection, reference may also be made to the
judgments of this Court in Devender Kumar Singla v.
Baldev Krishan Singla (2005) 9 SCC 15: 2005 SCC (Cri) 1185
and Bishnu Prasad Sinha v. State of Assam (2007) 11 SCC
467: (2008) 1 SCC (Cri) 766. The abovementioned decisions
would indicate that the statement of the accused under
Section 313 CrPC for the admission of his guilt or
confession as such cannot be made the sole basis for
finding the accused guilty, the reason being he is not
making the statement on oath, but all the same the
confession or admission of guilt can be taken as a piece of
evidence since the same lends credence to the evidence
led by the prosecution.
26. We may, however, indicate that the answers given by
the accused while examining him under Section 313, fully
corroborate the evidence of PW 10 and PW 13 and hence
the offences levelled against the appellant stand proved,
and the trial court and the High Court have rightly found
him guilty for the offences under Sections 326, 436 and
302 read with Section 34 IPC.”
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2026:HHC:17432
27. Therefore, the admissions made by the accused in
their statements recorded under Section 313 of the Cr.P.C. could
.
have been used to lend corroboration to the prosecution’s case,
and once the prosecution’s version was admitted by the accused,
the minor contradictions related to the periphery of the case
would become insignificant.
of
28. It was submitted that the recovery was effected from
rt
a car and provisions of Section 100 (4) of the Cr.P.C. would apply
to the present case. The prosecution had failed to comply with
the requirements of Section 100 (4) of the Cr.P.C., and the
prosecution’s case is doubtful. This submission cannot be
accepted. The learned courts below had rightly pointed out that
the police had no prior information, and it was a case of chance
recovery. The police became suspicious of the conduct of the
accused and searched the car, leading to the recovery of the
liquor. It was laid down by the Hon’ble Supreme Court in
Kashmira Singh Versus State of Punjab 1999 (1) SCC 130 that the
police party is under no obligation to join independent witnesses
while going on patrolling duty, and the association of any
person after effecting the recovery would be meaningless. It was
observed:
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2026:HHC:17432
“3. Learned counsel for the appellant has taken us
through the evidence recorded by the prosecution, as also
the judgment under appeal. Except for the comment that.
the prosecution is supported by two police officials and
not by any independent witness, no other comment
against the prosecution is otherwise offered. This
comment is not of any value since the police party was on
patrolling duty, and they were not required to take along
independent witnesses to support recovery if and when
made. It has come to the evidence of ASI Jangir Singh that
of
after the recovery had been effected, some people had
passed by. Even so, obtaining their counter-signatures on
the documents already prepared would not have lent any
further credence to the prosecution’s version.”
rt
29. It was laid down by this court in Chet Ram Vs State,
Criminal Appeal No. 151/2006, decided on 25.7.2018, that the non-
association of independent witnesses in a case of chance
recovery is not fatal to the prosecution’s case. It was observed: –
“(A)appellant was intercepted, and a search of his bag
was conducted on suspicion, when he turned back and
tried to flee, on seeing the police. Police officials did nothave any prior information, nor did they have any reason
to believe that he was carrying any contraband. Theyoverpowered him when he tried to run away and
suspected that he might be carrying some contraband in
his bag. Therefore, the bag was searched, and Charas was
recovered. After the recovery of Charas, there was hardly
any need to associate with any person from the nearby village
because there was nothing to be witnessed.
It is by now well settled that non-association of
independent witnesses or non-support of the
prosecution’s version by independent witnesses where
they are associated, by itself, is not a ground to acquit an
accused. It is also well-settled that the testimony of
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2026:HHC:17432
official witnesses, including police officials, carries the
same evidentiary value as the testimony of any other
person. The only difference is that Courts have to be
.
more circumspect while appreciating the evidence of
official witnesses to rule out the possibility of false
implication of the accused, especially when such a plea is
specifically raised by the defence. Therefore, while
scrutinising the evidence of official witnesses, in a case
where independent witnesses are not associated,
contradictions and inconsistencies in the testimony of
of
such witnesses are required to be taken into account and
given due weightage unless satisfactorily explained. Of
course, it is only the material contradictions and not the
trivial ones, which assume significance.” (Emphasis
rt
supplied)
30. It was laid down by the Hon’ble Supreme Court of
India in Raveen Kumar v. State of H.P., (2021) 12 SCC 557: (2023) 2
SCC (Cri) 230: 2020 SCC OnLine SC 869 that non-association of
the independent witnesses will not be fatal to the prosecution
case. However, the Court will have to scrutinise the statements
of prosecution witnesses carefully. It was observed on page 566:
“(C) Need for independent witnesses
19. It would be gainsaid that the lack of independent
witnesses is not fatal to the prosecution’s case. [Kalpnath
Rai v. State, (1997) 8 SCC 732: 1998 SCC (Cri) 134: AIR 1998
SC 201, para 9] However, such omissions cast an added
duty on courts to adopt a greater degree of care while
scrutinising the testimonies of the police officers, which,
if found reliable, can form the basis of a successful
conviction.”
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2026:HHC:17432
31. This position was reiterated in Rizwan Khan v. State
of Chhattisgarh, (2020) 9 SCC 627: 2020 SCC OnLine SC 730,
.
wherein it was observed at page 633:
“12. It is settled law that the testimony of the official
witnesses cannot be rejected on the grounds of non-
corroboration by independent witnesses. As observed and
held by this Court in a catena of decisions, examination ofof
independent witnesses is not an indispensable
requirement and such non-examination is not
necessarily fatal to the prosecution’s case [see Pardeep
Kumar [State of H.P. v. Pardeep Kumar, (2018) 13 SCC 808:
rt
(2019) 1 SCC (Cri) 420]].
13. In the recent decision in Surinder Kumar v. State of
Punjab [Surinder Kumar v. State of Punjab, (2020) 2 SCC
563: (2020) 1 SCC (Cri) 767], while considering somewhat
similar submission of non-examination of independent
witnesses, while dealing with the offence under the NDPS
Act, in paras 15 and 16, this Court observed and held as
under: (SCC p. 568)
“15. The judgment in Jarnail Singh v. State of Punjab
[Jarnail Singh v. State of Punjab, (2011) 3 SCC 521: (2011)
1 SCC (Cri) 1191], relied on by the counsel for the
respondent State, also supports the case of the
prosecution. In the aforesaid judgment, this Court has
held that merely because the prosecution did not
examine any independent witness would not
necessarily lead to a conclusion that the accused was
falsely implicated. The evidence of official witnesses
cannot be distrusted and disbelieved merely on
account of their official status.
16. In State (NCT of Delhi) v. Sunil [State (NCT of Delhi)
v. Sunil, (2001) 1 SCC 652: 2001 SCC (Cri) 248], it was
held as under: (SCC p. 655)
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2026:HHC:17432
‘It is an archaic notion that actions of the police
officer should be approached with initial distrust. It
is time now to start placing at least initial trust in
.
the actions and the documents made by the police.
At any rate, the court cannot start with the
presumption that the police records are
untrustworthy. As a proposition of law, the
presumption should be the other way around. That
official acts of the police have been regularly
performed is a wise principle of presumption and
of
recognised even by the legislature.’
32. Similar is the judgment of this Court in Balwinder
Singh & Anr. Vs State of H.P., 2020 Criminal L.J. 1684, wherein it
rt
was held: –
“3. (iii) Learned defence counsel contended that in the
instant case, no independent witness was associated by
the Investigating Officer; therefore, the prosecution casecannot be said to have been proved by it in accordance
with provisions of the Act. Learned defence counsel, in
support of his contention, relied upon the titled KrishanChand versus State of H.P.,2017 4 CriCC 531
3(iii)(d). It is by now well settled that a prosecution case
cannot be disbelieved only because the independent
witnesses were not associated.”
33. This position was reiterated in Kallu Khan v. State of
Rajasthan, (2021) 19 SCC 197: 2021 SCC OnLine SC 1223, wherein it
was held at page 204: –
“17. The issue raised regarding conviction solely relying
upon the testimony of police witnesses, without
procuring any independent witness, recorded by the two
courts, has also been dealt with by this Court in Surinder
Kumar [Surinder Kumar v. State of Punjab, (2020) 2 SCC::: Downloaded on – 23/05/2026 08:33:15 :::CIS
34
2026:HHC:17432563 : (2020) 1 SCC (Cri) 767] holding that merely because
independent witnesses were not examined, the
conclusion could not be drawn that the accused was.
falsely implicated. Therefore, the said issue is also well
settled and in particular, looking at the facts of the
present case, when the conduct of the accused was found
suspicious, and a chance recovery from the vehicle usedby him is made from a public place and proved beyond a
reasonable doubt, the appellant cannot avail any benefit
on this issue. In our view, the concurrent findings of theof
courts do not call for interference.”
34. A similar view was taken in Kehar Singh v. State of
H.P., 2024 SCC OnLine HP 2825, wherein it was observed:
rt
16. As regards non-association of the independent
witnesses, it is now well settled that non-association of
the independent witnesses or non-support of the
prosecution version by independent witnesses itself is nota ground for acquittal of the Appellants/accused. It is also
well-settled that the testimonies of the official witnesses,
including police officials, carry the same evidentiary
value as the testimony of any other person. The onlydifference is that the Court has to be most circumspect
while appreciating the evidence of the official witnesses
to rule out the possibility of false implication of the
accused, especially when such a plea is specifically raisedby the defence. Therefore, while scrutinising the evidence
of the official witnesses, in cases where independent
witnesses are not associated, contradictions and
inconsistencies in the testimonies of such witnesses are
required to be taken into account and given due
weightage unless satisfactorily explained. However, the
contradiction must be a material and not trivial one,
which alone would assume significance.
17. Evidently, this is a case of chance recovery; therefore,
the police party was under no obligation to join
independent witnesses while going on patrolling duty,::: Downloaded on – 23/05/2026 08:33:15 :::CIS
35
2026:HHC:17432and the association of any person after effecting the
recovery would be meaningless.
Xxxx
.
19. A similar reiteration of law can be found in the
judgment rendered by the learned Single Judge of this
Court in Avtar @ Tarri v. State of H.P., (2022) Supreme HP
345, wherein it was observed as under: —
“24. As regards the second leg of the argument raised
by learned counsel for the appellant, it cannot be saidof
to be of much relevance in the given facts of the case.
The fact situation was that the police party had laid the
‘nakka’ and immediately thereafter had spotted the
appellant at some distance, who got perplexed and
rt
started walking back. The conduct of the appellant was
sufficient to raise suspicion in the minds of policeofficials. At that stage, had the appellant not been
apprehended immediately, the police could have lost
the opportunity to recover the contraband. Looking
from another angle, the relevance of independentwitnesses could be there when such witnesses were
immediately available or had already been associated
at the place of ‘nakka’. These, however, are notmandatory conditions and will always depend on the
fact situation of each and every case. The reason is thatonce the person is apprehended and is with the police,
a subsequent association of independent witnesses
may not be of much help. In such events, themanipulation, if any, cannot be ruled out.”
Xxxx
22. A similar reiteration of law can be found in a very
recent judgment of the Coordinate Bench of this Court in
Cr. A. No. 202 of 2020, titled Dillo Begum v. State of H.P.,
decided on 27.03.2024.”
35. In any case, it was laid down by the Hon’ble Supreme
Court in State of Punjab v. Balbir Singh, (1994) 3 SCC 299: 1994
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2026:HHC:17432
SCC (Cri) 634: 1994 SCC OnLine SC 126 that non-compliance with
a provision of Section 100 (4) of the Cr.P.C. is not fatal to the
.
prosecution case, unless some prejudice has been caused to the
accused. It was observed at page 309:
“6. At this juncture, we may also dispose of one of the
contentions that failure to comply with the provisions ofof
CrPC in respect of search and seizure, even up to that
stage, would also vitiate the trial. This aspect has been
considered in a number of cases, and it has been held that
the violation of the provisions, particularly that of
rt
Sections 100, 102, 103 or 165 CrPC, strictly per se does not
vitiate the prosecution case. If there is such a violation,what the courts have to see is whether any prejudice was
caused to the accused and in appreciating the evidence
and other relevant factors, the courts should bear in mind
that there was such a violation and, from that point ofview, evaluate the evidence on record. Under Section 100
CrPC, the officer conducting a search under a warrant
should call upon two or more independent andrespectable inhabitants of the locality in which the place
to be searched is situated or of any other locality if nosuch inhabitant of the said locality is available or is
willing to be a witness to the search, to attend and
witness the search. Section 165 CrPC lays down thatwhenever an officer-in-charge of a police station or a
police officer making an investigation has reasonable
grounds for believing that anything necessary for the
purposes of an investigation into any offence which he is
authorised to investigate may be found in any place
within the limits of the police station of which he is in-
charge, or to which he is attached, and that such thing
cannot in his opinion be otherwise obtained without
undue delay, such officer after recording in writing the
grounds of his belief and specifying in such writing, may
proceed to search or to cause search to be made. Section::: Downloaded on – 23/05/2026 08:33:15 :::CIS
37
2026:HHC:17432165(4) lays down that the provisions of this Code as to
search warrants and the general provisions as to searches
contained in Section 100 shall, so far as may be, apply to a.
search made under Section 165 also. The scope of these
two sections has been examined in a number of cases. In
State of Punjab v. Wassan Singh [(1981) 2 SCC 1: 1981 SCC
(Cri) 292], this Court has clearly held that irregularity in asearch cannot vitiate the seizure of the articles. In Sunder
Singh v. State of U.P. [AIR 1956 SC 411: 1956 Cri LJ 801], it is
held that irregularity cannot vitiate the trial unless theof
accused has been prejudiced by the defect, and it is also
held that if reliable local witnesses are not available, the
search would not be vitiated. In State of Maharashtra v.
P.K. Pathak [(1980) 2 SCC 259: 1980 SCC (Cri) 428: AIR 1980
rt
SC 1224], it is held that the absence of any independent
witness from the locality to witness the search does not
affect the trial and the conviction of the accused under
the Customs Act. In Radha Kishan v. State of U.P. [AIR 1963
SC 822: 1963 Supp (1) SCR 408 : (1963) 2 LLJ 667], it is held
that irregularity in a search would, however, cast a duty
upon the court to scrutinise the evidence regarding the
search very carefully. In Matajog Dobey v. H.C. Bhari [AIR
1956 SC 44 : (1955) 2 SCR 925: 1956 Cri LJ 140] it is held that
when the salutory provisions have not been complied
with, it may, however, affect the weight of the evidence in
support of the search or may furnish a reason for
disbelieving the evidence produced by the prosecution
unless the prosecution properly explains such
circumstance which made it impossible for it to comply
with these provisions. In the State of Maharashtra v.
Natwarlal Damodardas Soni [(1980) 4 SCC 669: 1981 SCC
(Cri) 98: AIR 1980 SC 593], after referring to the above-
mentioned decisions, this Court observed as under: (SCC
p. 673, para 9)
“Taking the first contention first, it may be observed
that the police had powers under the Code of Criminal
Procedure to search and seize this gold if they had
reason to believe that a cognizable offence had been
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2026:HHC:17432
committed in respect thereof. Assuming arguendo that
the search was illegal, then also, it will not affect the
validity of the seizure and further investigation by the
.
Customs Authorities or the validity of the trial which
followed on the complaint of the Assistant Collector of
Customs.”
7. It therefore emerges that non-compliance of these
provisions, i.e. Sections 100 and 165 CrPC, would amount
to an irregularity and the effect of the same on the main
case depends upon the facts and circumstances of each
of
case. Of course, in such a situation, the court has to
consider whether any prejudice has been caused to the
accused and also examine the evidence in respect of the
search in the light of the fact that these provisions have
rt
not been complied with and further consider whether the
weight of evidence is in any manner affected because of
the non-compliance. It is well settled that the testimony
of a witness is not to be doubted or discarded merely on
the ground that he happens to be an official, but as a rule
of caution, and depending upon the circumstances of the
case, the courts look for independent corroboration. This
again depends on the question whether the official has
deliberately failed to comply with these provisions, or
failure was due to lack of time and opportunity to
associate some independent witnesses with the search
and strictly comply with these provisions. In Deepak
Ghanshyam Naik v. State of Maharashtra [1989 Cri LJ 1181:
1989 Mah LJ 276 (Bom)] a case arising under the NDPS
Act, a Division Bench of the Bombay High Court
considered the effect of non-compliance of Section
100(4) namely that two or more independent respectable
inhabitants of the locality were not called to be present
during the search and that on the other hand two Panchas
of different locality were called to be present. The
Division Bench considered the explanation that Parnaka
was at a distance of half a kilometre from the place of
occurrence, and they called the Panch witnesses from
that place and that they could not call somebody present::: Downloaded on – 23/05/2026 08:33:15 :::CIS
39
2026:HHC:17432on the road where the incident took place and held that
there was no material to hold that the Panch witnesses
from Parnaka were in any way motivated to falsely.
implicate the accused. In Sunil Kumar v. State [1990 Cri LJ
414 (Del)] again a case arising under the NDPS Act, the
Delhi High Court while considering the scope of Section
42 of the NDPS Act and Section 100(4) of CrPC observedthat failure to associate independent persons in the
search in a given situation would not affect the
prosecution case in toto and the same cannot be thrownof
out or doubted on that ground alone. In this case, it has
also been observed that provisions of Sections 41 or 42
would not be attracted at this stage when the police had
secret information that some persons would be reaching
rt
in a public place while in transit, and the information was
not about the specific presence of contraband but wasonly about the likelihood of such articles being brought. It
thus emerges that when the police, while acting under the
provisions of CrPC as empowered therein and while
exercising surveillance or investigating into otheroffences, had to carry out the arrests or searches, they
would be acting under the provisions of CrPC. At this
stage, if there is any non-compliance of the provisions ofSection 100 or Section 165 CrPC that by itself cannot be a
ground to reject the prosecution case outright. The effectof such non-compliance will have a bearing on the
appreciation of evidence of the official witness and other
material depending upon the facts and circumstances ofeach case….
36. A similar view was taken by this Court in State of H.P.
v. Sukh Ram, 2002 SCC OnLine HP 95: 2003 Cri LJ 219, wherein it
was observed at page 220:
13. Even otherwise, failure to comply with the provisions
of Section 100(4), Code of Criminal Procedure, will not
invariably be fatal to the prosecution. This is because the::: Downloaded on – 23/05/2026 08:33:15 :::CIS
40
2026:HHC:17432circumstances of the case may be such as to make it
totally unreasonable and impracticable, if not impossible,
to procure the presence of such witnesses. The possibility.
of such a circumstance has been noted by the Hon’ble
Apex Court in the State of Maharashtra v. P.K. Pathak,
(1980) 2 SCC 259: AIR 1980 SC 1224: (1980 Cri LJ 923).
Nevertheless, it would be for the prosecution to establish,
on the facts and in the circumstances of each case, that
meeting the requirements of Section 100(4), Code of
Criminal Procedure, pertaining to the association of two
of
or more independent and respectable persons with the
conducting of a search was not possible or practicable.
(See: Smt. Prem Lata v. State of Himachal Pradesh (1987)
Cri LJ 1539 (Him Pra)).
rt
14. In Sunder Singh v. State of Uttar Pradesh, AIR 1956 SC
411: (1956 Cri LJ 801), it was held that, assuming that the
two witnesses associated during the course of the search
were not respectable inhabitants of the locality, that
circumstance would not invalidate the search. It would
only affect the weight of the evidence in support of the
search and recovery. Hence, at the highest, the
irregularity in the search and recovery, insofar as the
terms of S. 103, Code of Criminal Procedure, 1898 (now
Section 100(4), Code of Criminal Procedure, 1973) had not
been fully complied with, would not affect the legality of
the proceedings. It only affected the weight of evidence,
which is a matter for the Courts of fact to see.
37. In the present case, the accused/petitioners have not
claimed any prejudice to them; rather, they admitted their
presence in the car and the recovery of liquor from the car.
Therefore, the prosecution’s case cannot be doubted because of
non-compliance with Section 100 (4) of the CrPC.
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2026:HHC:17432
38. It was submitted that the case property did not have
the seal when it was produced before the Court. This submission
.
will not help the accused. The learned courts below had rightly
pointed out that the recovery of the liquor was not in dispute.
The integrity of the case property was established by the
certificate issued by the chemical examiner, in which it was
of
stated that the samples were properly sealed and the seals were
tallied with the specimen seal sent separately. It was held in
rt
Baljit Sharma vs. State of H.P 2007 HLJ 707, where the report of
analysis shows that the seals were intact, and the prosecution’s
claim that the case property remained intact is to be accepted as
correct. It was observed:
“A perusal of the report of the expert Ex.PW8/A shows
that the samples were received by the expert in a safemanner, and the sample seal separately sent and tallied
with the specimen impression of a seal taken separately.
Thus, there was no tampering with the seal, and the sealimpressions were separately taken and sent to the expert
also.”
39. Similar is the judgment in Hardeep Singh vs. State of
Punjab 2008(8) SCC 557, wherein it was held:
“It has also come on evidence that to date the parcels of
the sample were received by the Chemical Examiner, the
seal put on the said parcels was intact. That itself proves
and establishes that there was no tampering with the::: Downloaded on – 23/05/2026 08:33:15 :::CIS
42
2026:HHC:17432previously mentioned seal in the sample at any stage,
and the sample received by the analyst for chemical
examination contained the same opium, which was.
recovered from the possession of the appellant. In that
view of the matter, a delay of about 40 days in sending
the samples did not and could not have caused any
prejudice to the appellant.”
40. In State of Punjab vs. Lakhwinder Singh 2010 (4) SCC
402, the High Court had concluded that there could have been
of
tampering with the case property since there was a delay of
seven days in sending the report to FSL. It was laid down by the
rt
Hon’ble Supreme Court that case property was produced in the
Court, and there was no evidence of tampering. Seals were found
to be intact, which would rule out the possibility of tampering. It
was observed:
“The prosecution has been able to establish and prove
that the aforesaid bags, which were 35 in number,contained poppy husk and accordingly the same were
seized after taking samples therefrom, which were
properly sealed. The defence has not been able to provethat the aforesaid seizure and seal put in the samples were
in any manner tampered with before it was examined by
the Chemical Examiner. There was merely a delay of about
seven days in sending the samples to the Forensic
Examiner, and it is not proved as to how the aforesaid
delay of seven days has affected the said examination,
when it could not be proved that the seal of the sample
was in any manner tampered with. The seal having been
found intact at the time of the examination by the
Chemical Examiner and the said fact having been
recorded in his report, a mere observation by the High::: Downloaded on – 23/05/2026 08:33:15 :::CIS
43
2026:HHC:17432Court that the case property might have been tampered
with, in our opinion, is based on surmises and conjectures
and cannot take the place of proof.
.
17. We may at this stage refer to a decision of this Court in
Hardip Singh v. State of Punjab reported in (2008) 8 SCC 557
in which there was a delay of about 40 days in sending the
sample to the laboratory after the same was seized. In thesaid decision, it was held that in view of cogent and
reliable evidence that the opium was seized and sealed
and that the samples were intact till they were handedof
over to the Chemical Examiner, the delay itself was held
to be not fatal to the prosecution’s case. In our considered
opinion, the ratio of the aforesaid decision squarely
applies to the facts of the present case in this regard.
rt
18. The case property was produced in the Court, and there
is no evidence to show that the same was ever tamperedwith.”
41. Similar is the judgment of the Hon’ble Supreme
Court in Surinder Kumar vs. State of Punjab, (2020) 2 SCC 563,
wherein it was held: –
10. According to learned senior counsel for the appellant,
Joginder Singh, ASI to whom Yogi Raj, SHO (PW-3),
handed over the case property for producing the samebefore the Illaqa Magistrate and who returned the same to
him after such production was not examined, as such link
evidence was incomplete. In this regard, it is to be noticed
that Yogi Raj, SHO, handed over the case property to
Joginder Singh, ASI, for production before the Court. After
producing the case property before the Court, he returned
the case property to Yogi Raj, SHO (PW-3), with the seals
intact. It is also to be noticed that Joginder Singh, ASI, was
not in possession of the seals of either the investigating
officer or Yogi Raj, SHO. He produced the case property
before the Court on 13.09.1996 vide application Ex.P-13,
the concerned Judicial Magistrate of First Class, after::: Downloaded on – 23/05/2026 08:33:15 :::CIS
44
2026:HHC:17432verifying the seals on the case property, passed the order
Ex.P-14 to the effect that since there was no judicial
malkhana at Abohar, the case property was ordered to be.
kept in safe custody, in Police Station Khuian Sarwar till
further orders. Since Joginder Singh, ASI, was not in
possession of the seals of either the SHO or the
Investigating Officer, the question of tampering with the
case property by him did not arise at all.
11. Further, he has returned the case property, after
production of the same, before the Illaqa Magistrate, with
of
the seals intact, to Yogi Raj, SHO. In that view of the
matter, the Trial Court and the High Court have rightly
held that the non-examination of Joginder Singh did not,
in any way, affect the case of the prosecution. Further, it is
rt
evident from the report of the Chemical Examiner, Ex.P-10,
that the sample was received with seals intact and that the
seals on the sample tallied with the sample seals. In that view
of the matter, the chain of evidence was complete.”
(Emphasis supplied)
42. Thus, the integrity of the case property till the
analysis was established by the report of analysis. Once it was
proved by the report of the analysis that the samples contained
proof alcohol in them, the absence of a seal on the case property
produced before the Court would become insignificant. Further,
the witnesses had duly identified the case property in the Court,
and simply because the seal was found to be broken cannot lead
to an inference that the case property was tampered with.
43. It was submitted that Rakesh Kumar (PW6) has not
supported the prosecution’s case. This fact will not affect the
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2026:HHC:17432
prosecution’s case. He only stated that he had not engaged any
driver to drive the car, and he used to drive the car on his own.
.
The accused have not disputed the fact that Sanjay was driving
the car and Nek Ram was travelling in the car. Therefore, the
statement made by the owner that he had not engaged any
person to drive the car or that he used to drive the car himself
of
will not make the prosecution suspect the case.
44.
rt
Therefore, the learned Courts below had rightly
appreciated the evidence and the judgment of conviction
recorded by the learned Trial Court, as affirmed by the learned
Appellate Court, cannot be faulted.
45. The learned Trial Court had submitted the case file to
the learned Chief Judicial Magistrate because the offence was
punishable with a minimum imprisonment of three years and a
fine of not less than one lakh rupees. The Learned Chief Judicial
Magistrate sentenced the accused to undergo simple
imprisonment for four months each and pay a fine of ₹5000/-
each, which is less than the minimum prescribed sentence. The
Learned Chief Judicial Magistrate has already shown leniency to
the accused, and no further leniency is possible in the matter.
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2026:HHC:17432
Therefore, the sentence imposed by the learned Chief Judicial
Magistrate, as affirmed by the learned Appellate Court, cannot
.
be interfered with.
46. No other point was urged.
47. In view of the above, the present revision fails, and it
of
is dismissed.
48. The present revision stands disposed of, and so are
rt
the pending miscellaneous application(s), if any.
49. The record of the learned Courts below be returned
with a copy of the judgment.
(Rakesh Kainthla)
Judge
18th May, 2026
(Nikita)
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