Himachal Pradesh High Court
Pawan Kumar vs State Of Himachal Pradesh on 1 April, 2026
2026:HHC:9659
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeals No. 202, 203, 204 and
.
205 of 2014
Reserved on: 27.02.2026
Date of Decision: 01.04.2026.
1. Cr. Appeal No. 202 of 2014
Pawan Kumar ...Appellant
of
Versus
State of Himachal Pradesh
rt ...Respondent
______________________________________
2. Cr. Appeal No. 203 of 2014
Brij Lal ...Appellant
Versus
State of Himachal Pradesh ...Respondent
______________________________________
3. Cr. Appeal No. 204 of 2014
Kanchan Kumar ...Appellant
Versus
State of Himachal Pradesh ...Respondent
______________________________________
4. Cr. Appeal No. 205 of 2014
Sanjeev Kumar @ Sanju ...Appellant
Verus
State of Himachal Pradesh ...Respondent
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Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
.
For the Appellant(s) : Mr Rajiv Rai, Advocate, in all the
appeals.
For Respondent/State : Mr Lokender Kutlehria, Additional
Advocate General, in all the appeals.
of
Rakesh Kainthla, Judge
The present appeals are directed against the judgment
rt
of conviction dated 28.04.2014, and order of sentence dated
30.04.2014 passed by learned Additional Sessions Judge,
Ghumarwin, District Bilaspur, H.P. (learned Trial Court) vide
which the respondents (accused before the learned Trial Court)
were convicted and sentenced as under: –
Sections Sentences
363 read with The accused were sentenced to
Section 120-B of IPC undergo rigorous imprisonment for
three years each, pay a fine of
₹5000/- each, and in default of
payment of fine to undergo further
simple imprisonment for six months
each.
366 read with The accused were sentenced to
Section 120-B of IPC undergo rigorous imprisonment for
five years each, pay a fine of ₹5,000/-
1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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each, and in default of payment of the
fine, to undergo further simple
imprisonment for six months each.
.
Accused Sanjeev The accused was sentenced to
Kumar @ Sanju was undergo rigorous imprisonment for
also sentenced three years, pay a fine of ₹5000/-,
under Section 506 of and in default of payment of fine, to
IPC undergo further simple
of
imprisonment for two months.
All the substantive sentences of imprisonment were ordered
to run concurrently.
rt
(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
appeals are that the informant (PW1) is the father of the victim
(name being withheld to protect her identity), who was studying
in class 9th. He received a call on 16.08.2008 at 10:00 PM, and the
caller expressed his intention to talk to the victim. The victim
revealed that the caller was Pawan, a friend of Sanju. Another call
was received on 17.08.2008 at about 11 PM, and this time the call
was answered by victim’s grandfather (PW9). When victim’s
grandfather enquired about the purpose of the call, the caller
disconnected the phone call. The victim revealed on 18.08.2008
that Sanjeev @ Sanju used to ask her to marry him or he would kill
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his father. He had done bad acts with her. The victim was found
missing from her home on 19.08.2008. The informant made a
.
complaint (Ext.PW1/A) to the police, and the police registered an
FIR (Ext.PW20/B). HC Hem Raj (PW17) investigated the matter. He
searched the victim. One HRTC bus came from Shimla and halted
at Brahmpukhar. The victim alighted from the bus at
of
Brahmpukhar. The informant identified her. Memo of recovery
(Ext. PW1/B) was prepared. The victim was brought to the
rt
hospital. An application (Ext.PW11/A) was filed for her medical
examination. Dr D. Bhangal (PW11) examined the victim and
found that she had not sustained any injury. The Medical Officer
preserved the sample. She advised X-ray for age determination
and referred the victim to a dental surgeon. She also sought the
opinion from the gynaecologist. Dr Poojan (PW3) examined the
victim at the KNH Shimla on 21.08.2008 and issued the MLC
(Ext.PW3/A). As per his opinion, the possibility of sexual
intercourse could not be ruled out. HC Hemraj (PW17) prepared
the spot map (Ext.PW17/A) and handed over the victim’s custody
to her parents. Inspector Mool Raj (PW19) conducted further
investigation. He visited the spot from where the victim was
kidnapped and prepared a spot map (Ext.PW19/A). He arrested the
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accused P (a juvenile) and seized the clothes worn by him. These
were put in a cloth parcel, and the parcel was sealed with eight
.
seals of Seal ‘T. The parcel was seized by vide memo (Ext.PW19/B).
School leaving certificate of P (Ext. PW5/B) was seized vide memo
(Ext. PW5/A). Inspector Mool Raj (PW19) filed an application
(Ext.PW7/A) for obtaining the Pariwar Register and birth
of
certificate of the victim. Shashi Kumar (PW13) issued a copy of the
Pariwar Registerrt (Ext.PW7/B). ASI Krishan Chand (PW18)
investigated the matter. He arrested the accused Kanchan Kumar.
He obtained the birth certificate of the victim (Ext.PW13/A). The
birth certificate of the juvenile P (Ext.PW18/A) and the Pariwar
register (Ext.PW18/B) confirmed that he was a juvenile. The
samples were sent to SFSL for analysis, and as per the report
(Ext.PW18/D), no blood and semen were detected on the exhibits.
Dr D. Bhangal (PW11) issued a final opinion mentioning that it was
not possible to rule out the possibility of rape. The X-ray films
(Ext.PA to Ext.PE) were taken into possession, and the skeletal age
of the victim was found to be between 16 and 18 years. An
application (Ext.PW12/A) was filed for supplying the birth
certificate from the victim’s school. Nirmala Chauhan (PW12)
supplied the school leaving certificate (Ext.PW12/B). The
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statements of witnesses were recorded as per their version, and
after the completion of the investigation, the challan was
.
prepared and presented in the Court of learned Chief Judicial
Magistrate, Bilaspur, who committed it to the Court of learned
Sessions Judge for trial. Learned Sessions Judge, Bilaspur, sent the
matter to learned Additional Sessions Judge, Ghumarwin (learned
of
Trial Court).
3. Learned Trial Court charged the accused Brij Lal,
rt
Pawan Kumar and Kanchan Kumar with the commission of
offences punishable under Sections 120-B, 363 and 366 of IPC and
the accused Sanjeev Kumar with the commission of offences
punishable under Sections 120-B, 363, 366, 376 and 506 of IPC, to
which the accused pleaded not guilty and claimed to be tried.
4. The prosecution examined 26 witnesses to prove its
case. The informant (PW1) had reported the matter to the police.
Arun Kumar (PW2) took the X-rays of the victim. Dr Poojan (PW3)
and Dr D. Bhangal (PW11) medically examined the victim. Victim
(PW4) narrated the incident. HC Kishori Lal (PW5) witnessed the
recovery. Roshan Lal (PW6), Shakuntala Devi (PW14) and Raj
Kumar (PW21) did not support the prosecution’s case. Shashi
Kumar (PW7) produced a copy of the Pariwar Register of the
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victim. ASI Diwan Singh (PW8) obtained the printout of the call
detail record of the mobile No. xxxx408 and xxxx271. Victim’s
.
grandfather (PW9) was using the mobile No. xxx 408. Dr Yuvraj
Shori (PW10) medically examined the accused Sanjeev Kumar.
Nirmala Chauhan (PW12) produced the school-leaving certificate
of the victim. Shashi Kumar (PW13) supplied the birth certificate
of
of the victim. HC Davinder Kumar (PW15) carried the case
property to SFSL Junga. Inspector Megh Nath (PW16) prepared the
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challan. HC Hem Raj (PW17), SI Krishan Chand (PW18), and
Inspector Mool Raj (PW19) investigated the matter. Taranjeet
Singh (PW20) signed the FIR. HC Suresh Kumar (PW22) was
working as MHC with whom the case property was deposited.
Inspector Jasbir Singh (PW23) wrote the letter for obtaining the
customer details of the mobile numbers xxx 408 and xxxx201.
Kashmiri Lal (PW24) issued the certificate. Parkash Chand (PW25)
obtained the opinion of the Medical Officer. Dr Dinesh Sharma
(PW26) stated that he had not done anything in the present case.
5. The accused, in their statements recorded under
Section 313 of Cr.P.C., denied the prosecution’s case in its entirety.
Accused Pawan Kumar stated that he was innocent, and a false
case was registered against him due to enmity. Accused Sanjeev
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Kumar @ Sanju stated that he was falsely implicated because of
the land dispute. Accused Brij Lal and Kanchan Kumar claimed
.
that they were innocent. They did not produce any evidence in
their defence.
6. Learned Trial Court held that the testimonies of the
witnesses corroborated each other. The victim was proven to be a
of
minor on the date of the incident, and she was incapable of
consenting. The victim’s testimony was duly corroborated by the
rt
medical evidence. She was taken out of the lawful guardianship of
her father. All the accused were acting together. Accused Kanchan
Kumar had accompanied the victim from Jukhala to
Brahmpukhar. Accused Pawan Kumar and Brij Lal had called the
victim’s grandfather. They were forcing her to marry the accused
Sanjeev Kumar. This proved that the accused had entered into a
conspiracy. The failure to disclose the commission of rape by the
victim to her parents was not material, considering the age of the
victim. Therefore, the learned Trial Court convicted and sentenced
the accused as aforesaid.
7. Being aggrieved by the judgment and order passed by
the learned Trial Court, the accused filed separate appeals.
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8. I have heard Mr Rajeev Rai, learned counsel for the
appellants and Mr Lokender Kutlehria, learned Additional
.
Advocate General for the respondents/State.
9. Mr Rajeev Rai, learned counsel for the
appellants/accused, submitted that the learned Trial Court erred
in appreciating the evidence on record. The victim was not proven
of
to be a minor. She was travelling in the bus and had not protested
or made any hue and cry, which showed her consent. The
rt
prosecution witnesses admitted the enmity between the accused
and the family members of the victim, and the possibility of false
implication could not be ruled out. There was no evidence of any
conspiracy, and the learned Trial Court erred in holding that the
charge of conspiracy was proved. The statements of the
prosecution’s witnesses contradicted each other on material
particulars, which made the prosecution’s case suspect. Hence, he
prayed that the present appeals be allowed and the judgment and
order passed by the learned Trial Court be set aside.
10. Mr Lokender Kutlehria, learned Additional Advocate
General for the respondent/State, submitted that the date of birth
of the victim was proved by the copy of the birth certificate and
the certificate taken from the school. The opinion of the
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Radiologist was not conclusive, and it had a margin of error. The
learned Trial Court had rightly held that the victim was a minor
.
and her consent was immaterial. The accused had taken the victim
out of the lawful keeping of her guardian. The accused Sanjeev @
Sanju had raped her, and this fact was confirmed in the medical
opinion. There was no reason for the victim to falsely implicate
of
the accused. Learned Trial Court had taken a reasonable view, and
no interference is required with the judgment and order passed by
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the learned Trial Court. Hence, he prayed that the present appeals
be dismissed.
11. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
12. Informant (PW1) stated that the victim is his daughter.
He had entered her name in the Panchayat record. She was
studying in school and was aged 16 years. He stated in his cross-
examination that he was married when he was 21 years of age.
However, he did not remember the year of his marriage.
13. Shashi Kumar (PW7) stated that an application was
filed by the police for issuing the birth certificate of the victim. He
issued a copy of the Pariwar Register (Ext.PW7/B). He admitted in
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his cross-examination that he had not made entries in the
Pariwar Register and could not say who had made these entries.
.
14. The entry (Ext.PW7/B) shows that the victim was born
on 02.08.1992. The year of birth of her parents was mentioned as
1970, which corroborates the statement of victim’s father that he
was married at the age of 21 years. The victim was born in the year
of
1992 when the informant was aged 22 years.
15. It was submitted that this witness had not made the
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entry in the Pariwar Register, and the entry was not proved as per
the law. This submission is only stated to be rejected. It was laid
down by this Court in Vidya Dhar vs. Mohan Lal (12.04.1978 –
HPHC): MANU/HP/0030/1978 that the family registers are
maintained pursuant to the instructions issued by the
Government, and entries made therein are admissible under
Section 35 of the Indian Evidence Act. Therefore, there was no
requirement to prove the Pariwar Register by examining the
person who had made the entry.
16. Shashi Kumar (PW13) stated that he had prepared the
birth certificate (Ext.PW13/A) showing that the victim was born on
02.08.1992. He stated in his cross-examination that the entry on
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page 44 of the Register pertains to the single hand. He did not
know who had made the entry in page No. 44.
.
17. The copy of the birth certificate (Ext.PW7/B) also
shows that the victim was born on 02.08.1992. This is a copy of
the public record and is, per se, admissible. Hence, the admission
made by Shashi Kumar (PW13) in his cross-examination that he
of
was not aware as to who had made the entry in the original
Register will not make the birth register doubtful.
rt
18. The victim was studying in school. Nirmala Chauhan
(PW12) issued the victim’s school leaving certificate (Ext.PW12/B)
showing that the date of the birth of the victim was 02.08.1992.
She admitted in her cross-examination that the entries in the
admission and withdrawal register were not made by her. This
admission will not make any difference as the entry was made by a
public official in discharge of the official duties. Therefore, the
entry is per se admissible, and its proof was not required.
19. Therefore, the documents on record clearly showed
that the victim was born on 02.08.1992 and was aged 16 years on
the date of the incident.
20. Dr D. Bhangal (PW11) stated the skeletal age of the
victim was found to be 16-18 years. It was submitted that there is
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a variation of two years, and the testimony of this witness shows
that the victim might have been a major. This submission will not
.
help the accused. It was laid down by the Hon’ble Supreme Court
in Bhoop Ram v. State of U.P., (1989) 3 SCC 1, that the entry in the
school register will prevail upon the certificate issued by a
radiologist regarding the age. The birth certificate taken from the
of
Panchayat and the school show the victim’s date of birth as
02.08.1992. These entries have to be preferred to the opinion
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expressed by the radiologist based upon the radiological
examination, and the opinion evidence cannot be used to discard
the definite opinion regarding the date of birth of the victim.
21. Therefore, the learned Trial Court had rightly
concluded that the victim was proved to be a minor on the date of
the incident, and there is no infirmity in the findings recorded by
the learned Trial Court.
22. The victim (PW4) stated that she was studying in class
9th in the year 2008. Her date of birth is 02.08.1992. Accused
Sanjeev Kumar had illicit relations with her since she was 8-9
years of age. Accused Kanchan and Brij Lal used to call her on her
grandfather’s phone from a mobile number xxxx207, inter alia,
compelling her to marry the accused Sanjeev Kumar. Her
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grandfather asked her about the relationship with the caller, and
she narrated the truth. Her grandfather and family members
.
asked the parents of the accused, Sanjeev Kumar, about the illicit
relations. The parents of the accused started quarrelling with her
family members. They said that she was telling a lie. She had gone
to fetch drinking water in the evening when the accused Sanjeev
of
met her on the way. He told her that the relationship between
them was known to everybody, and he advised her to run away
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from home. He asked her to go to the house of her aunt and tell
her falsely that she (the victim) had consumed poison. The
accused also promised to pay money to her for running away from
her home. She left her home at 7 PM and went to the house of the
accused Sanjeev Kumar, who paid ₹800/- to her. She went to the
house of her aunt and told her falsely that she had consumed
poison, and she should accompany her to the hospital. However,
her aunt refused to accompany her. The victim left the home of
her aunt, but she was caught at some distance. She (aunt) went to
her home to call the victim’s parents. The victim ran away
towards Jukhala. Accused Kanchan met her. She told the accused
Kanchan that she wanted to return to her home, and she had
committed the mistake by leaving her home. Accused Kanchan
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told her that Sanjeev would kill her if she returned to her home.
He also slapped her. He took her towards Jukhala through Khad.
.
He told her to call Pawan and get the number of P from him. She
called P, but his phone was switched off. She called Kanchan from
an STD booth, who told her to wait as he would be coming with P.
After some time, P came and advised her to go to her home, but
of
she declined. She, P, and Kanchan went towards Brahmpukhar.
Accused Sanjeev @ Sanju came to the spot in a jeep and sent her
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and P to Shimla in a bus. Accused Kanchan and Sanjeev Kumar
returned. Accused Sanjeev had advised her that he would contact P
on his cell phone and would disclose the further plan. However, no
call was received till 11 AM. P received a call from his home, and
his parents told him that the victim’s parents had reported the
matter to the police. She and P returned in the HRTC Bus and she
was apprehended at Brahmpukhar. P tried to run away, but he was
caught by the police. She was taken to the hospital, where she was
medically examined.
23. She stated that her sister was one year younger than
her. She had cordial relations with the family of the accused. One
year before the incident, she and her sister used to visit the house
of the accused, Sanjeev Kumar. P was her class fellow, and she was
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on talking terms with him. The mobile numbers of the accused
were saved in the cell phone of her grandfather. She had attended
.
the phone call of accused Kanchan, who had advised her to marry
accused Sanjeev Kumar. His mother and the mother of P had an
altercation regarding her disappearance. She had not disclosed
anything to her aunt. She told the incident to her family members
of
on 18.08.2008. Her statement was recorded in the Court. The
accused Sanjeev had committed wrong acts with her for about 8
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years. She denied that she was making a false statement, and she
had voluntarily accompanied P to Shimla. She denied that she was
incapable of maintaining a physical relationship.
24. The statement of this witness is duly corroborated by
her aunt (PW14), who stated that the victim had come to her on
18.08.2008 and told her that she would stay in her home. She
disclosed that she had consumed poison and requested that she be
accompanied to fetch medicines. She told the victim that her
husband would come shortly and she would take her to the Doctor.
However, the victim left the home. She informed the victim’s
grandfather. She searched for the victim, but the victim could not
be found. She was permitted to be cross-examined. She admitted
that the accused Sanjeev @ Sanju is her brother-in-law. She
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admitted that the victim had told her to accompany her to fetch
medicines. She denied in her cross-examination that the victim
.
had not visited her home.
25. This witness supported the victim’s version that she
had gone to her aunt’s house and disclosed to her about the
consumption of the poison.
of
26. It was submitted that the victim had stated that she
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was apprehended by her aunt after she had left her home, and
this witness had not supported this part of the victim’s
testimony. This submission will not help the accused. This
witness admitted her relationship with the accused; therefore,
she had a reason to favour the accused. The victim had made the
statement on 29.09.2011 after the lapse of three years, and the
memory was bound to fail with time. 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 evolved::: Downloaded on – 01/04/2026 20:34:47 :::CIS
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2026:HHC:9659principles for the appreciation of ocular evidence in a
criminal case can be enumerated as under:
“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 scrutinize the evidence more particularlykeeping 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 theof
general tenor of the evidence given by the witness and
whether the earlier evaluation of the evidence is shaken
as to render it unworthy of belief.
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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, theappellate 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 andformidable it would not be proper to reject the evidence
on the ground of minor variations or 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. Butcourts 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 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.
V. Too serious a view to be adopted on mere variations
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2026:HHC:9659the 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 anticipated the
occurrence, which so often has an element of surprise.
of
The mental faculties, therefore, cannot be expected to be
attuned to absorb the details.
VIII. The powers of observation differ from person to
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person. What one may notice, another may not. An
object or movement might emboss its image on oneperson’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 bythem or heard by them. They can only recall the main
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 time
duration of an occurrence, usually, people make their
estimates by guesswork on the spur of the moment at
the time of interrogation. And one cannot expect peopleto make very precise or reliable estimates in such
matters. Again, it depends on the time sense of
individuals, which varies from person to person.
XI. Ordinarily, a witness cannot be expected to recall
accurately the sequence of events that take place in
rapid 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::: Downloaded on – 01/04/2026 20:34:47 :::CIS
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2026:HHC:9659cross-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 occurrencewitnessed by him.
XIII. A former statement, though seemingly inconsistent
with the evidence, need not necessarily be sufficient toof
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
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witness.” [See Bharwada Bhoginbhai Hirjibhai v. State
of Gujarat (1983) 3 SCC 217: 1983 Cri LJ 1096: (AIR 1983SC 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)”
27. 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) 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 of
Haryana [Rohtash Kumar v. State of Haryana, (2013) 14 SCC
434: (2014) 4 SCC (Cri) 238] held: (SCC p. 446, para 24)::: Downloaded on – 01/04/2026 20:34:47 :::CIS
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2026:HHC:9659“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 isagainst 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 witness.”
rt
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
memory were acceptable, contradictions were not. In this
case, there was no contradiction, only minor discrepancies.
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
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22
2026:HHC:9659
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
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
of
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
rt
Maharashtra, (2000) 8 SCC 457: 2000 SCC (Cri) 1546],
Gura Singh v. State of Rajasthan [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].
31. What is to be seen next is whether the version
presented in the Court was substantially similar to what
was said during the investigation. It is only when
exaggeration fundamentally changes the nature of the
case the Court has to consider whether the witness was
stating the truth or not. [Ref. Sunil Kumar v. State (NCT
of Delhi) [Sunil Kumar v. State (NCT of Delhi), (2003) 11
SCC 367: 2004 SCC (Cri) 1055]].
32. These are variations which would not amount to any
serious consequences. The Court has to accept the
normal conduct of a person. The witness who is
watching the murder of a person being brutally beaten
by 15 persons 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 his attention to take
steps to prevent the assault on the victim and then to
make every effort to provide him with medical aid and
inform the police. The statements which are recorded
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23
2026:HHC:9659
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 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.
of
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 Court
rt
held: (SCC pp. 666-67, paras 46 & 49)
“46. Then, it was argued that there are certain
discrepancies and contradictions in the statements of
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.”
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2026:HHC:9659
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)
.
“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 isof
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.
Thus, the court is not supposed to give undue
rt
importance to omissions, contradictions and
discrepancies which do not go to the heart of the matterand shake the basic version of the prosecution witness.”
28. 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 injuries
attributed on 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 on informant PW-6. However, the testimony 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::: Downloaded on – 01/04/2026 20:34:47 :::CIS
25
2026:HHC:9659of the judgment reads as under:
“42. Only such omissions which amount to a
contradiction in material particulars can be used to.
discredit the testimony of the witness. The omission
in the police statement by itself would not
necessarily render the testimony of the witness
unreliable. When the version given by the witness inthe court is different in material particulars from
that disclosed in his earlier statements, the case of
the prosecution becomes doubtful and not otherwise.
of
Minor contradictions are bound to appear in the
statements of truthful witnesses as memory
sometimes plays false, and the sense of observation
differs from person to person. The omissions in the
rt
earlier statement, if found to be of trivial details, as
in the present case, the same would not cause anydent 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.”
29. It was laid down by the Hon’ble Supreme Court in
Achchar Singh vs. State of H.P., AIR 2021 SC 3426, that the
testimony of a witness cannot be discarded due to exaggeration
alone. It was observed:
“24. It is vehemently contended that the evidence of the
prosecution witnesses is exaggerated and thus false.
Cambridge Dictionary defines “exaggeration” as “the fact
of making something larger, more important, better or
worse than it is”. Merriam-Webster defines the term
“exaggerate” as to “enlarge beyond bounds or the truth”.
The Concise Oxford Dictionary defines it as “enlarged or
altered beyond normal proportions”. These expressions
unambiguously suggest that the genesis of an ‘exaggerated
statement’ lies in a fact, to which fictitious additions are
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26
2026:HHC:9659
made to make it more penetrative. Every exaggeration,
therefore, has the ingredients of ‘truth’. No exaggerated
statement is possible without an element of truth. On the
.
other hand, the Advanced Law Lexicon defines “false” as
“erroneous, untrue; opposite of correct, or true”. Oxford
Concise Dictionary states that “false” is “wrong; not
correct or true”. Similar is the explanation in other
dictionaries as well. There is, thus, a marked differential
between an ‘exaggerated version’ and a ‘false version’. An
exaggerated statement contains both truth and falsity,
of
whereas a false statement has no grain of truth in it (being
the ‘opposite’ of ‘true’). It is well said that to make a
mountain out of a molehill, the molehill shall have to exist
primarily. A Court of law, being mindful of such
rt
distinction, is duty-bound to disseminate ‘truth’ from
‘falsehood’ and sift the grain from the chaff in case of
exaggerations. It is only in a case where the grain and the
chaff are so inextricably intertwined that, in their
separation, no real evidence survives that the whole
evidence can be discarded. [Sucha Singh v. State of Punjab,
(2003) 7 SCC 643, 18.]
25. Learned State counsel has rightly relied on Gangadhar
Behera (Supra) to contend that even in cases where a major
portion of the evidence is found deficient, if the residue is
sufficient to prove the guilt of the accused, a conviction can
be based on it. This Court in Hari Chand v. State of Delhi,
(1996) 9 SCC 112 held that:
“24. …So far as this contention is concerned, it must
be kept in view that while appreciating the evidence
of witnesses in a criminal trial, especially in a case
of eyewitnesses, the maxim falsus in uno, falsus in
omnibus cannot apply, and the court has to make
efforts to sift the grain from the chaff. It is of course
true that when a witness is said to have exaggerated
in his evidence at the stage of trial and has tried to
involve many more accused and if that part of the
evidence is not found acceptable the remaining part
of the evidence has to be scrutinised with care and::: Downloaded on – 01/04/2026 20:34:47 :::CIS
27
2026:HHC:9659the court must try to see whether the acceptable
part of the evidence gets corroborated from other
evidence on record so that the acceptable part can.
be safely relied upon…”
26. There is no gainsaying that homicidal deaths cannot be
left to judicium dei. The Court, in their quest to reach the
truth, ought to make earnest efforts to extract gold out of
the heap of black sand. The solemn duty is to dig out the
authenticity. It is only when the Court, despite its best
efforts, fails to reach a firm conclusion that the benefit of
of
the doubt is extended.
27. An eye-witness is always preferred to others. The
statements of P.W.1, P.W.11 and P.W.12 are, therefore, to be
rt
analysed accordingly, while being mindful of the difference
between exaggeration and falsity. We find that the truth
can be effortlessly extracted from their statements. The
trial Court fell in grave error and overlooked the credible
and consistent evidence while proceeding with a baseless
premise that the exaggerated statements made by the
eyewitnesses belie their version.”
30. It was laid down by the Hon’ble Supreme Court in
Arvind Kumar @ Nemichand and others Versus State of Rajasthan,
2022 Cri. L.J. 374, that the testimony of a witness cannot be
discarded because he had made a wrong statement regarding
some aspect. The principle that when a witness deposes
falsehood, his entire statement is to be discarded does not apply
to India. It was observed: –
“48. The principle that when a witness deposes falsehood,
the evidence in its entirety has to be eschewed may not
have a strict application to the criminal jurisprudence in
our country. The principle governing sifting the chaff from::: Downloaded on – 01/04/2026 20:34:47 :::CIS
28
2026:HHC:9659the grain has to be applied. However, when the evidence is
inseparable and such an attempt would either be
impossible or would make the evidence unacceptable, the.
natural consequence would be one of avoidance. The said
principle has not assumed the status of law but continues
only as a rule of caution. One has to see the nature of the
discrepancy in a given case. When the discrepancies arevery material, shaking the very credibility of the witness,
leading to a conclusion in the mind of the court that it is
neither possible to separate it nor to rely upon, it is for theof
said court to either accept or reject.”
31. Therefore, in view of the binding precedents of the
Hon’ble Supreme Court, the statements of the witnesses cannot
rt
be discarded due to omissions, contradictions, or discrepancies.
The Court must consider whether the discrepancies negatively
affect the prosecution’s case and whether they pertain to the core
of the case rather than the details. In the present case, the
discrepancy related to a detail, and is not sufficient to discard the
prosecution’s case.
32. The victim was confronted with a portion of her
statement in her cross-examination; however, the Investigating
Officer, HC Hem Raj (PW17) and Inspector Mool Raj (PW19) were
not asked anything in the cross-examination about these
confrontations. Therefore, the confrontations have not been
proved as per the law. It was laid down by the Bombay High Court
about a century ago in Emperor vs. Vithu Balu Kharat (1924) 26
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29
2026:HHC:9659
Bom. L.R. 965 that the previous statement has to be proved before
it can be used. It was observed:
.
“The words “if duly proved” in my opinion, clearly show
that the record of the statement cannot be admitted in
evidence straightaway but that the officer before whomthe statement was made should ordinarily be examined as
to any alleged statement or omitted statement that is
relied upon by the accused for the purpose ofof
contradicting the witness; and the provisions of Section
67 of the Indian Evidence Act apply to this case, as well as
to any other similar ease. Of course, I do not mean to say
that, if the particular police officer who recorded the
rt
statement is not available, other means of proving the
statement may not be availed of, e.g., evidence that thestatement is in the handwriting of that particular officer.”
33. It was laid down by the Hon’ble Supreme Court in
Muthu Naicker and Others, etc. Versus State of T.N. (1978) 4 SCC 385,
that if the witness affirms the previous statement, no proof is
necessary, but if the witness denies or says that he did not
remember the previous statement, the investigating officer
should be asked about the same. It was observed: –
“52. This is the most objectionable manner of using the
police statement, and we must record our emphatic
disapproval of the same. The question should have been
framed in a manner to point out that, from amongst those
accused mentioned in examination-in-chief, there were
some whose names were not mentioned in the police
statement and if the witness affirms this, no further proof
is necessary and if the witness denies or says that she does
not remember, the investigation officer should have been
questioned about it.”
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2026:HHC:9659
34. The Gauhati High Court held in Md. Badaruddin Ahmed
v. State of Assam, 1989 SCC OnLine Gau 35: 1989 Cri LJ 1876, that if
.
the witness denies having made the statement, the portion
marked by the defence should be put to the investigating officer
and his version should be elicited regarding the same. It was
observed at page 1880: –
of
“13. The learned defence counsel has drawn our attention
to the above statement of the Investigating Officer and
rt
submits that P.W. 4 never made his above statement before
the police and that the same, being his improved version,
cannot be relied upon. With the utmost respect to thelearned defence counsel, we are unable to accept his above
contention. Because, unless the particular matter or point
in the previous statement sought to be contradicted isplaced before the witness for explanation, the previous
statement cannot be used in evidence. In other words,
drawing the attention of the witness to his previousstatement sought to be contradicted and giving all
opportunities to him for explanation are compulsory. Ifany authority is to be cited on this point, we may
conveniently refer to the case of Pangi Jogi Naik v. State
reported in AIR 1965 Orissa 205: (1965 (2) Cri LJ 661). Further,in the case of Tahsildar Singh v. State of U.P., reported in AIR
1959 SC 1012: (1959 Cri LJ 1231) it was also held that the
statement not reduced to writing cannot be contradicted
and, therefore, in order to show that the statement sought
to be contradicted: was recorded by the police, it should be
marked and exhibited. However, in the case at hand, there
is nothing on the record to show that the previous
statement of the witness was placed before him and that
the witness was given the chance for explanation. Again,
his previous statement was not marked and exhibited.
Therefore, his previous statement before the police cannot
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2026:HHC:9659
be used. Hence, his evidence that when he turned back, he
saw the accused Badaruddin lowering the gun from his
chest is to be taken as his correct version.
.
14. The learned defence counsel has attempted to persuade
us not to rely on the evidence of this witness on the ground
that his evidence before the trial Court is contradicted by
his previous statement made before the police. However, in
view of the decisions made in the said cases we have been
persuaded irresistibly to hold that the correct procedure to
be followed which would be in conformity with S. 145 of the
of
Evidence Act to contradict the evidence given by the
prosecution witness at the trial with a statement made by
him before the police during the investigation will be to
draw the attention of the witness to that part of the
rt
contradictory statement which he made before the police,
and questioned him whether he did, in fact, make that
statement. If the witness admits having made the
particular statement to the police, that admission will go
into evidence and will be recorded as part of the evidence of
the witness and can be relied on by the accused as
establishing the contradiction. However, if, on the other
hand, the witness denies to have made such a statement
before the police, the particular portions of the statement
recorded should be provisionally marked for identification
as B-1 to B-1, B-2 to B-2 etc. (any identification mark) and
when the investigating officer who had actually recorded
the statements in question comes into the witness box, he
should be questioned as to whether these particular
statements had been made to him during the investigation
by the particular witness, and obviously after refreshing
his memory from the case diary the investigating officer
would make his answer in the affirmative. The answer of
the Investigating Officer would prove the statements B-1 to
B-1, B-2 to B-2, which are then exhibited as Ext. D. 1, Ext.
D. 2, etc. (exhibition mark) in the case and will go into
evidence, and may, thereafter, be relied on by the accused
as contradictions. In the case in hand, as was discussed in
above, the above procedure was not followed while cross-
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2026:HHC:9659
examining the witness to his previous statements, and,
therefore, we have no alternative but to accept the
statement given by this witness before the trial Court that
.
he saw the accused Badaruddin lowering the gun from his
chest to be his correct version.”
35. Andhra Pradesh High Court held in Shaik Subhani v.
State of A.P., 1999 SCC OnLine AP 413: (1999) 5 ALD 284: 2000 Cri LJ
321: (1999) 2 ALT (Cri) 208 that putting a suggestion to the witness
of
and the witness denying the same does not amount to putting the
contradiction to the witness. The attention of the witness has to
rt
be drawn to the previous statement, and if he denies the same,
the same is to be proved by the investigating officer. It was
observed at page 290: –
“24… As far as the contradictions put by the defence are
concerned, we would like to say that the defence Counseldid not put the contradictions in the manner in which it
ought to have been put. By putting suggestions to thewitness and the witness denying the same will not amount
to putting contradiction to the witness. The contradiction
has to be put to the witness as contemplated under Section145 of the Evidence Act. If a contradiction is put to the
witness and it is denied by him, then his attention has to be
drawn to the statement made by such witness before the
Police or any other previous statement and he must be
given a reasonable opportunity to explain as to why such
contradiction appears and he may give any answer if the
statement made by him is shown to him and if he
confronted with such a statement and thereafter the said
contradiction must be proved through the Investigation
Officer. Then only it amounts to putting the contradiction::: Downloaded on – 01/04/2026 20:34:47 :::CIS
33
2026:HHC:9659to the witness and getting it proved through the
Investigation Officer.”
36. The Calcutta High Court took a similar view in Anjan
.
Ganguly v. State of West Bengal, 2013 SCC OnLine Cal 22948: (2013)
2 Cal LJ 144 and held at page 151: –
“21. It was held in State of Karnataka v. Bhaskar Kushali
Kothakar, reported as (2004) 7 SCC 487, that if anyof
statement of the witness is contrary to the previous
statement recorded under Section 161, Cr.P.C. or suffers
from omission of certain material particulars, then the
previous statement can be proved by examining the
rt
Investigating Officer who had recorded the same. Thus,
there is no doubt that for proving the previous statementInvestigating Officer ought to be examined, and the
statement of the witness recorded by him can only be
proved by him, and he has to depose to the extent that he
had correctly recorded the statement, without adding oromitting, as to what was stated by the witness.
23. Proviso to Section 162(1), Cr.P.C. states in clear terms
that the statement of the witness ought to be duly proved.
The words, if duly proved, cast a duty upon the accusedwho wants to highlight the contradictions by confronting
the witness to prove the previous statement of a witness
through the police officer who has recorded the same in theordinary way. If the witness in the cross-examination
admits contradictions, then there is no need to prove the
statement. But if the witness denies a contradiction and the
police officer who had recorded the statement is called by
the prosecution, the previous statement of the witness on
this point may be proved by the police officer. In case the
prosecution fails to call the police officer in a given
situation Court can call this witness, or the accused can call
the police officer to give evidence in defence. There is no
doubt that unless the statement as per proviso to sub-
section (1) of Section 162, Cr.P.C. is duly proved, the::: Downloaded on – 01/04/2026 20:34:47 :::CIS
34
2026:HHC:9659contradiction in terms of Section 145 of the Indian
Evidence Act cannot be taken into consideration by the
Court.
.
24. To elaborate on this further, it will be necessary to
reproduce Section 145 of the Indian Evidence Act.
“S. 145. A witness may be cross-examined as to previous
statements made by him in writing or reduced into writing,and relevant to matters in question, without such writing
being shown to him, or being proved; but, if it intended to
contradict him by the writing, his attention must, beforeof
the writing can be proved, be called to those parts of it
which are to be used for the purpose of contradicting him.”
25. Therefore, it is appropriate that before the previous
rt
statement or statement under Section 161, Cr.P.C. is
proved, the attention of the witness must be drawn to the
portion in the statement recorded by the Investigating
Officer to bring to light the contradiction, a process called
confrontation.
26. Let us first understand what the proper procedure is. A
witness may have stated in the statement under Section
161, Cr.P.C. that ‘X murdered Y’. In Court witness state ‘Z
murdered Y’. This is a contradiction. Defence Counsel or
Court, and even prosecution if the witness is declared
hostile, having resiled from a previous statement, is to be
confronted to bring contradiction on record. The attention
of the witness must be drawn to the previous statement or
statement under Section 161, Cr.P.C., where it was stated
that ‘X murdered Y’. Since Section 145 of the Indian
Evidence Act uses the word being proved, therefore, in the
course of examination of the witness, a previous statement
or a statement under Section 161, Cr.P.C. will not be
exhibited but shall be assigned a mark, and the portion
contradicted will be specified. The trial Court in the event
of contradiction, has to record as under.
27. The attention of the witness has been drawn to portions
A to A of the statement marked as 1, and confronted with
the portion where it is recorded that ‘X murdered Y’. In this
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2026:HHC:9659
manner, by way of confrontation, contradiction is brought
on record. Later, when the Investigating Officer is
examined, the prosecution or defence may prove the
.
statement, after the Investigating Officer testifies that the
statement assigned mark was correctly recorded by him, at
that stage statement will be exhibited by the Court. Then
the contradiction will be proved by the Investigating
Officer by stating that the witness had informed or told
him that ‘X murdered Y’ and he had correctly recorded this
fact.
of
28. Now, a reference to the explanation to Section 162,
Cr.P.C., which says that an omission to state a fact or
circumstance may amount to contradiction. Say, for
instance, if a witness omits to state in Court that ‘X
rt
murdered Y’, what he had stated in a statement under
Section 161, Cr.P.C. will be materia? contradiction, for the
Public Prosecutor, as the witness has resiled from the
previous statement, or if he has been sent for trial for the
charge of murder, omission to state ‘X murdered Y’ will be
a material omission, and amount to contradiction so far as
the defence of ‘W is concerned. At that stage also attention
of the witness will also be drawn to a significant portion of
the statement recorded under Section 161, Cr.P.C., which
the witness had omitted to state, and note shall be given
that attention of the witness was drawn to the portion A to
A wherein it is recorded that ‘X murdered Y’. In this way,
the omission is brought on record. The rest of the
procedure stated earlier, qua confrontation shall be
followed to prove the statement of the witness and the fact
stated by the witness.
29. Therefore, to prove the statement for the purpose of
contradiction, it is necessary that the contradiction or
omission must be brought to the notice of the witness. His
or her attention must be drawn to the portion of the
previous statement (in the present case statement under
Section 161, Cr.P.C)”
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2026:HHC:9659
37. A similar view was taken in Alauddin v. State of Assam,
2024 SCC OnLine SC 760, wherein it was observed:
.
“7. When the two statements cannot stand together, they
become contradictory statements. When a witness makes a
statement in his evidence before the Court which isinconsistent with what he has stated in his statement
recorded by the Police, there is a contradiction. When a
prosecution witness whose statement under Section 161(1)of
or Section 164 of CrPC has been recorded states factual
aspects before the Court which he has not stated in his
prior statement recorded under Section 161(1) or Section
164 of CrPC, it is said that there is an omission. There will
rt
be an omission if the witness has omitted to state a fact in
his statement recorded by the Police, which he statesbefore the Court in his evidence. The explanation to Section
162 CrPC indicates that an omission may amount to a
contradiction when it is significant and relevant. Thus,
every omission is not a contradiction. It becomes acontradiction provided it satisfies the test laid down in the
explanation under Section 162. Therefore, when an
omission becomes a contradiction, the procedure providedin the proviso to sub-Section (1) of Section 162 must be
followed for contradicting witnesses in the cross-
examination.
8. As stated in the proviso to sub-Section (1) of section
162, the witness has to be contradicted in the manner
provided under Section 145 of the Evidence Act. Section 145
reads thus:
“145. Cross-examination as to previous statements
in writing.–A witness may be cross-examined as to
previous statements made by him in writing or reduced
into writing, and relevant to matters in question,
without such writing being shown to him, or being
proved; but, if it is intended to contradict him by the
writing, his attention must, before the writing can be::: Downloaded on – 01/04/2026 20:34:47 :::CIS
37
2026:HHC:9659proved, be called to those parts of it which are to be used
for the purpose of contradicting him.”
The Section operates in two parts. The first part
.
provides that a witness can be cross-examined as to his
previous statements made in writing without such writing
being shown to him. Thus, for example, a witness can be
cross-examined by asking whether his prior statement
exists. The second part is regarding contradicting a
witness. While confronting the witness with his prior
statement to prove contradictions, the witness must be
of
shown his prior statement. If there is a contradiction
between the statement made by the witness before the
Court and what is recorded in the statement recorded by
the police, the witness’s attention must be drawn to
rt
specific parts of his prior statement, which are to be used
to contradict him. Section 145 provides that the relevant
part can be put to the witness without the writing being
proved. However, the previous statement used to
contradict witnesses must be proved subsequently. Only if
the contradictory part of his previous statement is proved
can the contradictions be said to be proved. The usual
practice is to mark the portion or part shown to the witness
of his prior statement produced on record. Marking is done
differently in different States. In some States, practice is to
mark the beginning of the portion shown to the witness
with an alphabet and the end by marking with the same
alphabet. While recording the cross-examination, the Trial
Court must record that a particular portion marked, for
example, as AA was shown to the witness. Which part of
the prior statement is shown to the witness for
contradicting him has to be recorded in the cross-
examination. If the witness admits to having made such a
prior statement, that portion can be treated as proved. If
the witness does not admit the portion of his prior
statement with which he is confronted, it can be proved
through the Investigating Officer by asking whether the
witness made a statement that was shown to the witness.
Therefore, if the witness is intended to be confronted with
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his prior statement reduced into writing, that particular
part of the statement, even before it is proved, must be
specifically shown to the witness. After that, the part of the
.
prior statement used to contradict the witness has to be
proved. As indicated earlier, it can be treated as proved if
the witness admits to having made such a statement, or it
can be proved in the cross-examination of the concerned
police officer. The object of this requirement in Section 145
of the Evidence Act, of confronting the witness by showing
him the relevant part of his prior statement, is to give the
of
witness a chance to explain the contradiction. Therefore,
this is a rule of fairness.
9. If a former statement of the witness is inconsistent
with any part of his evidence given before the Court, it can
rt
be used to impeach the credit of the witness in accordance
with clause (3) of Section 155 of the Evidence Act, which
reads thus:
“155. Impeaching credit of the witness. — The credit
of a witness may be impeached in the following ways bythe adverse party, or, with the consent of the Court, by
the party who calls him–
(1) ……………………………………….
(2) ………………………………………
(3) by proof of former statements inconsistent with
any part of his evidence which is liable to be
contradicted.”
It must be noted here that every contradiction or
omission is not a ground to discredit the witness or to
disbelieve his/her testimony. A minor or trifle omission or
contradiction brought on record is not sufficient to
disbelieve the witness’s version. Only when there is a
material contradiction or omission can the Court disbelieve
the witness’s version either fully or partially. What is a
material contradiction or omission, depending upon the
facts of each case? Whether an omission is a contradiction
also depends on the facts of each individual case.
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10. We are tempted to quote what is held in a landmark
decision of this Court in the case of Tahsildar Singh v. State
of U.P.1959 Supp (2) SCR 875. Paragraph 13 of the said
.
decision reads thus:
“13. The learned counsel’s first argument is based
upon the words “in the manner provided by Section 145
of the Indian Evidence Act, 1872″ found in Section 162of the Code of Criminal Procedure. Section 145 of the
Evidence Act, it is said, empowers the accused to put all
relevant questions to a witness before his attention isof
called to those parts of the writing with a view to
contradicting him. In support of this contention,
reliance is placed upon the judgment of this Court in
Shyam Singh v. State of Punjab [(1952) 1 SCC 514: 1952
rt
SCR 812]. Bose, J. describes the procedure to be followed
to contradict a witness under Section 145 of theEvidence Act, thus at p. 819:
Resort to Section 145 would only be necessary if
the witness denies that he made the formerstatement. In that event, it would be necessary to
prove that he did, and if the former statement was
reduced to writing, then Section 145 requires that hisattention must be drawn to these parts which are to
be used for contradiction. But that position does notarise when the witness admits the former statement.
In such a case, all that is necessary is to look to the
former statement of which no further proof isnecessary because of the admission that it was
made.”
It is unnecessary to refer to other cases wherein a
similar procedure is suggested for putting questions
under Section 145 of the Indian Evidence Act, for the
said decision of this Court and similar decisions were
not considering the procedure in a case where the
statement in writing was intended to be used for
contradiction under Section 162 of the Code of Criminal
Procedure. Section 145 of the Evidence Act is in two parts:
the first part enables the accused to cross-examine a
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2026:HHC:9659witness as to a previous statement made by him in writing
or reduced to writing without such writing being shown to
him; the second part deals with a situation where the.
cross-examination assumes the shape of contradiction: in
other words, both parts deal with cross-examination; the
first part with cross-examination other than by way of
contradiction, and the second with cross-examination byway of contradiction only. The procedure prescribed is that,
if it is intended to contradict a witness by the writing, his
attention must, before the writing can be proved, be calledof
to those parts of it which are to be used for the purpose of
contradicting him. The proviso to Section 162 of the Code of
Criminal Procedure only enables the accused to make use of
such a statement to contradict a witness in the manner
rt
provided by Section 145 of the Evidence Act. It would be
doing violence to the language of the proviso if the saidstatement be allowed to be used for the purpose of cross-
examining a witness within the meaning of the first part of
Section 145 of the Evidence Act. Nor are we impressed by
the argument that it would not be possible to invoke thesecond part of Section 145 of the Evidence Act without
putting relevant questions under the first part thereof. The
difficulty is more imaginary than real. The second part ofSection 145 of the Evidence Act clearly indicates the simple
procedure to be followed. To illustrate: A says in the witnessbox that B stabbed C; before the police, he had stated that D
stabbed C. His attention can be drawn to that part of the
statement made before the police, which contradicts hisstatement in the witness box. If he admits his previous
statement, no further proof is necessary; if he does not
admit it, the practice generally followed is to admit it
subject to proof by the police officer. On the other hand,
the procedure suggested by the learned counsel may be
illustrated thus: If the witness is asked, “Did you say
before the police officer that you saw a gas light?” and
he answers “yes”, then the statement which does not
contain such recital is put to him as a contradiction.
This procedure involves two fallacies: one is that it
enables the accused to elicit by a process of cross-
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2026:HHC:9659
examination what the witness stated before the police
officer. If a police officer did not make a record of a
witness’s statement, his entire statement could not be.
used for any purpose, whereas if a police officer
recorded a few sentences, by this process of cross-
examination, the witness’s oral statement could be
brought on record. This procedure, therefore,contravenes the express provision of Section 162 of the
Code. The second fallacy is that by the illustration given
by the learned counsel for the appellants, there is noof
self-contradiction of the primary statement made in the
witness box, for the witness has yet not made on the
stand any assertion at all which can serve as the basis.
The contradiction, under the section, should be between
rt
what a witness asserted in the witness box and what he
stated before the police officer, and not between whathe said he had stated before the police officer and what
he actually made before him. In such a case, the
question could not be put at all: only questions to
contradict can be put, and the question here posed doesnot contradict; it leads to an answer which is
contradicted by the police statement. This argument of
the learned counsel based upon Section 145 of theEvidence Act is, therefore, not of any relevance in
considering the express provisions of Section 162 of theCode of Criminal Procedure.” (emphasis added)
This decision is a locus classicus, which will continue toguide our Trial Courts. In the facts of the case, the learned
Trial Judge has not marked those parts of the witnesses’
prior statements based on which they were sought to be
contradicted in the cross-examination.”
38. It was laid down by the Hon’ble Supreme Court in
Matadin v. State of U.P., 1980 Supp SCC 157, that the statement
under Section 161 Cr.PC is not detailed and is meant to be brief. It
does not contain all the details. It was observed at page 158:
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“3. The learned Sessions Judge had rejected the evidence of
the eyewitnesses on wrong, unconvincing and unsound
reasons. The Sessions Judge appears to have been swayed.
by some insignificant omissions made by some of the
witnesses in their statements before the police, and on the
basis of these omissions, dubbed the witnesses as liars. The
Sessions Judge did not realise that the statements given by
the witnesses before the police were meant to be brief
statements and could not take the place of evidence in the
Court. Where the omissions are vital, they merit
of
consideration, but mere small omissions will not justify a
finding by a court that the witnesses concerned are self-
contained liars. We have carefully perused the judgment of
the Sessions Judge, and we are unable to agree that the
rt
reasons that he has given for disbelieving the witnesses are
good or sound reasons. The High Court was, therefore, fully
justified in reversing the judgment passed by the trial
court. We are satisfied that this is a case where the
judgment of the Sessions Judge was manifestly wrong and
perverse and was rightly set aside by the High Court. It was
urged by Mr Mehta that, as other appellants except
Matadin and Dulare do not appear to have assaulted the
deceased, they should be acquitted of the charge under
Section 149. We, however, find that all the appellants were
members of the unlawful assembly. Their names find a
place in the FIR. For these reasons, we are unable to find
any ground to distinguish the case of those appellants from
that of Matadin and Dulare. The argument of the learned
counsel is overruled. The result is that the appeal fails and
is accordingly dismissed. The appellants who are on bail
will now surrender to serve out the remaining portion of
their sentence.”
39. Similar is the judgment in Esher Singh v. State of A.P.,
(2004) 11 SCC 585: 2004 SCC OnLine SC 320, wherein it was held at
page 601:
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2026:HHC:9659
“23. So far as the appeal filed by accused Esher Singh is
concerned, the basic question is that even if the
confessional statement purported to have been made by A-
.
5 is kept out of consideration, whether residuary material
is sufficient to find him guilty. Though it is true, as
contended by learned counsel for the accused-appellant
Esher Singh, that some statements were made for the firsttime in court and not during the investigation, it has to be
seen to what extent they diluted the testimony of Balbeer
Singh and Dayal Singh (PWs 16 and 32) used to bring homeof
the accusations. A mere elaboration cannot be termed a
discrepancy. When the basic features are stated, unless the
elaboration is of such a nature that it creates a different
contour or colour of the evidence, the same cannot be said
rt
to have totally changed the complexion of the case. It is to
be noted that in addition to the evidence of PWs 16 and 32,the evidence of S. Narayan Singh (PW 21) provides the
necessary links and strengthens the prosecution’s version.
We also find substance in the plea taken by learned counsel
for the State that evidence of Amar Singh Bungai (PW 24)
was not tainted in any way, and should not have been
discarded and disbelieved only on surmises. Balbir Singh
(PW 3), the son of the deceased, has also stated about the
provocative statements in his evidence. Darshan Singh (PW
14) has spoken about the speeches of the accused Esher
Singh, highlighting the Khalistan movement. We find that
the trial court had not given importance to the evidence of
some of the witnesses on the ground that they were
relatives of the deceased. The approach is wrong. The mere
relationship does not discredit the testimony of a witness.
What is required is careful scrutiny of the evidence. If, after
careful scrutiny, the evidence is found to be credible and
cogent, it can be acted upon. In the instant case, the trial
court did not indicate any specific reason to cast doubt on
the veracity of the evidence of the witnesses whom it had
described as the relatives of the deceased. PW 24 has
categorically stated about the provocative speeches by A-1.
No definite cross-examination on the provocative nature
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2026:HHC:9659
of speech regarding the Khalistan movement was made, so
far as this witness is concerned.”
40. This position was reiterated in Shamim v. State (NCT of
.
Delhi), (2018) 10 SCC 509: 2018 SCC OnLine SC 1559, where it was
held at page 513:
“12. While appreciating the evidence of a witness, the
approach must be whether the evidence of the witness,of
read as a whole, inspires confidence. Once that impression
is formed, it is undoubtedly necessary for the court to
scrutinise the evidence more particularly keeping in view
the deficiencies, drawbacks and infirmities pointed out in
rt
the evidence as a whole and evaluate them to find out
whether it is against the general tenor of the evidence andwhether the earlier evaluation of the evidence is shaken as
to render it unworthy of belief. Minor discrepancies on
trivial matters not touching the core of the case, a
hypertechnical approach by taking sentences torn out ofcontext here or there from the evidence, and attaching
importance to some technical error without going to the
root of the matter would not ordinarily permit rejection ofthe evidence as a whole. Minor omissions in the police
statements are never considered to be fatal. Thestatements given by the witnesses before the police are
meant to be brief statements and cannot take the place ofevidence in court. Small/trivial omissions would not justify
a finding by the court that the witnesses concerned are
liars. The prosecution’s evidence may suffer from
inconsistencies here and discrepancies there, but that is a
shortcoming from which no criminal case is free. The main
thing to be seen is whether those inconsistencies go to the
root of the matter or pertain to insignificant aspects
thereof. In the former case, the defence may be justified in
seeking advantage of incongruities obtained in the
evidence. In the latter, however, no such benefit may be
available to it.”
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41. Similar is the judgment in Kalabhai Hamirbhai
Kachhot v. State of Gujarat, (2021) 19 SCC 555: 2021 SCC OnLine SC
.
347, wherein it was observed at page 564:
“22. We also do not find any substance in the argument of
the learned counsel that there are major contradictions in
the deposition of PWs 18 and 19. The contradictions which
are sought to be projected are minor contradictions whichof
cannot be the basis for discarding their evidence. The
judgment of this Court in Mohar [Mohar v. State of U.P.,
(2002) 7 SCC 606: 2003 SCC (Cri) 121], relied on by the
learned counsel for the respondent State, supports the case
rt
of the prosecution. In the aforesaid judgment, this Court
has held that convincing evidence is required to discreditan injured witness. Para 11 of the judgment reads as under:
(SCC p. 611)
“11. The testimony of an injured witness has its own
efficacy and relevancy. The fact that the witnesssustained injuries on his body would show that he was
present at the place of occurrence and had seen the
occurrence by himself. Convincing evidence would berequired to discredit an injured witness. Similarly, every
discrepancy in the statement of a witness cannot betreated as fatal. A discrepancy which does not affect the
prosecution’s case materially cannot create anyinfirmity. In the instant case, the discrepancy in the
name of PW 4 appearing in the FIR and the cross-
examination of PW 1 has been amply clarified. In cross-
examination, PW 1 clarified that his brother Ram Awadh
had three sons: (1) Jagdish, PW 4, (2) Jagarnath, and (3)
Suresh. This witness, however, stated that Jagarjit had
only one name. PW 2 Vibhuti, however, stated that at
the time of occurrence, the son of Ram Awadh, Jagjit
alias Jagarjit, was milking a cow, and he was also called
as Jagdish. Balli (PW 3) mentioned his name as Jagjit
and Jagdish. PW 4 also gave his name as Jagdish.”
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23. The learned counsel for the respondent State has
also relied on the judgment of this Court in Naresh [State of
U.P. v. Naresh, (2011) 4 SCC 324: (2011) 2 SCC (Cri) 216]. In
.
the aforesaid judgment, this Court has held that the
evidence of injured witnesses cannot be brushed aside
without assigning cogent reasons. Paras 27 and 30 of the
judgment, which are relevant, read as under: (SCC pp. 333-
34)
“27. The evidence of an injured witness must be
given due weight, being a stamped witness; thus, his
of
presence cannot be doubted. His statement is generally
considered to be very reliable, and it is unlikely that he
has spared the actual assailant in order to falsely
implicate someone else. The testimony of an injured
rt
witness has its own relevancy and efficacy as he has
sustained injuries at the time and place of occurrence,
and this lends support to his testimony that he was
present during the occurrence. Thus, the testimony of
an injured witness is accorded a special status in law.
The witness would not like or want to let his actual
assailant go unpunished merely to implicate a third
person falsely for the commission of the offence. Thus,
the evidence of the injured witness should be relied
upon unless there are grounds for the rejection of his
evidence on the basis of major contradictions and
discrepancies therein. (Vide Jarnail Singh v. State of
Punjab [Jarnail Singh v. State of Punjab, (2009) 9 SCC 719:
(2010) 1 SCC (Cri) 107], Balraje v. State of Maharashtra
[Balraje v. State of Maharashtra, (2010) 6 SCC 673: (2010)
3 SCC (Cri) 211] and Abdul Sayeed v. State of M.P. [Abdul
Sayeed v. State of M.P., (2010) 10 SCC 259: (2010) 3 SCC
(Cri) 1262])
***
30. In all criminal cases, normal discrepancies are
bound to occur in the depositions of witnesses due to
normal errors of observation, namely, errors of memory
due to lapse of time or due to mental dispositions such
as shock and horror at the time of occurrence. Where::: Downloaded on – 01/04/2026 20:34:47 :::CIS
47
2026:HHC:9659the omissions amount to a contradiction, creating
serious doubt about the truthfulness of the witness and
other witnesses also make material improvement while.
deposing in the court, such evidence cannot be safe to
rely upon. However, minor contradictions,
inconsistencies, embellishments or improvements on
trivial matters which do not affect the core of the
prosecution case, should not be made a ground on
which the evidence can be rejected in its entirety. The
court has to form its opinion about the credibility of the
of
witness and record a finding as to whether his
deposition inspires confidence.
‘9. Exaggerations, per se, do not render the evidence
brittle. But it can be one of the factors to test the
rt
credibility of the prosecution version when the entire
evidence is put in a crucible for being tested on the
touchstone of credibility.’ [Ed.: As observed in Bihari
Nath Goswami v. Shiv Kumar Singh, (2004) 9 SCC 186, p.
192, para 9: 2004 SCC (Cri) 1435]
Therefore, mere marginal variations in the statements
of a witness cannot be dubbed as improvements, as the
same may be elaborations of the statement made by the
witness earlier. The omissions which amount to
contradictions in material particulars, i.e. go to the root
of the case/materially affect the trial or core of the
prosecution’s case, render the testimony of the witness
liable to be discredited. (Vide State v. Saravanan [State v.
Saravanan, (2008) 17 SCC 587 : (2010) 4 SCC (Cri) 580],
Arumugam v. State [Arumugam v. State, (2008) 15 SCC
590 : (2009) 3 SCC (Cri) 1130], Mahendra Pratap Singh v.
State of U.P. [Mahendra Pratap Singh v. State of U.P.,
(2009) 11 SCC 334 : (2009) 3 SCC (Cri) 1352] and Sunil
Kumar Sambhudayal Gupta v. State of Maharashtra [Sunil
Kumar Sambhudayal Gupta v. State of Maharashtra,
(2010) 13 SCC 657 : (2011) 2 SCC (Cri) 375]”
24. Further, in Narayan Chetanram Chaudhary v. State of
Maharashtra [Narayan Chetanram Chaudhary v. State of
Maharashtra, (2000) 8 SCC 457: 2000 SCC (Cri) 1546], this::: Downloaded on – 01/04/2026 20:34:47 :::CIS
48
2026:HHC:9659Court has considered the effect of the minor contradictions
in the depositions of witnesses while appreciating the
evidence in a criminal trial. In the aforesaid judgment, it is.
held that only contradictions in material particulars and
not minor contradictions can be grounds to discredit the
testimony of the witnesses. The relevant portion of para 42
of the judgment reads as under: (SCC p. 483)“42. Only such omissions that amount to a
contradiction in material particulars can be used to
discredit the testimony of the witness. The omission inof
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
rt
statements, the case of the prosecution becomes
doubtful and not otherwise. Minor contradictions arebound to appear in the statements of truthful witnesses,
as memory sometimes plays false, and the sense of
observation differs from person to person. The
omissions in the earlier statement, if found to be oftrivial 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 onany material point, that is no ground to reject the whole
of the testimony of such witness.”
42. Therefore, the testimony of the victim cannot be
discarded simply because the learned defence counsel had
confronted her with a portion of her statement after asking her
whether she had deposed about what was told by her to the police.
43. It was submitted that the victim had a congenital
malformation of the vagina, as per the opinion of the
gynecologist and her testimony that the accused Sanjeev was
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maintaining physical relations with her is false. This submission
is only stated to be rejected. Dr Poojan (PW3) specifically stated
.
that, as per her opinion, the possibility of sexual intercourse
could not be ruled out even with the patient of vaginal congenital
agenesis/malformations because partial penetration is possible.
Therefore, the medical expert has categorically stated that there
of
was a possibility of a physical relationship, even if there was a
malformation of the vagina, and the submission that the victim’s
rt
testimony is to be discarded because of the malformation of her
vagina cannot be accepted.
44. Raj Kumar (PW21) stated that no SIM was issued in his
name. He used SIM number xxxx729. He was permitted to be
cross-examined and denied that mobile number xxxx271 was
issued in his name; he had lost it and had not reported the matter
to the police.
45. It was submitted that the testimony of this witness
made the prosecution’s case doubtful, as the mobile number
xxx271 was not connected to the accused. This submission will
not help the accused. This witness was contradicted by his
previous statement, wherein he had told the police that the SIM
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belonged to him and that he had lost it. Thus, he had made two
inconsistent statements: one before the police and one before the
.
Court, which cannot stand together. Thus, his credit has been
impeached under Section 155 (3) of the Indian Evidence Act. It
was laid down by the Hon’ble Supreme Court in Sat Paul v. Delhi
Admn., (1976) 1 SCC 727 that where a witness has been thoroughly
of
discredited by confronting him with the previous statement, his
statement cannot be relied upon. However, when he is confronted
rt
with some portions of the previous statement, his credibility is
shaken to that extent, and the rest of the statement can be relied
upon. It was observed:
“52. From the above conspectus, it emerges clearly that
even in a criminal prosecution, when a witness is cross-
examined and contradicted with the leave of the court by
the party calling him, his evidence cannot, as a matter oflaw, be treated as washed off the record altogether. It is for
the Judge of fact to consider in each case whether, as aresult of such cross-examination and contradiction, the
witness stands thoroughly discredited or can still be
believed regarding a part of his testimony. If the Judge
finds that in the process, the credit of the witness has not
been completely shaken, he may, after reading and
considering the evidence of the witness, as a whole, with
due caution and care, accept, in the light of the other
evidence on the record, that part of his testimony which he
finds to be creditworthy and act upon it. If in a given case,
the whole of the testimony of the witness is impugned, and
in the process, the witness stands squarely and totally::: Downloaded on – 01/04/2026 20:34:47 :::CIS
51
2026:HHC:9659discredited, the Judge should, as a matter of prudence,
discard his evidence in toto.”
46. This Court also took a similar view in Ian Stilman
.
versus. State 2002(2) ShimLC 16 wherein it was observed:
“12. It is now well settled that when a witness who has been
called by the prosecution is permitted to be cross-
examined on behalf of the prosecution, such a witness loses
credibility and cannot be relied upon by the defence. Weof
find support for the view we have taken from the various
authorities of the Apex Court. In Jagir Singh v. The State
(Delhi Administration), AIR 1975 Supreme Court 1400, the
Apex Court observed:
rt
“It is now well settled that when a witness, who hasbeen called by the prosecution, is permitted to be
cross-examined on behalf of the prosecution, the
result of that course being adopted is to discredit this
witness altogether and not merely to get rid of a partof his testimony.
47. Hence, no reliance can be placed upon his testimony.
48. The victim deposed about the role of the accused
Kanchan Kumar in taking her to Jukhala through Khad. Nothing
was suggested in her cross-examination that she was having any
motive to depose falsely against the accused Kanchan. Therefore,
her testimony regarding the involvement of the accused Kanchan
cannot be discarded.
49. The victim’s father (PW1) stated that the HRTC Bus
bound to Mandi from Shimla came to Brahmpukhar at about 4:30
PM, which was stopped by the police for checking. The victim was
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2026:HHC:9659
found sitting in the bus with P. The victim was taken off the bus
on his identification, and her custody was handed over to him.
.
50. HC Hem Raj (PW17) stated that he was searching for
the victim. One HRTC bus came from Shimla and stopped at
Brahmpukhar. The victim came out of the bus and was seen by her
father. She was caught by her parents.
of
51. It was submitted that there is a discrepancy in the
statement of these witnesses regarding the manner in which the
rt
victim was recovered. The victim’s father stated that the victim
was seen sitting inside the bus with a juvenile P, whereas HC Hem
Raj stated that the victim was exiting the bus when she was
spotted by the victim’s parents. This discrepancy is minor and will
not affect the prosecution’s case. The core of these statements
that the victim was travelling in the bus has remained unshaken.
This is as per the victim’s version that she was coming from
Shimla with a juvenile P, and a minor discrepancy in the
statements of the witnesses is not sufficient to discredit this
version.
52. The victim stated that she had left her home at 7 PM
when her parents were busy. It was submitted that there was no
kidnapping from her lawful guardianship. This submission will
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not help the accused. The victim specifically stated that the
accused, Sanjeev Kumar @ Sanju, had told her that their
.
relationship was known to the whole world and she should run
away from her home. He had promised to pay her the money. She
also stated that she went to the house of the accused, and the
accused paid ₹800/- to her. Therefore, it is apparent from her
of
testimony that she was told that she was defamed and was
promised the money. Therefore, her consent was not free. In any
rt
case, the victim was a minor, and her consent was immaterial.
Section 361 of IPC defines kidnapping from lawful guardianship as
under:
361. Kidnapping from lawful guardianship
Whoever takes or entices any minor under sixteenyears of age if a male, or under eighteen years of age
if a female, or any person of unsound mind, out ofthe keeping of the lawful guardian of such minor or
person of unsound mind, without the consent ofsuch guardian, is said to kidnap such minor or
person from lawful guardianship.
53. This Section shows that the offence of kidnapping is
committed against guardians, and the consent of the minor is
immaterial. It was laid down by the Hon’ble Supreme Court in
Prakash vs. State of Haryana (2004) 1 SCC 399 that the offence of
kidnapping is for the protection of the minor, and the only
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consent of the guardian can take it out of the purview of section
361. It was observed:
.
The object of this section seems to protect the minor
children from being seduced for improper purposes, as to
protect the rights and privileges of guardians having thelawful charge or custody of their minor wards. The
gravamen of this offence lies in the taking or enticing of a
minor under the ages specified in this section, out of theof
keeping of the lawful guardian without the consent of such
guardian. The words “takes or entices any minor ……… out
of the keeping of the lawful guardian of such minor” in
Section 361 are significant. The use of the word “Keeping”
rt
in the context connotes the idea of charge, protection,
maintenance and control; further, the guardian’s chargeand control appear to be compatible with the independence
of action and movement in the minor, the guardian’s
protection and control of the minor being available
whenever the necessity arises. On a plain reading of thissection, the consent of the minor who is taken or enticed is
wholly immaterial: it is only the guardian’s consent, which
takes the case out of its purview. Nor is it necessary thatthe taking or enticing must be shown to have been by
means of force or fraud. Persuasion by the accused person,which creates willingness on the part of the minor to be
taken out of the keeping of the lawful guardian, would besufficient to attract the Section.”
54. This provision was also considered by the Hon’ble
Supreme Court in Anversinha @ Kiransinh Fatesinh Zala vs. State of
Gujarat 2021(3) SCC 12, and it was held:
16. A bare perusal of the relevant legal provisions, as
extracted above, shows that consent of the minor is
immaterial for purposes of Section 361 of the IPC. Indeed,
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2026:HHC:9659and other laws like the Indian Contract Act, 1872, minors
are deemed incapable of giving lawful consent. [Satish
Kumar Jayanti Lal Dabgar vs. State of Gujarat, (2015) 7 SCC.
359, 15.] Section 361 IPC, particularly, goes beyond this
simple presumption. It bestows the ability to make crucial
decisions regarding a minor’s physical safety upon his/her
guardians. Therefore, a minor girl’s infatuation with her
alleged kidnapper cannot by itself be allowed as a defence,
for the same would amount to surreptitiously undermining
the protective essence of the offence of kidnapping.
of
55. Therefore, the consent of the victim is immaterial for
the charge of kidnapping, and only the consent of the guardian of
rt
the victim can help the accused.
56. It was submitted that the victim had left her home on
18.08.2008 at about 9-9:30 pm, and the matter was reported to
the police on 19.08.2008. There was a delay in reporting the
matter, which made the prosecution’s case suspect. This
submission cannot be accepted. The victim’s father stated that he
had searched for the victim. This was a reasonable conduct as the
victim’s father would not have rushed to the Police Station
without making inquiries from his relatives and friends.
Therefore, the delay in reporting the matter was properly
explained by the victim’s father, and the prosecution’s case
cannot be doubted due to the delay.
57. The victim’s statement showed that she left the home
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because the accused, Sanjeev, had paid her money. It was laid
down by the Hon’ble Supreme Court in State of Haryana versus
.
Raja Ram 1973 (1) SCC 544, that where the victim was persuaded
by the messages sent by the accused, the accused would be guilty
of kidnapping the victim out of her father’s lawful guardianship.
The fact that the victim was easily persuaded would not make any
of
difference. It was observed: –
rt
“9. In the present case, the evidence of the prosecutrix, as
corroborated by the evidence of Narain Das, P.W. 1 (her
father), Abinash Chander, P.W. 3 (her brother) and Smt.Tarawanti P.W. 4 (her mother) convincingly establishes
beyond a reasonable doubt : (1) that Jai Narain had tried to
become intimate with the prosecutrix and to seduce her togo and live with him, and an objection having been raised
by her father, who asked Jai Narain not to visit his house.
Jai Narain started sending messages to the prosecutrix
through Raja Ram, respondent; (2) that Raja Ram,
respondent, had been asking the prosecutrix to be ready to
accompany Jai Narain; (3) that at about 12 noon on April 4
Raja Ram went to see the prosecutrix at her house and
asked her to visit his house when he would convey Jai
Narain’s message to her : (4) that on the same day after
some time Sona was sent by her father to the house of the
prosecutrix to fetch her to his house where the prosecutrix
was informed that Jai Narain would come that night and
would take the prosecutrix away: and (5) that Raja Ram
accordingly asked the prosecutrix to visit his house at
about midnight so that she may be entrusted to Jai Narain.
This evidence was believed by the learned Additional
Sessions Judge who convicted the respondent, as already
noticed. The learned single Judge also did not disbelieve
her statement. Indeed, in the High Court, the learned
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counsel for Raja Ram had proceeded on the assumption
that the evidence of the prosecutrix is acceptable, the
argument being that even accepting her statement to be
.
correct, no offence was made out against Raja Ram. Once
the evidence of the prosecutrix is accepted in our opinion,
Raja Ram cannot escape conviction for the offence of
kidnapping her from her father’s lawful guardianship. It
was not at all necessary for Raja Ram to have himself gone
to the house of the prosecutrix to bring her from there on
the midnight in question. It was sufficient if he had earlier
of
been soliciting or persuading her to leave her father’s
house to go with him to Jai Narain. It is fully established on
the record that he had been conveying messages from Jai
Narain to the prosecutrix and had himself been persuading
rt
her to accompany him to Jai Narain’s place, where he
would hand her over to him. Indisputably, the last message
was conveyed by him to the prosecutrix when she was
brought by his daughter Sona from her own house to his,
and it was pursuant to this message that the prosecutrix
decided to leave her father’s house at midnight in question
for going to Raja Ram’s house for the purpose of being
taken to Jai Narain’s place. On these facts, it is difficult to
hold that Raja Ram was not guilty of taking or enticing the
prosecutrix out of the keeping of her father’s lawful
guardianship. Raja Ram’s action was the proximate cause
of the prosecutrix going out of the keeping of her father,
and indeed, but for Raja Ram’s persuasive offer to take her
to Jai Narain, the prosecutrix would not have gone out of
the keeping of her father, who was her lawful guardian, as
she actually did. Raja Ram actively participated in the
formation of the intention of the prosecutrix to leave her
father’s house. The fact that the prosecutrix was easily
persuaded to go with Raja Ram would not prevent him
from being guilty of the offence of kidnapping her. Her
consent or willingness to accompany Raja Ram would be
immaterial, and it would be equally so even if the proposal
to go with Raja Ram had emanated from her. There is no
doubt a distinction between taking and allowing a minor to
accompany a person. But the present is not a case of the
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prosecutrix herself leaving her father’s house without any
inducement by Raja Ram, who merely allowed her to
accompany him.”
.
58. Similarly, it was held in Anversinha @ Kiransinh
Fatesinh Zala (supra) that where the accused had the intent to
marry the victim, her enticement was duly proved. It was
observed:
of
“14. Adverting to the facts of the present case, the
appellant has unintentionally admitted his culpability.
Besides the victim being recovered from his custody, the
rt
appellant admits to having established sexual intercourse
and having the intention to marry her. Although the
victim’s deposition that she was forcefully removed from
the custody of her parents might possibly be a belated
improvement, the testimonies of numerous witnesses
make out a clear case of enticement. The evidence on
record further unequivocally suggests that the appellant
induced the prosecutrix to reach at a designated place to
accompany him.”
59. In the present case, the accused and the victim knew
each other. The accused had instigated the victim to leave her
home, and the victim left the home after such instigation.
Therefore, the statement of the victim that she had left the home
on her own will not show that no offence of kidnapping was
committed.
60. The learned Trial Court held that the accused Brij Lal
used to call the victim and ask her to marry the accused Sanjeev
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Kumar @ Sanju, which showed his involvement. This finding
cannot be sustained. The victim’s grandfather (PW9) stated that
.
he had received a call on his mobile on 16.08.2008 in the evening,
and an enquiry was made about the victim. The caller’s mobile
number was displayed as xxxx271. The victim told him on enquiry
that the call was made by Sanjeev @ Sanju. Thus, as per his
of
testimony, only one call was made, and he had not handed over
the mobile phone to the victim. Hence, the part of the testimony
rt
of the victim that accused Brij Lal used to call the victim and ask
her to marry the accused Sanjeev @ Sanju was not proved beyond
a reasonable doubt.
61. The accused Kanchan Kumar had accompanied her to
Jukhala. He advised the victim to call Pawan and ask for his
number. Pawan did not respond to the call. Therefore, the victim
has only attributed the role of making a call to the accused,
Pawan. Learned Trial Court held that the accused Pawan Kumar
and the accused Brij Lal had repeatedly threatened the victim,
which was not established from the victim’s testimony.
Therefore, the learned Trial Court erred in holding the accused
Pawan Kumar and Brij Lal guilty of the commission of offences
punishable under Section 120-B, 363 and 366 of the IPC.
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62. Accused Kanchan Kumar had accompanied the victim
to Jukhala. He had helped her to board the bus to Shimla with the
.
juvenile P. Accused Sanjeev @ Sanju had asked the victim to leave
the home, and accused Kanchan Kumar had facilitated the victim
after she had left the home. This conduct showed that he was
acting at the behest of the accused Sanjeev @ Sanju, and the
of
conspiracy to kidnap the victim was duly proved.
63. The victim specifically stated that the accused,
rt
Sanjeev, intended to marry her. There is no reason to doubt her
testimony, and the ingredients of the commission of an offence
punishable under Section 366 of the IPC were fully satisfied.
64. The victim stated that the accused, Sanjeev Kumar,
threatened to kill her. This is corroborated by the fact that she had
not narrated the incident to any person till calls were made to her
home, and the learned Trial Court had rightly convicted the
accused Sanjeev Kumar of the commission of an offence
punishable under Section 506 of the IPC.
65. Learned Trial Court convicted the accused for the
commission of offences punishable under Sections 363 and 366 of
the IPC. Section 366 of IPC is an aggravated form of Section 363,
and as per Section 71, a person being punished for the aggravated
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form cannot be punished for a minor offence. This position was
recognised in Emperor v. Mahmud Ali Khan, 1933 SCC OnLine All 54:
.
ILR (1933) 55 All 557, wherein it was observed at page 561:
“It seems to me unreasonable, when a man is found guilty
of the major offence of illicitly manufacturing excisable ar-
ticles, that he should also be severely punished for keeping
in his possession materials for manufacturing those arti-
of
cles and for possessing them. The one offence includes all
the others. Further, section 71 of the Penal Code, 1860,
provides for this. It is there laid down that “Where any-
thing which is an offence is made up of parts, any of which
rt
parts is itself an offence, the offender shall not be punished
with the punishment of more than one of such his of-
fences, unless it be so expressly provided”; and also
“Where several acts, of which one or more than one would
by itself or themselves constitute an offence, constitute,
when combined, a different offence, the offender shall notbe punished with a more severe punishment than the court
which tries him could award for any one of such offences.”
66. Hence, the learned Trial Court erred in convicting the
accused of the commission of an offence punishable under Section
363 read with Section 120B of the IPC.
67. No other point was urged.
68. Therefore, the learned Trial Court had rightly held
that the accused Sanjeev Kumar and Kanchan Kumar were guilty
of committing the offences punishable under Section 366 read
with Section 120-B of IPC, and the accused Sanjeev Kumar was
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guilty of the commission of the offence punishable under Section
506 of IPC.
.
69. Learned Trial Court erred in convicting the accused
Brij Lal and Pawan Kumar of the commission of offences
punishable under Sections 363, 366 and 120-B of IPC. Learned
Trial Court also erred in convicting the accused Sanjeev Kumar
of
and Kanchan Kumar of the commission of an offence punishable
under Section 363 of IPC when the conviction was recorded of the
rt
aggravated offence of Section 366 read with Section 120 B of the
IPC. Hence, the judgment passed by the learned Trial Court is
partly sustainable.
70. Learned Trial Court sentenced each accused for the
commission of an offence punishable under Section 366 read with
Section 120-B of IPC, for 5 years pay a fine of ₹5000/- and in
default of payment of fine, to undergo simple imprisonment for
six months. The victim was a minor. She was threatened to leave
her home. Hence, in these circumstances, the sentence of 5 years
cannot be said to be excessive.
71. The learned Trial Court sentenced the accused Sanjeev
Kumar to undergo rigorous imprisonment for three years, pay a
fine of ₹5,000/- and in default of payment of fine to undergo
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further simple imprisonment for two months. The victim
consistently stated that she had been threatened since she was
.
aged 8 years. She was forced to leave her home by the threats
given by the accused. The accused was remotely related to her and
was bound to protect her. However, he took advantage of the
victim by intimidating her. Hence, the sentence of three years
of
cannot be said to be excessive.
72. In view of the above, the appeals filed by accused
rt
Pawan Kumar, i.e., Cr. Appeal No. 202 of 2014 and accused Brij Lal,
i.e., Cr. Appeal No. 203 of 2014 are allowed, and the judgment of
conviction dated 28.04.2024 and order of sentence dated
30.04.2014 passed by the learned Trial Court qua them are ordered
to be set aside. The appellants/accused Pawan Kumar and Brij Lal
are acquitted of the commission of offences punishable under
Sections 363 and 366 read with Section 120-B of the IPC. The fine
amount, if deposited be refunded to them after the expiry of the
period of limitation for filing an appeal, if no appeal is filed, and
in case of appeal, it be dealt with as per the judgment of the
Hon’ble Supreme Court.
73. Appeals filed by accused Sanjeev Kumar and Kanchan
Kumar are partly allowed, and the conviction and sentence
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recorded for the commission of the offence punishable under
Section 363 read with Section 120-B of IPC are ordered to be set
.
aside. Subject to this modification, the rest of the judgment and
sentence imposed upon accused Sanjeev Kumar and Kanchan
Kumar are upheld.
of
74. In view of the provisions of Section 437-A of the Code
of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha
rt
Sanhita, 2023) the appellants/accused Pawan Kumar and Brij Lal
are directed to furnish bail bonds in the sum of ₹25,000/- each
with one surety each in the like amount to the satisfaction of the
learned Trial Court within four weeks, which shall be effective for
six months with stipulation that in the event of Special Leave
Petition being filed against this judgment, or on grant of the
leave, the appellants/accused on receipt of notice thereof, shall
appear before the Hon’ble Supreme Court.
75. A copy of this judgment, along with the record of the
learned Trial Court, be sent back forthwith. Pending applications,
if any, also stand disposed of.
(Rakesh Kainthla)
Judge
1st April, 2026
(Nikita)
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