Himachal Pradesh High Court
Moti Ram vs State Of H.P on 26 June, 2025
( 2025:HHC:20444 )
THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 77 of 2024
.
Reserved on: 06.05.2025
Date of Decision: 26.06.2025.
Moti Ram ...Petitioner
Versus
State of H.P.
Coram
r to ...Respondent
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the Petitioner : Mr. P.K. Verma, Advocate.
For the Respondent/State: Mr. Prashant Sen, Deputy Advocate
General.
Rakesh Kainthla, Judge
The present revision is directed against the judgment
dated 02.01.2024, passed by learned Additional Sessions Judge,
Chamba, District Chamba (learned Appellate Court), vide which
the judgment of conviction dated 30.12.2022 and order of
sentence dated 05.01.2023, passed by learned Judicial Magistrate
First Class, Tissa, District Chamba, H.P. (learned Trial Court)
were upheld. (The parties shall hereinafter be referred to in the
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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same manner in which they were arrayed before the learned Trial
Court for convenience.)
.
2. Briefly stated, the facts giving rise to the present
revision are that the police presented a challan against the
accused before the learned Trial Court for the commission of
offences punishable under Sections 341, 323, 355 & 504 of the
Indian Penal Code (in short “IPC“). It was asserted that the
informant/victim, Kishni Devi (PW1), was returning to her home
on 12.09.2013 at about 08:30 A.M. When she reached near Bada at
about 09:00 A.M., the accused, Moti Ram, obstructed her and
told her that she wanted more land, and he would give her more
land. He started abusing the informant. The informant asked the
accused not to abuse her. The accused became infuriated and
started beating the informant with his fist and kicks. He pushed
her to the ground and took out a pair of scissors from his jacket.
He cut her braid with the scissors. She sustained injuries to her
head, arm and other parts of her body. She raised an alarm for
help, but no one came to the spot. She narrated the incident to
her husband, Roshan Lal (PW2). They visited the police station
and reported the matter to the police, where an FIR (Ex-PW1/A)
was registered. SI Jagdish Chand (PW5) conducted the
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investigation. He filed an application (Ex-PW4/A) for
conducting the medical examination of the victim. Dr. Chandan
.
Verma (PW4) conducted the victim’s medical examination and
found injuries on her head and face. He issued the MLC
(Ex.PW4/B). The victim, Kishni Devi, produced her braid, which
was put in a cloth parcel. The parcel was sealed with three
impressions of seal “H” and was seized vide memo (Ex-PW1/B).
Seal impression (Ex.PW5/A) was taken on a separate piece of
cloth. The accused produced the scissors used by him for cutting
the victim’s braid. It was put in a cloth parcel and the parcel was
sealed with three impressions of seal “S”. A seal impression
(Ex-PW5/B) was taken on a separate piece of cloth, and the
parcel was seized vide memo (Ex-PW1/C). The braid, sample
hairs and scissors were sent to FSL. The result (Ex-PZ) was
issued, in which it was mentioned that the braid produced by the
victim and the sample hairs were human hair, which were
similar to each other. The test cut pattern made with the scissors
was comparable to the cut pattern found on the braid produced
by the victim. The site plan (Ex-PW5/C) was prepared. The
statements of witnesses were recorded as per their version, and
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after the completion of the investigation, the challan was
prepared and presented before the learned Trial Court.
.
3. Learned Trial Court charged the accused with the
commission of offences punishable under Sections 341, 323, 355
and 504 of IPC, to which he pleaded not guilty and claimed to be
tried.
4.
The prosecution examined seven witnesses to prove
its case. Kishni Devi (PW1) is the informant/victim. Roshan Lal
(PW2) is her husband to whom the incident was narrated. Brij
Lal (PW3) is the witness to recovery; however, he did not
support the prosecution’s case. Dr. Chandan Verma (PW4)
conducted the victim’s medical examination. SI Jagdish Chand
(PW5) conducted the investigation. ASI Hakam Singh (PW6) was
working as MHC with whom the case property was deposited.
Naresh Kumar (PW7) carried the case property to RFSL,
Dharamshala.
5. The accused in his statement recorded under Section
313 of the Cr.PC denied the prosecution’s case in its entirety. He
claimed that he is innocent and was falsely implicated. No
defence was sought to be adduced by the accused.
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6. Learned Trial Court held that the testimony of the
victim was duly corroborated by her husband to whom the
.
incident was narrated, the medical evidence and the report of
RFSL. She had sustained injuries, and her testimony could not be
doubted because of the land dispute between the parties. The
incident had taken place at a lonely place and was not witnessed
by any person. The sole testimony of the injured victim can be
relied upon. The accused obstructed the victim when she was
going to her home. He gave her beatings and cut her hair;
therefore, the offences punishable under Section 323, 341 and
355 of the IPC were duly proved. However, the actual words used
by the accused were not mentioned, and the offence punishable
under Section 504 of the IPC was not proved. Hence, the learned
Trial Court convicted and sentenced the accused as under: –
Offence Sentence awarded
Section 355 of the Indian One-year rigorous imprisonment
Penal Code and a fine of ₹5,000/-. In default of
payment of the fine, he shall
undergo simple imprisonment for
one month.
Section 323 of the Indian Six months’ rigorous imprisonment.
Penal Code
Section 341 of the Indian One month rigorous imprisonment.
Penal Code
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7. Being aggrieved by the judgment and order passed by
the learned Trial Court, the accused preferred an appeal which
.
was decided by the learned Additional Sessions Judge, Chamba
(learned Appellate Court). Learned Appellate Court concurred
with the findings recorded by the learned Trial Court that the
testimony of the victim was reliable. The incident had taken
place at a lonely place and was not witnessed by any person;
therefore, the non-examination of any independent person is
not material. The testimony of the victim was duly corroborated
by the medical evidence and the report of the RFSL,
Dharamshala. The enmity is a double-edged weapon and is not
sufficient to discard the prosecution’s case. However, the
learned Trial Court erred in imposing the rigorous
imprisonment for the commission of the offence under Section
341 of the IPC, and only a simple imprisonment could have been
imposed. Hence, the learned Appellate Court modified the
sentence and changed the nature of the imprisonment from
rigorous to simple.
8. Being aggrieved by the judgment and order passed by
the learned Courts below, the accused has filed the present
revision, asserting that the learned Courts below decided the
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matter in a cursory manner. There was no evidence against the
accused; therefore, it was prayed that the present revision be
.
allowed, and the judgments and order passed by the learned
Courts below be set aside.
9. I have heard Mr. P.K. Verma, learned counsel, for the
petitioner and Mr. Prashant Sen, learned Deputy Advocate
General, for the respondent-State.
10. Mr. P. K. Verma, learned counsel, for the
petitioner/accused, submitted that the learned Courts below
erred in convicting and sentencing the accused. The testimony
of the victim was not corroborated by any independent person.
Her version was inherently improbable because of material
discrepancies in it. There was a land dispute between the victim
and the accused, and her testimony should not have been
accepted at its face value. Learned Courts below erred in relying
upon the uncorroborated testimony of the victim. The
judgments and order passed by learned Courts below are
perverse, and this Court can interfere with them while deciding
the revision. Therefore, he prayed that the present petition be
allowed and the judgments and order passed by learned Courts
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below be set aside. He relied upon the judgment of the Hon’ble
Supreme Court in Gamini Bala Koteswar Rao & Anr. Vs. State of
.
A.P. 2009 (10) SCC 636] in support of his submission.
11. Mr. Prashant Sen, learned Deputy Advocate General,
for the respondent-State, submitted that the learned Courts
below had rightly appreciated the evidence. There is no
perversity in the judgments and order passed by them. The
testimony of the victim was duly corroborated by the medical
evidence and the report of RFSL. The learned Courts below had
rightly accepted the testimony of the victim. This Court should
not interfere with the concurrent findings of fact while deciding
a revision; therefore, 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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( 2025:HHC:20444 )defect, errors of jurisdiction or the law. It was observed at 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 adetailed 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 ofinterference 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, sentenceor 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 individualcases. 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 thosefindings.
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
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( 2025:HHC:20444 )to the judgment of this court in Amit Kapoor v. Ramesh
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 ororder 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 scrutinisethe 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 therevisional 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 isexercised 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 aninterim 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.”
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15. It was held in Kishan Rao v. Shankargouda, (2018) 8
SCC 165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC
.
OnLine SC 651 that it is impermissible for the High Court to
reappreciate the evidence and come to its conclusions in the
absence of any perversity. It was observed at page 169:
“12. This Court has time and again examined the scope of
Sections 397/401 CrPC and the ground for exercising therevisional jurisdiction by the High Court. In State of
Kerala v. Puttumana Illath Jathavedan Namboodiri [State of
Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2SCC 452: 1999 SCC (Cri) 275], while considering the scope
of the revisional jurisdiction of the High Court, this Court
has laid down the following: (SCC pp. 454-55, para 5)
“5. … In its revisional jurisdiction, the High Court can
call for and examine the record of any proceedings forthe purpose of satisfying itself as to the correctness,
legality or propriety of any finding, sentence or order.
In other words, the jurisdiction is one of supervisoryjurisdiction exercised by the High Court for correcting
a miscarriage of justice. But the said revisional powercannot be equated with the power of an appellate
court, nor can it be treated even as a second appellatejurisdiction. Ordinarily, therefore, it would not be
appropriate for the High Court to reappreciate the
evidence and come to its own conclusion on the same
when the evidence has already been appreciated by the
Magistrate as well as the Sessions Judge in appeal
unless any glaring feature is brought to the notice of
the High Court which would otherwise tantamount to
a gross miscarriage of justice. On scrutinising the
impugned judgment of the High Court from the
aforesaid standpoint, we have no hesitation in coming
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( 2025:HHC:20444 )jurisdiction in interfering with the conviction of the
respondent by reappreciating the oral evidence. …”
13. Another judgment which has also been referred to and
.
relied on by the High Court is the judgment of this Court
in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao
Phalke [Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao
Phalke, (2015) 3 SCC 123: (2015) 2 SCC (Cri) 19]. This Court
held that the High Court, in the exercise of revisional
jurisdiction, shall not interfere with the order of the
Magistrate unless it is perverse or wholly unreasonable or
there is non-consideration of any relevant material, the
order cannot be set aside merely on the ground that
another view is possible. The following has been laid
down in para 14: (SCC p. 135)
“14. … Unless the order passed by the Magistrate is
perverse or the view taken by the court is wholly
unreasonable or there is non-consideration of any
relevant material or there is palpable misreading of
records, the Revisional Court is not justified in setting
aside the order, merely because another view is
possible. The Revisional Court is not meant to act as an
appellate court. The whole purpose of the revisional
jurisdiction is to preserve the power in the court to do
justice in accordance with the principles of criminal
jurisprudence. The revisional power of the court under
Sections 397 to 401 CrPC is not to be equated with that
of an appeal. Unless the finding of the court, whose
decision is sought to be revised, is shown to be
perverse or untenable in law or is grossly erroneous or
glaringly unreasonable or where the decision is based
on no material or where the material facts are wholly
ignored or where the judicial discretion is exercised
arbitrarily or capriciously, the courts may not interfere
with the decision in exercise of their revisional
jurisdiction.”
14. In the above case, also conviction of the accused was
recorded, and the High Court set aside [Dattatray Gulabrao
Phalke v. Sanjaysinh Ramrao Chavan, 2013 SCC OnLine Bom
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1753] the order of conviction by substituting its own view.
This Court set aside the High Court’s order holding that
the High Court exceeded its jurisdiction in substituting its
.
views, and that too without any legal basis.
16. This position was reiterated in Bir Singh v. Mukesh
Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ)
309: 2019 SCC OnLine SC 13, wherein it was observed at page 205:
“16. It is well settled that in exercise of revisional
jurisdiction under Section 482 of the Criminal Procedure
Code, the High Court does not, in the absence of
perversity, upset concurrent factual findings. It is not for
the Revisional Court to re-analyse and re-interpret theevidence on record.
17. As held by this Court in Southern Sales &
Services v. Sauermilch Design and Handels GmbH [Southern
Sales & Services v. Sauermilch Design and Handels GmbH,(2008) 14 SCC 457], it is a well-established principle of law
that the Revisional Court will not interfere even if a wrong
order is passed by a court having jurisdiction, in theabsence of a jurisdictional error. The answer to the first
question is therefore, in the negative.”
17. The present revision has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
18. The victim, Kishni Devi (PW1), stated that she had
gone to Adhwar Kothru at about 07:00 am and was returning to
her home at about 08:30 am. She reached Bada at 09:00 am,
where accused Moti Ram had concealed himself. He obstructed
her path and told her that she was demanding more land. He
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would give her more land. He abused the victim, and when the
victim asked him not to abuse her, the accused gave her
.
beatings. He pushed her and took out scissors concealed by him
in his jacket and cut her braid. She sustained injuries. She
shouted for help, and the accused ran away from the spot. She
narrated the incident to her husband. Both of them went to the
police station and reported the matter to the police.
19. She stated in her cross-examination that the
distance between Adhwar Kothru to Bada was one meter. Bada
was not a village, but a place where sheep and goat are tied. Her
house was located at a distance of 02 meters from Kothru. The
name of her village is Chachal. 20-25 families reside in the
village of Chachal. No person was present at Bada. She admitted
that people used to cross that place. She denied that the cries
could be heard in the village Chachal. She admitted that she had
a dispute with the accused over the land. This dispute was
pending for about 04 years. The incident continued for 10-15
minutes. No villagers arrived at the spot after hearing her cries.
She did not narrate the incident to any person except her
husband. She denied that the accused had not cut her braid.
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20. It was submitted that her testimony makes the
prosecution’s case doubtful. She stated that the distance
.
between Adhwar Kothru and Bada was about one meter, and she
took 30 minutes to cover this distance. She claimed her house is
located at a distance of 2 meters from Kothru; however, no
person had visited the spot after hearing her cries, which is
highly improbable. This submission is not acceptable. She is an
uneducated villager because she put her thumbprint on her
statement. There is nothing on record to show that she knows
the meaning of the term meter; therefore, her testimony
regarding the distance cannot be accepted.
21. SI Jagdish Chand (PW-5) conducted the
investigation. He prepared the site plan (Ex-PW5/C). He has
shown the place of the incident at point A, which is located on a
path going through the Jungle. He specifically stated in his
cross-examination that there was no house on the place of the
incident. He was not asked about the distance between Adhwar
Kothru, the village Chachal and Bada. Hence, the prosecution’s
case could not have been rejected because of the distance given
by the victim.
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22. It was submitted that the victim admitted in her
cross-examination that a land dispute was pending between her
.
and the accused, which shows the enmity between the parties.
No witness corroborated her testimony, and the learned Courts
below erred in relying upon the victim’s testimony. This
submission cannot be accepted. Learned Courts below had
rightly pointed out that the enmity is a double-edged weapon-
while it furnishes a motive for false implication, it also furnishes
a motive for the commission of crime; therefore, the enmity by
itself could not have been used to discard the victim’s testimony.
This proposition was laid down in Orissa v. Madhusudan Sahu,
2006 SCC OnLine Ori 241: 2007 Cri LJ 440, wherein it was observed
at page 443:
“15. While the accused persons propagate the plea that,
because of this enmity, they have been falsely implicated,
the prosecution has come up with the suggestion that theattack on P.W. 6 was carried out because of the enmity.
Enmity between the parties is a double-edged weapon.
The effect of enmity is to be considered in the case
according to the circumstances and evidence available on
record. What is settled is that once enmity exists between
the parties, the evidence adduced by the parties is to be
scrutinised with great care and caution, and every
mitigating circumstance has to be given importance. (See
(2004) 27 OCR 899 (SC). Biharinath Goswamy v. Shiv Kumar
Singh, (2004) 27 OCR 462: (2004 Cri LJ
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23. Dr. Chandan Verma (PW4) conducted the victim’s
.
medical examination. He found a cut lacerated wound at the
parietal side of the scalp and a cut lacerated wound at the left
nasal fold. The injuries sustained by the victim showed her
presence on the spot. It was laid down by the Hon’ble Supreme
Court in Bhajan Singh @ Harbhajan Singh & Ors. Versus State of
Haryana (2011) 7 SCC 421, that the evidence of the stamped
witness must be given due weightage as his presence on the spot
cannot be doubted. It was observed: –
“36. The evidence of the stamped witness must be given
due weightage as his presence at the place of occurrence
cannot be doubted. His statement is generally considered
to be very reliable, and it is unlikely that he has spared theactual assailant to falsely implicate someone else. The
testimony of an injured witness has its own relevancy and
efficacy as he has sustained injuries at the time and place
of occurrence, and this lends support to his testimony thathe was present at the time of occurrence. Thus, the
testimony of an injured witness is accorded a special
status in law. Such a witness comes with a built-in
guarantee of his presence at the scene of the crime and is
unlikely to spare his actual assailant(s) in order to falsely
implicate someone. “Convincing evidence is required to
discredit an injured witness”. Thus, the evidence of an
injured witness should be relied upon unless there are
grounds for the rejection of his evidence on the basis of
major contradictions and discrepancies therein. (Vide:
Abdul Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259;
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Kailas & Ors. v. State of Maharashtra, (2011) 1 SCC 793;
Durbal v. State of Uttar Pradesh, (2011) 2 SCC 676; and State
of U.P. v. Naresh & Ors., (2011) 4 SCC 324).
.
24. It was held by the Hon’ble Supreme Court in Neeraj
Sharma v. State of Chhattisgarh, (2024) 3 SCC 125: 2024 SCC
OnLine SC 13 that the testimony of the injured witness has to be
accepted as correct unless there are compelling circumstances to
doubt such statement. It was observed:
“22. The importance of an injured witness in a criminal
trial cannot be overstated. Unless there are compellingcircumstances or evidence placed by the defence to
doubt such a witness, this has to be accepted as
extremely valuable evidence in a criminal trial.
23. In Balu Sudam Khalde v. State of Maharashtra [Balu
Sudam Khalde v. State of Maharashtra, (2023) 13 SCC 365:
2023 SCC OnLine SC 355], this Court summed up the
principles which are to be kept in mind when
appreciating the evidence of an injured eyewitness. ThisCourt held as follows: (SCC para 26)
“26. When the evidence of an injured eyewitness is to
be appreciated, the under-noted legal principles
enunciated by the Courts are required to be kept inmind:
26.1. The presence of an injured eyewitness at
the time and place of the occurrence cannot be
doubted unless there are material contradictions
in his deposition.
26.2. Unless it is otherwise established by the
evidence, it must be believed that an injured
witness would not allow the real culprits to
escape and falsely implicate the accused.
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26.3. The evidence of the injured witness has
greater evidentiary value, and unless compelling
reasons exist, their statements are not to be
.
discarded lightly.
26.4. The evidence of the injured witness cannot
be doubted on account of some embellishment
in natural conduct or minor contradictions.
26.5. If there be any exaggeration or immaterial
embellishment in the evidence of an injured
witness, then such contradiction, exaggeration
or embellishment should be discarded from the
evidence of the injured, but not the whole
evidence.
26.6. The broad substratum of the prosecution
r version must be taken into consideration, and
discrepancies which normally creep due to loss
of memory with the passage of time should be
discarded.” (emphasis supplied)
25. It was laid down by the Hon’ble Supreme Court in
State of U.P. Versus Smt. Noorie Alias Noor Jahan and Others, (1996)
9 SCC 104, that while assessing the evidence of an eyewitness,
the Court must adhere to two principles, namely whether, in the
circumstances of the case, the eyewitness could be present and
whether there is anything inherently improbable or unreliable.
It was observed:-
“7. The High Court having acquitted the accused persons
on appreciation of the evidence, we have ourselves
scrutinised the evidence of PWs 1, 2 and 3. The conclusion
is irresistible that their evidence on material particulars
has been brushed aside by the High Court by entering into
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( 2025:HHC:20444 )even discussing the evidence, more particularly the
evidence relating to the basic prosecution case. While
assessing and evaluating the evidence of eyewitnesses, the.
Court must adhere to two principles, namely, whether, in the
circumstances of the case, it was possible for the eyewitness
to be present at the scene and whether there is anything
inherently improbable or unreliable. The High Court, in ouropinion, has failed to observe the aforesaid principles
and, in fact, has misappreciated the evidence, which has
caused a gross miscarriage of justice. The credibility of a
witness has to be decided by referring to his evidence andfinding out how he has fared in cross-examination and
what impression is created by his evidence, taken insofar
as the context of the case, and not by entering into the
realm of conjecture and speculation. On scrutinising theevidence of PWs. 1, 2 and 3 we find they are consistent
with one another so far as the place of occurrence, the
manner of assault, the weapon of assault used by the
accused persons, the fact of dragging of the dead body of
the deceased from the place to the grove and nothing hasbeen brought out in their cross-examination to impeach
their testimony. The aforesaid oral evidence fully
corroborates the medical evidence. In that view of thematter, we unhesitatingly come to the conclusion that the
prosecution has been able to establish the charge againstthe accused persons and the High Court committed an
error in acquitting the three respondents, namely Inder
Dutt, Raghu Raj and Bikram.” (emphasis supplied)
26. It was laid down by the Hon’ble Supreme Court in
State of Punjab vs. Hari Singh 1974 (3) SCR 725 that a person
speaking on oath should be presumed to be a truthful witness
unless there is something inherently improbable in his
testimony. It was observed:
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“The ordinary presumption is that a witness speaking
under an oath is truthful unless and until he is shown to
be untruthful or unreliable in any particular respect. The.
High Court, reversing this approach, seems to us to have
assumed that witnesses are untruthful unless it is proved
that they are telling the truth. Witnesses, solemnly
deposing on oath in the witness box during a trial upon agrave charge of murder, must be presumed to act with a
full sense of responsibility for the consequences of what
they state. It may be that what they say is so very unlikely
or unnatural or unreasonable that it is safer not to actupon it or even to disbelieve them.”
27. Dr. Chandan Verma (PW-4) admitted in his cross-
examination that the injuries noticed by him could have been
caused by a fall on the rocky surface; however, it was merely an
alternative hypothesis, and it was sufficient to discard the
testimony of the victim.
28. Brij Lal (PW3) stated that the accused produced
scissors and the victim produced braid, which were seized by the
police. It was submitted that this witness had not supported the
prosecution’s case and was permitted to be cross-examined;
however, he was cross-examined regarding what was told to
him by the victim in the presence of the police. The statement
made by a witness in the presence of the police is hit by Section
162 of Cr.PC and could not have been proved in a Court of law;
therefore, the fact that he was permitted to be cross-examined
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because he failed to depose about the inadmissible evidence will
not make his testimony doubtful.
.
29. Moreover, he was not cross-examined regarding the
production of the braid by the victim or the scissors by the
accused. Nothing was suggested to him in his cross-
examination that the accused had not produced the scissors or
the victim had not produced her braid in his presence, therefore,
this part of his testimony was accepted as correct by the defence
and his testimony regarding the production of the scissors by
the accused and braid by the victim cannot be discarded.
30. SI Jagdish Chand (PW5) stated that he seized the
braid produced by the victim and the scissors produced by the
accused. These were sent to RFSL, and as per the report, the cut
hair matched the sample hair of the victim. The cut pattern of
the hair matched the cut pattern produced by the scissors
recovered from the accused. Thus, the report of RFSL duly
corroborated the testimony of the victim that the accused had
cut her braid with the scissors.
31. The victim narrated the incident to her husband,
Roshan Lal, after reaching her home. Roshan Lal stated that the
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victim told him that the accused obstructed her way and started
abusing her. The accused pushed her and cut her braid when she
.
asked the accused not to abuse her. He admitted in his cross-
examination that he was not present on the spot, and this fact
was narrated to him by the victim. However, this will not make
any difference. The statement was made by the victim
immediately after the incident to her husband and would be
admissible under Section 6 of the Indian Evidence Act. It was
laid down by the Hon’ble Supreme Court in Sukhar v. State of
U.P., (1999) 9 SCC 507: 2000 SCC (Cri) 419: 1999 SCC OnLine SC
1005 that the statement under section 6 can be admitted if the
statement is contemporaneous with the transaction. It was
observed at page 511:
“6. Section 6 of the Evidence Act is an exception to the
general rule whereunder the hearsay evidence becomes
admissible. But for bringing such hearsay evidence withinthe provisions of Section 6, what is required to be
established is that it must be almost contemporaneous
with the acts, and there should not be an interval which
would allow fabrication. The statements sought to be
admitted, therefore, as forming part of res gestae, must
have been made contemporaneously with the acts or
immediately thereafter. The aforesaid rule, as it is stated
in Wigmore’s Evidence Act, reads thus:
“Under the present exception [to hearsay] and
utterance is by hypothesis, offered as an assertion to
evidence the fact asserted (for example that a car::: Downloaded on – 30/06/2025 21:16:55 :::CIS
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( 2025:HHC:20444 )brake was set or not set), and the only condition is that
it shall have been made spontaneously, i.e. as the
natural effusion of a state of excitement. Now, this.
state of excitement may well continue to exist after the
exciting fact has ended. The declaration, therefore,
may be admissible even though subsequent to the
occurrence, provided it is near enough in time to allowthe assumption that the exciting influence continued.”
7. Sarkar on Evidence (15th Edn.) summarises the law
relating to the applicability of Section 6 of the Evidence
Act thus:
“1. The declarations (oral or written) must relate to
the act which is in issue or relevant thereto; they
are not admissible merely because they accompanyan act. Moreover, the declarations must relate to
and explain the fact they accompany, and notindependent facts previous or subsequent thereto,
unless such facts are part of a transaction which is
continuous.
2. The declarations must be substantially
contemporaneous with the facts and not merely the
narrative of a past.
3. The declaration and the act may be by the same
person, or they may be by different persons, e.g.,
the declarations of the victim, assailant and
bystanders. In conspiracy, riot & c, the declarationsof all concerned in the common object are
admissible.
4. Though admissible to explain or corroborate, or
to understand the significance of the act,
declarations are not evidence of the truth of the
matters stated.”
8. This Court in Gentela Vijayavardhan Rao v. State of
A.P. [(1996) 6 SCC 241: 1996 SCC (Cri) 1290], considering
the law embodied in Section 6 of the Evidence Act, held
thus: (SCC pp. 246-47, para 15)
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“15. The principle of law embodied in Section 6 of the
Evidence Act is usually known as the rule of res gestae
recognised in English law. The essence of the doctrine
.
is that a fact which, though not in issue, is so
connected with the fact in issue as to form part of the
same transaction, that it becomes relevant by itself.
This rule is, roughly speaking, an exception to the
general rule that hearsay evidence is not admissible.
The rationale in making certain statements or facts
admissible under Section 6 of the Evidence Act is on
account of the spontaneity and immediacy of such
statement or fact in relation to the fact in issue. But it
is necessary that such a fact or statement must be a
part of the same transaction. In other words, such a
statement must have been made contemporaneous
with the acts which constitute the offence or at least
immediately thereafter. But if there was an interval,
however slight it may be, which was sufficient enough
for fabrication, then the statement is not part of res
gestae.”
9. In another recent judgment of this Court in Rattan
Singh v. State of H.P. [(1997) 4 SCC 161: 1997 SCC (Cri) 525]
this Court examined the applicability of Section 6 of the
Evidence Act to the statement of the deceased and held
thus: (SCC p. 167, para 16)
“[T]he aforesaid statement of Kanta Devi can be
admitted under Section 6 of the Evidence Act on
account of its proximity in time to the act of murder.
Illustration ‘A’ to Section 6 makes it clear. It reads
thus:
‘(a) A is accused of the murder of B by beating him.
Whatever was said or done by A or B or the
bystanders at the beating, or so shortly before or
after it as to form part of the transaction, is a
relevant fact.’ (emphasis supplied)
Here the act of the assailant intruding into the
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( 2025:HHC:20444 )identification of the assailant, her pronouncement
that the appellant was standing with a gun and his
firing the gun at her, are all circumstances so.
intertwined with each other by proximity of time and
space that the statement of the deceased became part
of the same transaction. Hence, it is admissible under
Section 6 of the Evidence Act.”
32. This position was reiterated in State of Maharashtra v.
Kamal Ahmed Mohammed Vakil Ansari, (2013) 12 SCC 17: (2014) 1
SCC (Civ) 242: (2013) 4 SCC (Cri) 202: 2013 SCC OnLine SC
230 wherein it was observed at page 45:
41. We may first extract Section 6 of the Evidence Act
hereunder:
“6. Relevancy of facts forming part of same transaction.
–Facts which, though not in issue, are so connected
with a fact in issue as to form part of the sametransaction, are relevant, whether they occurred at the
same time and place or at different times and places.
Illustrations
(a) A is accused of the murder of B by beating him.
Whatever was said or done by A or B or the bystanders
at the beating, or so shortly before or after is as to
form part of the transaction, is a relevant fact.
(b) A is accused of waging war against the Government
of India by taking part in an armed insurrection in
which property is destroyed, troops are attacked, and
gaols are broken open. The occurrence of these facts is
relevant, as forming part of the general transaction,
though A may not have been present at all of them.
(c) A sues B for a libel contained in a letter forming
part of a correspondence. Letters between the parties
relating to the subject out of which the libel arose, and
forming part of the correspondence in which it is
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contained, are relevant facts, though they do not
contain the libel itself.
(d) The question is whether certain goods ordered
.
from B were delivered to A. The goods were delivered
to several intermediate persons successively. Each
delivery is a relevant fact.”
In our considered view, the test to determine
admissibility under the rule of “res gestae” is embodied
in the words “are so connected with a fact in issue as to
form a part of the same transaction”. It is therefore, that
for describing the concept of “res gestae”, one would
need to examine whether the fact is such as can be
described by use of words/phrases such as,
“contemporaneously arising out of the occurrence”,
“actions having a live link to the fact”, “acts perceived as
a part of the occurrence”, exclamations (of hurt, seeking
help, of disbelief, of cautioning, and the like) arising out
of the fact, spontaneous reactions to a fact, and the like. It
is difficult for us to describe Illustration (a) under Section
6 of the Evidence Act, especially in conjunction with the
words “are so connected with a fact in issue as to form a
part of the same transaction”, in a manner different from
the approach characterised above.
33. In the present case, the victim narrated the incident
immediately after reaching home to seek help from her
husband, and this will fall within the purview of Section 6 of the
Indian Evidence Act. This statement corroborates the victim’s
testimony in material particulars.
34. It was submitted that no independent person was
examined to corroborate the victim’s testimony. Learned Courts
below had rightly held that no witness had reached the spot.
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Hence, in these circumstances, there was no eyewitness, and
none could have been examined.
.
35. Therefore, it was duly proved on record by the
testimony of the victim that the accused had obstructed her
path, given her beatings and cut her braid. The accused had cut
her braid with the intent to dishonour her; therefore, he was
rightly held guilty of the commission of offences punishable
under Sections 323, 341 and 355 of the IPC. This was a reasonable
view which could have been taken by the learned Courts below,
and there was no perversity in the view taken by the learned
Courts below. Hence, the cited judgment in Gamini Bala Koteswar
Rao (supra) does not apply to the present case.
36. The learned Trial Court sentenced the accused to
undergo rigorous imprisonment for one year for the commission
of an offence punishable under Section 355 of the IPC. This
cannot be said to be excessive, keeping in view the fact that the
accused had cut the victim’s braid to dishonour her in society.
The act was done by the accused because of the pendency of the
land dispute and to teach a lesson to the victim; therefore, the
learned Trial Court had rightly taken a serious view in the
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matter, and no interference is required with the sentence
imposed by the learned Trial Court.
.
37. The learned Trial Court had also sentenced the
accused to undergo rigorous imprisonment for six months for
the commission of an offence punishable under Section 323 of
the IPC. Keeping in view the fact that a helpless woman was
beaten at a lonely place, the sentence of six months is also not
excessive.
38. Learned Trial Court sentenced the accused to
undergo a rigorous imprisonment for one month for the
commission of an offence punishable under Section 341 of IPC
and learned Appellate Court had rightly changed the nature of
punishment from rigorous imprisonment to simple, and no
further interference is required with the sentence imposed by
learned Appellate Court.
39. No other point was urged.
40. Thus, there is no infirmity in the judgments and
order passed by the learned Courts below. Consequently, the
present revision fails, and the same is dismissed.
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41. 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
26th June, 2025
(Shamsh Tabrez)
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