Himachal Pradesh High Court
Reserved On: 07.03.2025 vs State Of H.P on 7 April, 2025
2025:HHC:9276
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 73 of 2010
Reserved on: 07.03.2025
Date of Decision: 07.04.2025
Ajay Kumar and Anr. ...Petitioners
Versus
State of H.P. ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1
For the Petitioners : Mr. Shivank Singh Panta, Advocate.
For the Respondent : Mr. Lokender Kutlehria, Additional
Advocate General.
Rakesh Kainthla, Judge
The present petition is filed against the judgment
dated 27.02.2010, passed by learned Additional Sessions Judge,
Fast Track Court, Kangra at Dharamshala, H.P. (learned
Appellate Court), vide which the judgment and order passed by
learned Judicial Magistrate, First Class, Palampur, District
Kangra (learned Trial Court) were upheld. (Parties shall
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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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
petition are that the police presented a challan against the
accused before the learned Trial Court for the commission of
offences punishable under Sections 353 & 332 of the Indian Penal
Code (in short 'IPC'). It was asserted that Informant-Jaswant
Singh (PW-1) was posted as a Driver in Chandigarh Roadways. He
was driving a bus bearing registration No. CH-01G-8165 on
11.09.2001. Suresh Kumar (PW-2) was posted as a conductor on
the bus. The bus reached Palampur at 09:20 am. The Driver and
Conductor of Anurag Bus bearing registration No. HP-53-6313
came towards the informant. They dragged the informant out of
the bus and started beating him by saying that the informant had
picked up the passengers of Anurag Bus. Names of the driver and
conductor of Anurag Bus were found to be Ajay Kumar and Devi
Singh, who were subsequently arrayed as accused. They gave
beatings to the informant. The hair of the informant's beard was
uprooted by the accused. His shirt was also torn. The informant
shouted for help and Suresh Kumar (PW-2) tried to rescue him,
however, the accused also gave him beatings. The informant
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sustained injuries. He was rescued by the employees of HRTC.
Intimation was given to the police and entry No. 5 was recorded
in the Police Station. HC Jai Chand (PW-7), and Constable
Kuldeep Chand came to the spot for verification of the
information. HC Jai Chand recorded statement of the informant
(Ex. PW-4/B) and sent it to the Police Station where FIR (Ex. PW-
4/A) was registered. Dr. Mrs. P. Singh (PW-10) conducted the
medical examination of Suresh Kumar and found that he had not
sustained any external injury. She issued the MLC (Ex. PW-10/A).
She also examined Jaswant Singh and found simple injuries on
his person, which could have been caused by a blunt weapon
within 6 to 8 hours of the examination. She issued the MLC
(PW-10/B). HC Jai Chand conducted the investigation. He
prepared the site plan (Ex. PW-7/B). He seized the Bus bearing
registration No. CH-01G-8165 vide seizure memo (Ex. PW-1/B)
and the Bus bearing registration No. HP-53-6313 vide memo (Ex.
PW-3/A). The informant produced his shirt (Ex. P1) and the hairs
of his beard (Ex. P2) which were seized vide memo (Ex. PW-1/C).
HC Jai Chand also seized a shirt (Ex P3), undervest (Ex. P4) and
the cash bag of the Conductor (Ex. P5). He seized the
appointment orders of the informant and conductor Suresh
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Kumar from the Office of CTU. He recorded the statements of
witnesses as per their version. The challan was presented before
the learned Trial Court after the completion of the investigation.
3. The learned Trial Court charged the accused with the
commission of offences punishable under Section 332 read with
Section 34 of IPC, to which the accused pleaded not guilty and
claimed to be tried.
4. The prosecution examined 10 witnesses to prove its
case. Jaswant Singh (PW-1) is the informant. Suresh Kumar
(PW-2) was posted as a conductor on the Bus. Kundan Singh
(PW-3) is an eyewitness and an employee of HRTC. Bal Raj (PW-
4) signed the FIR. Malkiat Singh Rana (PW-5) produced the
appointment and posting orders of the victim and conductor
Suresh Kumar. Murli Ram (PW-6) is another eye witness, HC Jai
Chand (PW-7) conducted the investigation. Pyare Lal (PW-8) is
the owner of Anurag Bus. Anurag Sharma (PW-9) produced the
documents of the Bus. Dr. Mrs. P. Singh (PW-10) conducted the
medical examination of the victim and the conductor.
5. The accused in their statements recorded under
Section 313 of Cr.P.C. admitted that informant Jaswant Singh and
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Suresh Kumar were deputed as Driver and Conductor on the bus
bearing registration No. CH-01G-8165 on 11.02.2001 at about
9:20 am. They admitted that Ajay Kumar was the Driver of
Anurag Bus and Devi Singh was a Conductor of the said bus. They
denied the rest of the prosecution case. They stated that they
were innocent and a false case was registered against them.
Initially, they stated that they wanted to lead defence evidence
however, no evidence was led subsequently.
6. The learned Trial Court held that the testimony of the
informant was duly corroborated by the conductor and other
eyewitnesses. The informant's clothes were also torn which
corroborated his version. Medical evidence proved the injuries
sustained by the informant. Hence, the learned Trial Court
convicted and sentenced the accused in the following manner:-
Under Section 353 IPC To undergo rigorous imprisonment for a
period of three months and to pay a fine of ₹
1500/- each and in default of payment of fine
to undergo further simple imprisonmnt for
two months each.
Under Section 332 IPC To under rigorous imprisonment for a period
of six months and to pay a fine of ₹ 1500/-
each and in default of payment of fine to
undergo further simple imprisonment for two
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months each.
7. Being aggrieved by the judgment passed by learned
Trial Court, the accused filed an appeal, which was decided by
learned Additional Sessions Judge, Fast Track Court, Kangra at
Dharamshala (learned Appellate Court). Learned Appellate Court
concurred with the findings recorded by learned Trial Court that
the accused inflicted injuries to the informant and Suresh Kumar
while they were discharging their official duties. The testimonies
of the informant and Suresh Kumar were duly corroborated by
independent witnesses, recovery of torn clothes and the injuries
noticed by the Medical Officer. Hence, the appeal filed by the
accused was dismissed and the judgment of conviction and order
of sentence passed by learned Trial Court were upheld.
8. Being aggrieved by the judgment and order passed by
learned Courts below, the accused have filed the present revision,
asserting that the learned Courts below misconstrued the
evidence led by the prosecution. The prosecution story was full
of contradiction and there was no reliable evidence to prove the
prosecution case. The independent witness did not support the
prosecution's case. No passenger of either Bus was examined by
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the prosecution. The prosecution relied upon the testimonies of
interested witnesses. Therefore, it was prayed that the present
revision be allowed and the judgments and order passed by
learned Courts below be set aside.
9. I have heard Mr. Shivank Singh Panta, learned counsel
for the petitioners/accused, and Mr. Lokender Kutlehria, learned
Additional Advocate General for the respondent-State.
10. Mr Shivank Singh Panta, learned counsel for the
petitioners/accused, submitted that the learned Courts below
erred in convicting and sentencing the accused. There was no
satisfactory evidence to prove that the accused had beaten the
informant and Suresh Kumar. There were various contradictions
in the testimonies of the prosecution witnesses which rendered
them unreliable. Learned Courts below erred in relying upon the
testimonies of the witnesses to convict and sentence the accused.
The benefit of the Probation of Offenders Act was not granted to
the accused. Hence, he prayed that the present revision be
allowed and the judgments and order passed by learned Courts
below be set aside. He relied upon Mekala Sivaiah Vs. State of
Andhra Pradesh 2022 STPL 9968 SC, D. Chattaiah and another Vs.
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State of Andhra Pradesh 1978 STPL 2632 SC, Leela Ram (D) through
Duli Chand Vs. State of Haryana and another 1999 STPL 10821 SC,
Balasaheb Nivrutti Jagtap Vs. State of Maharashtra Crl. Revision No.
52 of 2005, decided on 20.3.2018 and Parvinder Kumar Vs. State of
H.P. Crl. Revision No. 49 of 2009, decided on 30.10.2017 in support
of his submission.
11. Mr. Lokender Kutlehria learned Additional Advocate
General for the respondent-State submitted that learned Courts
below had rightly convicted and sentenced the accused. This
Court should not re-appreciate the evidence while deciding a
revision. There is no perversity in the judgments and order
passed by learned Courts below. Hence, he prayed that the
present revision be dismissed.
12. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
13. It was laid down by the Hon'ble Supreme Court in
Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204:
(2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the revisional
court is not an appellate Court and it can only rectify the patent
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defect, errors of jurisdiction or the law. It was observed on page
207: -
"10. Before adverting to the merits of the contentions, at
the outset, it is apt to mention that there are concurrent
findings of conviction arrived at by two courts after a
detailed appreciation of the material and evidence brought
on record. The High Court in criminal revision against
conviction is not supposed to exercise the jurisdiction like
the appellate court, and the scope of interference in
revision is extremely narrow. Section 397 of the Criminal
Procedure Code (in short "CrPC") vests jurisdiction to
satisfy itself or himself as to the correctness, legality or
propriety of any finding, sentence or order, recorded or
passed, and as to the regularity of any proceedings of such
inferior court. The object of the provision is to set right a
patent defect or an error of jurisdiction or law. There has
to be a well-founded error which is to be determined on
the merits of individual cases. It is also well settled that
while considering the same, the Revisional Court does not
dwell at length upon the facts and evidence of the case to
reverse those findings.
14. This position was reiterated in State of Gujarat v.
Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC 1294, wherein it was
observed:
"13. The power and jurisdiction of the Higher Court under
Section 397 Cr. P.C., which vests the court with the power
to call for and examine records of an inferior court, is for
the purposes of satisfying itself as to the legality and
regularity of any proceeding or order made in a case. The
object of this provision is to set right a patent defect or an
error of jurisdiction or law or the perversity which has
crept into such proceedings. It would be apposite to refer
to the judgment of this court in Amit Kapoor v. Ramesh
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Chandra, (2012) 9 SCC 460, where the scope of Section 397
has been considered and succinctly explained as under:
"12. Section 397 of the Code vests the court with the
power to call for and examine the records of an
inferior court for the purposes of satisfying itself as
to the legality and regularity of any proceedings or
order made in a case. The object of this provision is
to set right a patent defect or an error of jurisdiction
or law. There has to be a well-founded error, and it
may not be appropriate for the court to scrutinise the
orders, which, upon the face of it, bear a token of
careful consideration and appear to be in accordance
with the law. If one looks into the various judgments
of this Court, it emerges that the revisional
jurisdiction can be invoked where the decisions
under challenge are grossly erroneous, there is no
compliance with the provisions of law, the finding
recorded is based on no evidence, material evidence
is ignored or judicial discretion is exercised
arbitrarily or perversely. These are not exhaustive
classes but are merely indicative. Each case would
have to be determined on its own merits.
13. Another well-accepted norm is that the revisional
jurisdiction of the higher court is a very limited one and
cannot be exercised in a routine manner. One of the inbuilt
restrictions is that it should not be against an interim or
interlocutory order. The Court has to keep in mind that the
exercise of revisional jurisdiction itself should not lead to
injustice ex-facie. Where the Court is dealing with the
question as to whether the charge has been framed
properly and in accordance with law in a given case, it may
be reluctant to interfere in the exercise of its revisional
jurisdiction unless the case substantially falls within the
categories aforestated. Even framing of charge is a much-
advanced stage in the proceedings under the CrPC."
15. The present revision has to be decided as per the
parameters laid down by the Hon'ble Supreme Court.
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16. A perusal of the record shows that the learned Trial
Court had charged the accused with the commission of offences
punishable under Section 332 read with Section 34 of IPC. No
charge was framed against the accused for the commission of an
offence punishable under Section 353 of IPC. Learned Trial Court
never amended the charge to include Section 353. Therefore
learned Trial Court erred in convicting and sentencing the
accused of the commission of an offence punishable under
Section 353 of IPC for which no charge was framed. It was laid
down by this Court in Jeevo alias Jeevan Kumar vs. State of H.P.
2001 (1) Cur.L.J. 283 that a person cannot be convicted of the
commission of an offence for which he was never charged.
"16. The question which, therefore, arises is whether the
accused, who was not charged for the substantive offence
under section 307, Indian Penal Code, could be convicted
of the substantive offence under section 307, Indian Penal
Code. The answer to the question is to be found in Subran
alias Subramanian & Ors. v. State of Kerala, 1993 Cri. L.J. 1387.
17. In the said case the occurrence took place on 24.12.1986
in which one Suku succumbed to the injuries as a result of
the assault. Six persons were arrayed as accused for the
offences under sections 302,324,323,241, 148 read with
section 149, Indian Penal Code. Upon having been put a
trial, the trial court found accused No. 1 (Subran) guilty of
the offence under section 302, Indian Penal Code, and
sentenced him to suffer rigorous imprisonment for life.
The other five accused were found guilty of the offence
under section 326 read with section 149, Indian Penal Code
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and each one of them was sentenced to undergo rigorous
imprisonment for three years. In appeal, the High Court
affirmed the conviction and sentence of four accused
including that of accused No. 1 and acquitted two accused.
On further appeal before the Supreme Court, it was held
that the conviction of accused No. 1 for the substantive
offence under section 302, Indian Penal Code in the
absence of a specific charge, was bad. It was observed:-
"Since, appellant No.l Subran had not been charged
for the substantive offence of murder under section
302, IPC, even the trial court, which tried the six
accused persons, was not justified in recording a
conviction against him for the substantive offence of
murder punishable under section 302, IPC after
framing a charge against him for the offence under
Section 302 read with Section 149, IPC only. A person
charged for an offence under section 302, IPC read
with Section 149 cannot be convicted of the
substantive offence under Section 302, IPC without a
specific charge having been framed against him as
envisaged by law. Conviction for the substantive
offence in such a case is unjustified because an
accused might be misled in his defence by the
absence of the charge for the substantive offence
under Section 302 IPC. Appellant No. 1, Subran, was
never called upon to meet a charge under section
302, IPC smpliciter and, therefore, in defending
himself, he cannot be said to have been called upon
to meet that charge and he could very well have
considered it unnecessary to concentrate on that
part of the prosecution case during the cross
examination of the prosecution witnesses.
Therefore, the conviction of the first appellant for an
offence under Section ' 302 was not permissible."
18. The Supreme Court while acquitting accused No.l
(Subran) of the offence under Section 302, Indian Penal
Code, on the basis of evidence coming on record instead
convicted and sentenced him for the offence under Section
304 (I), Indian Penal Code.
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19. Following the above ratio, it can be safely held in the
present case that since the accused was never charged for
the substantive offence under section 307, Indian Penal
Code, he could not have been convicted for such offence.
His conviction for such offence is unwarranted and cannot
be sustained.
17. Hence, the part of the judgment of learned Trial Court
as affirmed by learned Appellate Court convicting the accused of
the commission of an offence punishable under Section 353 of
IPC and sentencing them for the commission of the aforesaid
offence is not sustainable and is liable to be set aside.
18. Informant Jaswant Singh (PW-1) stated that he and
Suresh Kumar were deputed as Driver and Conductor in a bus
bearing registration No.CH-01G-8165. The bus reached Palampur
at 9:10 am. He was about to leave for Chandigarh at 9:20 a.m.
when the Driver of the Anurag Bus along with 4-5 persons came
near his Bus. They gave him a beating and tore his shirt. When
Suresh Kumar, the conductor, tried to rescue him, he (Suresh
Kumar) was also beaten and his clothes & bag were torn. He and
Suresh Kumar were discharging their official duties. He identified
the accused as the persons who had given beatings to them.
19. The accused did not dispute the fact that the
informant was deputed as a Driver and Suresh Kumar was
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deputed as a Conductor in the Bus bearing registration No. CH-
01G-8165 in their statements recorded under Section 313 of CrPC.
Malkiat Singh (PW-5) proved the appointment and posting order
of the informant and Suresh Kumar. He also stated that the
informant was posted as a Driver and Suresh Kumar was posted
as a Conductor on the Bus. This part of his testimony was not
disputed by the accused and the learned Courts below had rightly
held that the informant was a Driver and Suresh Kumar was the
Conductor in the bus owned by Chandigarh Transport
Undertakings.
20. Section 21 of the Indian Penal Code defines the term
"public servant". Clause 12 (b) includes the persons in the service
or pay of a local authority, a corporation established under a
Central, Provincial or State Act or a Government Company as
defined in Section 617 of the Companies Act, 1956. Chandigarh
Transport Undertakings is a government corporation and its
employees will fall within the definition of public servant within
the meaning of Section 21. Therefore, Jaswant Singh and Suresh
Kumar would fall within the definition of public servants.
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21. The informant Jaswant Singh stated in his cross-
examination that there were 8-10 passengers on the bus. He
volunteered to say that the bus was full of passengers. Suresh
Kumar (PW-2) on the other hand stated that 2-3 passengers
were travelling in the bus and the bus was almost empty. It was
submitted that this is a major contradiction which made the
prosecution case highly doubtful. This submission is not
acceptable. The incident took place on 11.09.2001. The informant
and Suresh Kumar made statements before the Court on
18.07.2005, after the lapse of more than 4 years. The human
memory fails with the passage of time and it is difficult to
remember the incident in graphic detail. It was laid down by the
Hon'ble Supreme Court in Goverdhan Vs. State of Chhattisgarh
(2025) SCC Online SC 69 that the discrepancies are not sufficient
to discard the prosecution case unless they are material. It was
observed:-
"51. As we proceed to examine this crucial aspect, it may
be apposite to keep in mind certain observations made by
this Court relating to discrepancies in the account of
eyewitnesses.
In Leela Ram (Dead) through Duli Chand v. State of
Haryana, (1999) 9 SCC 525 it was observed as follows:
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"9. Be it noted that the High Court is within its
jurisdiction being the first appellate court to
reappraise the evidence, but the discrepancies found
in the ocular account of two witnesses unless they
are so vital, cannot affect the credibility of the
evidence of the witnesses. There are bound to be
some discrepancies between the narrations of
different witnesses when they speak on details, and
unless the contradictions are of a material
dimension, the same should not be used to jettison
the evidence in its entirety. Incidentally,
corroboration of evidence with mathematical
niceties cannot be expected in criminal cases. Minor
embellishment, there may be, but variations by
reason therefore should not render the evidence of
eyewitnesses unbelievable. Trivial discrepancies
ought not to obliterate an otherwise acceptable
evidence. In this context, reference may be made to
the decision of this Court in State of U.P. v. M.K.
Anthony [(1985) 1 SCC 505: 1985 SCC (Cri) 105]. In para
10 of the Report, this Court observed : (SCC pp. 514-
15)
'10. While appreciating the evidence of a
witness, the approach must be whether the
evidence of the witness read as a whole
appears to have a ring of truth. Once that
impression is formed, it is undoubtedly
necessary for the court to scrutinise the
evidence more particularly keeping in view the
deficiencies, drawbacks and infirmities
pointed out in the evidence as a whole and
evaluate them to find out whether it is against
the 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. Minor discrepancies on trivial
matters not touching the core of the case,
hypertechnical approach by taking sentences
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torn out of context here or there from the
evidence, attaching importance to some
technical error committed by the investigating
officer not going to the root of the matter
would not ordinarily permit rejection of the
evidence as a whole. If the court before whom
the witness gives evidence had the opportunity
to form the opinion about the general tenor of
evidence given by the witness, the appellate
court which had not this benefit will have to
attach due weight to the appreciation of
evidence by the trial court and unless there are
reasons weighty and formidable it would not
be proper to reject the evidence on the ground
of minor variations or infirmities in the matter
of trivial details. Even honest and truthful
witnesses may differ in some details unrelated
to the main incident because power of
observation, retention and reproduction differ
with individuals.'
10. In a very recent decision in Rammi v. State of
M.P. [(1999) 8 SCC 649 : 2000 SCC (Cri) 26] this Court
observed : (SCC p. 656, para 24)
'24. When an eyewitness is examined at length it is
quite possible for him to make some discrepancies.
No true witness can possibly escape from making
some discrepant details. Perhaps an untrue witness
who is well tutored can successfully make his
testimony totally non-discrepant. But courts should
bear in mind that it is only when discrepancies in the
evidence of a witness are so incompatible with the
credibility of his version that the court is justified in
jettisoning his evidence. But too serious a view to be
adopted on mere variations falling in the narration
of an incident (either as between the evidence of two
witnesses or as between two statements of the same
witness) is an unrealistic approach for judicial
scrutiny.'
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This Court further observed : (SCC pp. 656-57, paras 25-
27)
'25. It is a common practice in trial courts to make
out contradictions from the previous statement of a
witness for confronting him during cross-
examination. Merely because there is inconsistency
in evidence it is not sufficient to impair the credit of
the witness. No doubt Section 155 of the Evidence Act
provides scope for impeaching the credit of a witness
by proof of an inconsistent former statement. But a
reading of the section would indicate that all
inconsistent statements are not sufficient to
impeach the credit of the witness. The material
portion of the section is extracted below:
"155. Impeaching credit of witness.--The credit
of a witness may be impeached in the following
ways by the adverse party, or, with the consent of
the court, by the party who calls him--
(1)-(2) ***
(3) by proof of former statements inconsistent
with any part of his evidence which is liable to be
contradicted;"
26. A former statement though seemingly
inconsistent with the evidence need not necessarily
be sufficient to amount to contradiction. Only such
of the inconsistent statement which is liable to be
"contradicted" would affect the credit of the
witness. Section 145 of the Evidence Act also enables
the cross-examiner to use any former statement of
the witness, but it cautions that if it is intended to
"contradict" the witness the cross-examiner is
enjoined to comply with the formality prescribed
therein. Section 162 of the Code also permits the
cross-examiner to use the previous statement of the
witness (recorded under Section 161 of the Code) for
the only limited purpose i.e. to "contradict" the
witness.
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27. To contradict a witness, therefore, must be to
discredit the particular version of the witness. Unless
the former statement has the potency to discredit
the present statement, even if the latter is at
variance with the former to some extent it would not
be helpful to contradict that witness (vide Tahsildar
Singh v. State of U.P. [AIR 1959 SC 1012: 1959 Cri LJ
1231]).'"
52. Further, this Court also cautioned about attaching too
much importance on minor discrepancies of the evidence
of the witnesses in Bharwada Bhoginbhai Hirjibhai v. State
of Gujarat (1983) 3 SCC 217 as follows:
"5. ... We do not consider it appropriate or permissible
to enter upon a reappraisal or reappreciation of the
evidence in the context of the minor discrepancies
painstakingly highlighted by the learned counsel for
the appellant. Overmuch importance cannot be
attached to minor discrepancies. The reasons are
obvious:
(1) 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 video tape is
replayed on the mental screen.
(2) 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. The mental faculties therefore
cannot be expected to be attuned to absorb the
details.
(3) The powers of observation differ from person to
person. What one may notice, another may not. An
object or movement might emboss its image on one
person's mind, whereas it might go unnoticed on
the part of another.
(4) By and large people cannot accurately recall a
conversation and reproduce the very words used by
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them 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.
(5) In regard to exact time of an incident, or the time
duration of an occurrence, usually, people make
their estimates by guess work on the spur of the
moment at the time of interrogation. And one
cannot expect people to make very precise or
reliable estimates in such matters. Again, it depends
on the time-sense of individuals which varies from
person to person.
(6) Ordinarily a witness cannot be expected to recall
accurately the sequence of events which takes place
in rapid succession or in a short time span. A witness
is liable to get confused, or mixed up when
interrogated later on.
(7) A witness, though wholly truthful, is liable to be
overawed by the court atmosphere and the piercing
cross-examination made by the counsel and out of
nervousness mix up facts, get confused regarding
sequence of events, or fill up details from
imagination on the spur of the moment. The
subconscious mind of the witness sometimes so
operates on account of the fear of looking foolish or
being disbelieved though the witness is giving a
truthful and honest account of the occurrence
witnessed by him--perhaps it is a sort of a
psychological defence mechanism activated on the
spur of the moment."
53. To the same effect it was also observed
in Appabhai v. State of Gujarat 1988 Supp SCC 241 as follows:
"13. ... The court while appreciating the evidence
must not attach undue importance to minor
discrepancies. The discrepancies which do not shake
the basic version of the prosecution case may be
discarded. The discrepancies which are due to
normal errors of perception or observation should
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not be given importance. The errors due to lapse of
memory may be given due allowance. The court by
calling into aid its vast experience of men and
matters in different cases must evaluate the entire
material on record by excluding the exaggerated
version given by any witness. When a doubt arises in
respect of certain facts alleged by such witness, the
proper course is to ignore that fact only unless it
goes into the root of the matter so as to demolish the
entire prosecution story. The witnesses nowadays go
on adding embellishments to their version perhaps
for the fear of their testimony being rejected by the
court. The courts, however, should not disbelieve the
evidence of such witnesses altogether if they are
otherwise trustworthy. Jaganmohan Reddy, J.
speaking for this Court in Sohrab v. State of
M.P. [(1972) 3 SCC 751 : 1972 SCC (Cri) 819] observed :
[SCC p. 756, para 8 : SCC (Cri) p. 824, para 8]
‘8. … This Court has held that falsus in uno,
falsus in omnibus is not a sound rule for the
reason that hardly one comes across a witness
whose evidence does not contain a grain of
untruth or at any rate exaggeration,
embroideries or embellishments. In most
cases, the witnesses when asked about details
venture to give some answer, not necessarily
true or relevant for fear that their evidence
may not be accepted in respect of the main
incident which they have witnessed but that is
not to say that their evidence as to the salient
features of the case after cautious scrutiny
cannot be considered….'”
22. In the present case, the contradiction relates to the
detail surrounding the incident and does not affect the core of the
P a g e | 22
2025:HHC:9276prosecution case. Hence the same cannot be used to discard the
same.
23. Informant Jaswant Singh admitted in his cross-
examination that many people were present on the spot. Suresh
Kumar (PW-2) also admitted that many buses of HRTC and
private buses were parked in the bus stand and many persons
were present in the Bus Stand. It was submitted that the
prosecution had not associated any passenger of the bus or any
person present on the spot; therefore, the prosecution case is to
be discarded due to the non-examination of the independent
person. This submission is also not acceptable. It was laid down
by the Hon’ble Supreme Court in Appabhai v. State of Gujarat, 1988
Supp SCC 241: 1988 SCC (Cri) 559 that the prosecution case cannot
be doubted due to the non-examination of the independent
witnesses. It was observed at page 245:
“11. In light of these principles, we may now consider the
first contention urged by the learned counsel for the
appellants. The contention relates to the failure of the
prosecution to examine independent witnesses. The High
Court has examined this contention but did not find any
infirmity in the investigation. It is no doubt true that the
prosecution has not been able to produce any independent
witness to the incident that took place at the bus stand.
There must have been several such witnesses. But the
prosecution case cannot be thrown out or doubted on that
P a g e | 23
2025:HHC:9276ground alone. The experience reminds us that civilized
people are generally insensitive when a crime is
committed even in their presence. They withdraw both
from the victim and the vigilante. They keep themselves
away from the court unless it is inevitable. They think that
a crime like a civil dispute is between two individuals or
parties and they should not involve themselves. This kind
of apathy of the general public is indeed unfortunate, but
it is there everywhere whether in village life, towns or
cities. One cannot ignore this handicap with which the
investigating agency has to discharge its duties. The court,
therefore, instead of doubting the prosecution case for
want of independent witness must consider the broad
spectrum of the prosecution version and then search for
the nugget of truth with due regard to probability if any,
suggested by the accused.”
24. It was laid down by Hon’ble Supreme Court in Pohlu v.
State of Haryana, (2005) 10 SCC 196 : 2005 SCC (Cri) 1496 : 2004
SCC OnLine SC 1393 , that the intrinsic worth of the testimony of
witnesses has to be assessed by the Court and if the testimony of
the witnesses appears to be truthful, the non-examination of
other witnesses will not make the testimony doubtful. It was
observed at page 199: –
“10. It was then submitted that some of the material
witnesses were not examined and, in this connection, it
was argued that two of the eye-witnesses named in the
FIR, namely, Chander and Sita Ram were not examined by
the prosecution. Dharamvir, son of Sukhdei was also not
examined by the prosecution though he was a material
witness, being an injured eyewitness, having witnessed
the assault that took place in the house of Sukhdei PW 2. It
is true that it is not necessary for the prosecution to
P a g e | 24
2025:HHC:9276multiply witnesses if it prefers to rely upon the evidence of
eyewitnesses examined by it, which it considers sufficient
to prove the case of the prosecution. However, the
intrinsic worth of the testimony of the witnesses
examined by the prosecution has to be assessed by the
Court. If their evidence appears to be truthful, reliable and
acceptable, the mere fact that some other witnesses have
not been examined, will not adversely affect the case of
the prosecution. We have, therefore, to examine the
evidence of the two eye witnesses namely, PW 1 and PW 2,
and to find whether their evidence is true, on the basis of
which the conviction of the appellants can be sustained. ”
25. It was laid down by the Hon’ble Supreme Court in
Srichand K. Khetwani v. State of Maharashtra, 1966 SCC OnLine SC
32 : (1967) 1 SCR 595: AIR 1967 SC 450: 1967 Cri LJ 414 : (1967) 2 SCJ
178, that an adverse inference can be drawn for withholding
certain evidence and not for failure to obtain the evidence. It was
observed
“8. Further, an adverse inference against the
prosecution can be drawn only if it withholds certain
evidence and not merely on account of its failure to
obtain certain evidence. When no such evidence has
been obtained, it cannot be said what that evidence
could have been and therefore no question of
presuming that that evidence would have been
against the prosecution, under Section 114,
illustration (g) of the Evidence Act, can arise.”
26. In the present case the passengers would have been in
a hurry to leave for their destination and the offices as it was a
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2025:HHC:9276
morning rush hour, therefore, non-examination of the
passengers cannot be used to discard the prosecution case.
27. The informant stated in his cross-examination that
he did not know the names of the accused. He voluntarily said
that he knew the name of one person on the date of deposition.
Suresh Kumar (PW-2) also stated that he did not know the names
of the passengers at the time of the incident. It was submitted
that since the informant and Suresh Kumar were not aware of the
names of the passengers, therefore, the mention of the name of
the accused in the statement (Ex. PW-1/A) makes the prosecution
case suspect. This submission is also not acceptable. It was
mentioned in the statement (Ex. PW-1/A) that the names of the
Driver and Conductor of Anurag Bus were found to be Ajay Kumar
and Devi Singh. This shows that the names were revealed to the
informant by some other persons and his statement on oath that
he did not know the names of the accused on the date of the
incident is correct. He never claimed in the FIR that the names of
the accused were known to him, rather he claimed that the names
were revealed to him.
P a g e | 26
2025:HHC:9276
28. It was suggested to the informant that he did not start
the bus at the allotted time, the employees of HRTC and the
private bus owner requested him to take the bus out of the bus
stand after which he abused and gave them beatings. He denied
these suggestions. These suggestions show that the incident is
not disputed and only the manner of the incident has been
disputed by the defence. It was laid down by the Hon’ble Supreme
Court in Balu Sudam Khalde v. State of Maharashtra, (2023) 13 SCC
365: 2023 SCC OnLine SC 355 that the suggestion put to the
witness can be taken into consideration while determining the
innocence or guilt of the accused. It was observed at page 382:-
“34. According to the learned counsel, such suggestions
could be a part of the defence strategy to impeach the
credibility of the witness. The proof of guilt required of the
prosecution does not depend on the satisfaction made to a
witness.
35. In Tarun Bora v. State of Assam [Tarun Bora v. State of
Assam, (2002) 7 SCC 39: 2002 SCC (Cri) 1568], a three-judge
Bench of this Court was dealing with an appeal against the
order passed by the Designated Court, Guwahati, in TADA
Sessions case wherein the appellant was convicted under
Section 365IPC read with Sections 3(1) and 3(5) of the
Terrorist and Disruptive Activities (Prevention) Act, 1987.
36. In Tarun Bora case [Tarun Bora v. State of Assam, (2002)
7 SCC 39: 2002 SCC (Cri) 1568], this Court, while
considering the evidence on record, took note of a
suggestion which was put to one of the witnesses and
considering the reply given by the witness to the
P a g e | 27
2025:HHC:9276suggestion put by the accused, arrived at the conclusion
that the presence of the accused was admitted. We quote
with profit the following observations made by this Court
in paras 15, 16 and 17, respectively, as under : (Tarun Bora
case [Tarun Bora v. State of Assam, (2002) 7 SCC 39: 2002
SCC (Cri) 1568], SCC pp. 43-44)
“15. The witness further stated that during the assault,
the assailant accused him of giving information to the
army about the United Liberation Front of Assam
(ULFA). He further stated that on the third night, he
was carried away blindfolded on a bicycle to a different
place, and when his eyes were unfolded, he could see
his younger brother Kumud Kakati (PW 2) and his wife
Smt Prema Kakati (PW 3). The place was Duliapather,
which is about 6-7 km away from his Village Sakrahi.
The witness identified the appellant, Tarun Bora, and
stated that it is he who took him in an Ambassador car
from the residence of Nandeswar Bora on the date of
the incident.
16. In cross-examination, the witness stated as under:
‘Accused Tarun Bora did not blind my eyes, nor he
assaulted me.’
17. This part of the cross-examination is suggestive of
the presence of accused Tarun Bora in the whole
episode. This will clearly suggest the presence of the
accused, Tarun Bora, as admitted. The only denial is
that the accused did not participate in blind-folding the
eyes of the witness nor assaulted him.”
37. In Rakesh Kumar v. State of Haryana [Rakesh
Kumar v. State of Haryana, (1987) 2 SCC 34: 1987 SCC (Cri)
256], this Court was dealing with an appeal against the
judgment of the High Court affirming the order of the
Sessions Judge whereby the appellant and three other
persons were convicted under Section 302 read with
Section 34IPC. While reappreciating the evidence on
record, this Court noticed that in the cross-examination of
PW 4 Sube Singh, a suggestion was made with regard to
P a g e | 28
2025:HHC:9276
the colour of the shirt worn by one of the accused persons
at the time of the incident. This Court, taking into
consideration the nature of the suggestion put by the
defence and the reply, arrived at the conclusion that the
presence of the accused, namely, Dharam Vir, was
established on the spot at the time of occurrence. We quote
the following observations made by this Court in paras 8
and 9, respectively, as under (SCC p. 36)
“8. PW 3, Bhagat Singh, stated in his examination-in-
chief that he had identified the accused at the time of
occurrence. But curiously enough, he was not cross-
examined as to how and in what manner he could
identify the accused, as pointed out by the learned
Sessions Judge. No suggestion was also given to him
that the place was dark and that it was not possible to
identify the assailants of the deceased.
9. In his cross-examination, PW 4 Sube Singh stated
that the accused, Dharam Vir, was wearing a shirt of
white colour. It was suggested to him on behalf of the
accused that Dharam Vir was wearing a shirt of cream
colour. In answer to that suggestion, PW 4 said it is not
correct that Dharam Vir, the accused, was wearing a
shirt of a cream colour and not a white colour at that
time.’ The learned Sessions Judge has rightly observed
that the above suggestion at least proves the presence
of accused Dharam Vir on the spot at the time of
occurrence.”
38. Thus, from the above, it is evident that the suggestion
made by the defence counsel to a witness in the cross-
examination, if found to be incriminating in nature in any
manner, would definitely bind the accused, and the
accused cannot get away on the plea that his counsel had
no implied authority to make suggestions in the nature of
admissions against his client.
39. Any concession or admission of a fact by a defence
counsel would definitely be binding on his client, except
the concession on the point of law. As a legal proposition,
P a g e | 29
2025:HHC:9276
we cannot agree with the submission canvassed on behalf
of the appellants that an answer by a witness to a
suggestion made by the defence counsel in the cross-
examination does not deserve any value or utility if it
incriminates the accused in any manner.”
29. The testimony of the informant is corroborated by
Murli Ram (PW-6). He stated that he was present at the Bus
Stand on 11.09.2001 at 9:20 am when a bus of CTU reached the
bus stand. The informant was driving the bus and Suresh Kumar
was the Conductor in it. Anurag Bus also arrived at the bus stand.
He heard some noise and went to the stop with Jasmir. He found
that the driver of CTU was lying on the ground. The driver and
Conductor of Anurag Bus were beating the driver of CTU. He
identified Devi Singh as the person, who was beating the
informant. He rescued the informant from the accused. He denied
in his cross-examination that 3-4 buses of Anurag Bus Service
were present on the spot. An argument was taking place at the
time of his arrival. He was not aware that the CTU Bus was
supposed to leave at 9:30 am. He admitted that the drivers of
HRTC and private bus had asked the informant to leave on time.
He corrected to say that the employees of HRTC had not asked
him to do so. He denied that the accused had not given any
beatings to the informant.
P a g e | 30
2025:HHC:9276
30. His statement corroborates the testimony of the
informant in material particulars. He has identified one of the
accused Devi Singh as the assailant. There is nothing in his cross-
examination to show that he was making a false statement. He is
an employee of HRTC and as per the defence the employee of the
HRTC had asked the informant to take the bus on time, therefore,
he has no affinity with the informant. Hence, the learned Courts
below had rightly relied upon his testimony.
31. It was laid down by the Hon’ble Supreme Court in
Goverdhan (supra) that the Appellate Court should not interfere
with the findings regarding the credibility of the witnesses
recorded by the learned Trial Court unless there is some illegality
in it. It was observed: –
“83. The trial court after recording the testimony of the
PW-10 and on consideration of the same found her
evidence trustworthy and credible. We see no reason to
question the assessment about the credibility of the
witness by the Trial Court which had the advantage of
seeing and hearing above the witness and all other
witnesses. Nothing has been brought to our notice of any
serious illegality or breach of fundamental law so as to
warrant taking a different view of the evidence of PW-10.
In this regard we may keep in mind the valuable
observations made by this Court in Jagdish
Singh v. Madhuri Devi, (2008) 10 SCC 497 in the following
words:
P a g e | 31
2025:HHC:9276“28. At the same time, however, the appellate court
is expected, nay bound, to bear in mind a finding
recorded by the trial court on oral evidence. It should
not forget that the trial court had an advantage and
opportunity of seeing the demeanour of witnesses
and, hence, the trial court’s conclusions should not
normally be disturbed. No doubt, the appellate court
possesses the same powers as that of the original
court, but they have to be exercised with proper care,
caution and circumspection. When a finding of fact
has been recorded by the trial court mainly on
appreciation of oral evidence, it should not be lightly
disturbed unless the approach of the trial court in
appraisal of evidence is erroneous, contrary to well-
established principles of law or unreasonable.
29. …………………………………..
30. In Sara Veeraswami v. Talluri Narayya [(1947-48)
75 IA 252 : AIR 1949 PC 32] the Judicial Committee of
the Privy Council, after referring to relevant
decisions on the point, stated [Quoting from
Watt v. Thomas, [1947] 1 All ER 582, pp. 583 H-584 A.]
: (IA p. 255)
“… but if the evidence as a whole can
reasonably be regarded as justifying the
conclusion arrived at the trial, and especially if
that conclusion has been arrived at on
conflicting testimony by a tribunal which saw
and heard the witnesses, the appellate court
will bear in mind that it has not enjoyed this
opportunity and that the view of the trial Judge
as to where credibility lies is entitled to great
weight. This is not to say that the Judge of the
first instance can be treated as infallible in
determining which side is telling the truth or is
refraining from exaggeration. Like other
tribunals, he may go wrong on a question of
fact, but it is a cogent circumstance that a
P a g e | 32
2025:HHC:9276
Judge of first instance, when estimating the
value of verbal testimony, has the advantage
(which is denied to courts of appeal) of having
the witnesses before him and observing the
manner in which their evidence is given.”
32. Dr Mrs P. Singh conducted the medical examination
of the informant and found a simple injury which could have
been caused by a blunt weapon within 12 hours of examination.
She admitted in her cross-examination that the injury noticed by
her could have been caused by a fall. It is merely an alternative
possibility and does not make the prosecution case doubtful.
33. HC Jai Chand conducted the investigation, he
recovered the torn shirts, undervest and hair of the beard. These
recoveries corroborated the version of the informant and Suresh
Kumar regarding the beatings given to them, their clothes
getting torn and the accused pulling at the informant’s beard.
34. It was submitted that the accused had not given the
beatings to prevent or deter the public servant from discharging
their duties or in consequence of anything done or attempted to
be done by them. This submission is not acceptable. Section 332
of IPC reads as under:
332. Voluntarily causing hurt to deter public servant
from his duty.–Whoever voluntarily causes hurt to
P a g e | 33
2025:HHC:9276any person being a public servant in the discharge of
his duty as such public servant, or with intent to
prevent or deter that person or any other public
servant from discharging his duty as such public
servant, or in consequence of anything done or
attempted to be done by that person in the lawful
discharge of his duty as such public servant, shall be
punished with imprisonment of either description for
a term which may extend to three years, or with fine,
or with both.
35. It is apparent from the bare perusal of the Section that
if any hurt is caused to a public servant in the discharge of his
official duties, the Section is attracted. In the present case, the
accused admitted in their statements recorded under Section 313
of CrPC that the informant and Suresh Kumar were discharging
their duties on the date of the incident. Testimonies of the
prosecution’s witnesses proved that the accused had caused hurt
to him in the discharge of their official duties. Hence, Section 332
of IPC is established on record. The judgment in D Chattaiah
(supra) does not apply to the present case because in the said case
the incident had occurred due to a private dispute between the
parties which is not the case here.
36. The judgment in Mekala Sivaiah (supra) deals with the
powers of the Hon’ble Supreme Court while exercising
jurisdiction under Section 136 of the Constitution of India which
P a g e | 34
2025:HHC:9276
is not the question in the present case. Hence, this judgment will
not assist the accused. In Bala Sahib Nirvriti (Supra), the incident
was not connected to the discharge of duties and the accused had
questioned the complainant about lodging some complaint. In
Parminder Kumar (supra) the Court had found the testimonies
were not reliable. In the present case, it has already been held the
testimonies are reliable. Therefore, the cited judgments do not
apply to the present case.
37. It was submitted that the benefit of the Probation of
Offenders Act was not granted to the accused and such a benefit
should have been extended to them. This submission is not
acceptable. It was laid down by the Hon’ble Supreme Court in
Siyasaran v. State of M.P., 1994 SCC OnLine SC 4: 1995 Cri LJ 2126
that the benefit of Probation of Offenders Act cannot be granted
to a person convicted of using force on a Government servant.
Therefore, the learned Courts below did not err in not extending
the benefit of the Probation of Offenders Act to the accused.
38. No other point was urged.
39. Therefore, the judgment passed by learned Trial Court
is partly sustainable. Hence, the appeal is partly allowed and the
P a g e | 35
2025:HHC:9276
judgment and order passed by learned Trial Court as affirmed by
learned Appellate Court convicting the accused of the
commission of an offence punishable under Section 353 of IPC
and sentencing them for the commission of the aforesaid offence
is ordered to be set aside, whereas the judgment and order passed
by learned Trial Court as affirmed by learned Appellate Court
convicting and sentencing the accused of the commission of an
offence punishable under Section 332 of IPC is upheld.
40. The present revision stands disposed of so also the
pending applications, if any.
(Rakesh Kainthla)
Judge
7th April, 2025
(Ritu)
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