Himachal Pradesh High Court
Reserved On: 04.07.2025 vs State Of H.P on 31 July, 2025
2025:HHC:25492
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 497 of 2012
Reserved on: 04.07.2025
.
Date of Decision: 31.07.2025
Mohan Lal ...Appellant
Versus
State of H.P.
...Respondent
Coram r
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
For the Appellant : Mr. N.K. Thakur, Senior Advocate,
with Mr. Divya Raj Singh, Advocate.
For the Respondent/State: Mr. Lokender Kutlehria, Additional
Advocate General.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment of
conviction dated 30.11.2012 and order of sentence dated 03.12.2012
passed by learned Additional Sessions Judge (Fast Track Court)
Una, District Una, H.P. (learned Trial Court) vide which appellant
(accused before the learned Trial Court) was convicted for the
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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commission of offences punishable under Sections 323 and 325 of
Indian Penal Code (IPC) and was sentenced as under:
.
Section Sentence
325 of IPC Convict was sentenced to undergo rigorous
imprisonment for one year and was directed to pay a
fine of ₹1000/-, and for want of payment of fine, to
further undergo rigorous imprisonment for two
months.
323 of IPC Convict was sentenced to undergo rigorous
imprisonment for three months and was directed to
pay a fine of ₹500/-, and for want of payment of
fine, to further undergo rigorous imprisonment for
fifteen days.
Both the sentences were ordered to run concurrently.
(Parties shall hereinafter be referred to in the same manner as they
were arrayed before the learned Trial Court for convenience.)
2. Briefly stated, the facts giving rise to the present appeal
are that the police presented a challan before the learned Trial
Court for the commission of offences punishable under Sections
307, 341, 323, and 506 of the IPC. It was asserted that the police
received an information on 28.04.2011 that Tilak Raj (PW-5) was
brought in an injured condition to the Hospital. The police
recorded an entry (Ext.PW-6/A) and sent ASI Manmohan Singh
(PW-15), HHC Hoshiar Singh, and HHC Vinod Kumar to CHC
Daulatpur to verify the correctness of the information. ASI
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Manmohan Singh (PW-15) filed an application (Ext.PW-11/B) for
ascertaining the opinion of the Medical Officer regarding the
.
competence of the injured to make a statement. Dr. Sandeep
Narula (PW-11) certified that the injured was unable to make the
statement. Dr. Sandeep Narula (PW-11) conducted the medical
examination of injured Tilak Raj and found that he had suffered
multiple injuries. He advised X-ray of the skull/CT scan of the
head. ASI Manmohan Singh recorded the statement (Ext.PW-1/A)
of Vijay Laxmi (PW-1), who stated that the land of Sehdev, father
of the accused and Tilak Raj, was jointly held; however, Khatas
were separated during the consolidation. Sehdev had obtained
demarcation of his land in November. The Court demarcated the
land and advised him to file an appeal if he was not satisfied with
the demarcation. Mohan Lal started abusing the informant party
on 28.04.2011 in the morning and claimed that the land belonged
to him. Tilak Raj went to the spot and requested the accused,
Mohan Lal, not to hurl abuses. Mohan Lal inflicted injuries on the
head of Tilak Raj with the stick (Ext.P-3). Tilak Raj fell and became
unconscious. Mohan Lal threatened to kill the informant and his
family members. Balwant Singh (PW-2) and Amar Singh carried
the injured to the hospital. The statement was sent to the Police
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Station, where an F.I.R. (Ext.PW-10/A) was recorded. ASI
Manmohan conducted the investigation. He prepared the site plan
.
(Ext.PW-15/A) and took the photographs (Ext.PW-15/B to
Ext.PW-15/E) of the spot. He filed an application (Ext.PW-11/C) for
obtaining the final opinion of the Medical Officer, who stated that
the final opinion would be issued after the receipt of the X-ray and
CT scan report. A CT Scan of the injured was conducted by
Dr. R.K. Sharma (PW-4), who found a fracture in the left temporal
region. He issued the CT scan report (Ext.PW4/A). Blood-stained
shirt (Ext.P-1) and Payjama (Ext.P-2) were put in a parcel, and the
parcel was sealed with seal ‘M’. These were seized vide memo
(Ext.PW-1/B). Sample seal (Ext.PW15/F) was taken on a separate
piece of cloth, and the seal was handed over to Balwant Singh
(PW-2) after its use. The accused made a disclosure statement
(Ext.PW-8/A) stating that he had concealed the stick in the heap
of bricks near the under-construction House. Stick (Ext.P-3) was
got recovered by the accused. The stick was put in a cloth parcel,
and the parcel was sealed with five impressions of seal ‘K’. The
seal, after retaining a sample (Ext.PW15/G), was given to Puran
Singh (PW-8). The photographs of the recovery of the stick
(Ext.PW-15/H to Ext.PW15/K) were taken. The stick was seized
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vide memo (Ext.PW-3/B). An application (Ext.PW-11/E) was filed
before the Medical Officer for obtaining the final opinion
.
regarding the nature of injuries sustained by Tilak Raj. The
Medical Officer took out the stick and resealed the stick with the
hospital seal. Dr. Sandeep Narula (PW-11) issued his final opinion
stating that the injured had suffered simple and grievous injuries.
One of the injuries was dangerous to life. He issued an MLC
(Ext.PW-11/A). An application (Ext.PW-12/A) was filed before the
Tehsildar, Amb, District Una, H.P., and copies of the demarcation
report (Ext.PW-12/B and Ext.PW-12/C) were taken. CT Scan report
(Ext. PW-4/A), x-ray films (Ext.PW-3/A and Ext.PW-3/B), and CT
Scan film (Ext.C-1) were taken into possession. Statements of
witnesses were recorded as per their version, and after completion
of the investigation, the police prepared the challan and presented
it in the Court of learned Judicial Magistrate First Class, Court
No.2, Amb, District Una, H.P., who committed it to learned
Sessions Judge, Una for trial. Learned Sessions Judge assigned the
matter to learned Additional Session Judge, Fast Track Court, Una,
District Una, H.P. (the learned Trial Court) for disposal in
accordance with law.
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3. The learned Trial Court charged the accused with the
commission of offences punishable under Sections 307, 323, 341,
.
and 506 of the IPC, to which he pleaded not guilty and claimed to
be tried.
4. The prosecution examined 15 witnesses to prove its
case. Vijay Laxmi (PW-1) is the informant and eyewitness. Balwant
Singh (PW-2) and Bachitter Singh (PW-7) are the eyewitnesses to
the incident. J.B. Shashi Kapoor (PW-3) conducted the X-ray of
the injured Tilak Raj. Dr. R.K.Sharma (PW-4) issued the CT scan
report of the injured. Tilak Raj (PW-5) is the injured. Constable
Rajinder Kumar (PW-6) proved the entry in the daily diary. Puran
Singh (PW-8) and HC Kuldeep Singh (PW-9) are the witnesses to
the recovery of the stick. HC Ram Saroop (PW-10) was working as
an MHC who signed the F.I.R. and deposited the case property in
Malkhana. Dr.Sandeep Narula (PW-11) conducted the medical
examination of the injured. Satpal Singh (PW-12) produced the
report of the demarcation. Onkar Nath Sharma (PW-13) conducted
the demarcation. Jatinder Kumar, Deputy Superintendent of
Police (PW-14), prepared the challan. ASI Manmohan Singh
(PW-15) conducted the investigation.
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5. The accused, in his statement recorded under Section
313 of CrPC, denied that he had any boundary dispute with the
.
injured. He stated that witnesses deposed falsely against him
because they are relatives and friends of the informant party. He
claimed that a false case was made against him. He tendered
various documents in defence.
6. Learned Trial Court held that the statement of the
injured was corroborated by the testimonies of eyewitnesses. The
evidence on record did not satisfy the ingredients of Section 307 of
the IPC. However, it was proved that the injured had sustained
grievous injuries. There was no evidence that the injured was
restrained from going in any direction where he had a right to
proceed. The evidence was not sufficient to prove the ingredients
of Section 506 of the IPC. Hence, the accused was convicted and
sentenced as aforesaid.
6. Being aggrieved from the judgment and order passed
by the learned Trial Court, the accused/appellant has filed the
present appeal, asserting that the learned Trial Court erred in
convicting and sentencing the accused. The prosecution’s story
was highly improbable. The complainant admitted that he had a
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dispute with the informant over the land. The complainant party
wanted to encroach upon the land of the accused, and he was
.
falsely implicated in the present case. The prosecution witnesses
suppressed the material facts from the Court. The incident had
taken place on the land of the accused, and the accused had also
sustained injuries. No explanation for the injuries was provided by
the prosecution. Therefore, it was prayed that the present appeal
Court be set aside.
r to
be allowed and the judgment and order passed by the learned Trial
7. I have heard Mr. N.K. Thakur, learned Senior Counsel,
assisted by Mr. Divya Raj Singh, learned counsel for the appellant,
and Mr. Lokender Kutlehria, learned Additional Advocate General,
for the respondent/State.
8. Mr. N.K. Thakur, learned Senior Counsel for the
appellant, submitted that the accused is innocent and he was
falsely implicated. It was duly established by the statements of the
prosecution witnesses that there was a land dispute between the
parties. The place of the incident was not fixed by the
Investigating Officer by conducting any demarcation. The defence
version that the incident had taken place on the land of the
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accused was highly probable. The accused had also sustained
injuries, which were not explained by the prosecution. The
.
neighbours were not examined, and an adverse inference should
have been drawn against the prosecution. Bachitter Singh was a
chance witness whose presence on the spot was not established.
The possibility of sustaining the injuries by way of a fall cannot be
ruled out. He submitted, in the alternative, that the injuries
sustained by the victim cannot be said to be grievous, and the
learned Trial Court erred in convicting and sentencing the accused
of the commission of an offence punishable under Section 325 of
the IPC. At the worst, an offence punishable under Section 323 of
the IPC was made out against the accused. The accused remained
inside the jail during the trial. He is a first offender, and the
benefit of the Probation of Offenders Act should have been granted
to him. Therefore, he prayed that the present appeal be allowed
and the judgment and order passed by the learned Trial Court be
set aside.
9. Mr. Lokender Kutlehria, learned Additional Advocate
General for the respondent/State, supported the judgment and
order passed by the learned Trial Court and submitted that no
interference is required with them.
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10. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
.
11. Tilak Raj (PW-5) stated that he and his wife were
present in the house on 28.04.2011. The accused came at about
6:15 a.m. and started hurling filthy abuses. He told the accused not
to do so, but in vain. The accused had a long stick in his hand, and
he inflicted a stick blow on the head of the informant, Tilak Raj.
The blood came out, and he fell. His wife shouted for help.
Balwant Singh (PW-2), Amar Singh, and Bachitter Singh (PW-7)
came to the spot. He became unconscious and regained
consciousness on 29.04.2011 in the Hospital. He stated in his
cross-examination that he had disclosed the obscene gesture to
the police. He was confronted with his statement, where this fact
was not recorded. Balwant Singh (PW-2) had told him that he had
given a stick to the police. He did now know that Sehdev had filed
a civil suit in the year 1987 against him and his father which was
decreed. He had filed a civil suit against Sehdev and his son Mohan
Lal in the year 2006 about Khasra Nos. 173 and 171, which was
decreed in their favour. Bachitter Singh, son of Amin Chand, was
his witness. He became unconscious and could not say that how
many people had gathered on the spot first. He could not say
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whether Amar Singh or Balwant Singh had reached the spot.
Sehdev had encroached upon his land despite the stay order. He
.
admitted that the land on which Sehdev has constructed the house
is proclaimed by him to be his own. He volunteered to say that
Sehdev had encroached upon his land by constructing his Abadi.
He denied that a false case was made against the accused.
12. It was submitted that the testimony of this witness is
not reliable.
He was confronted with his previous statement,
wherein there was no mention of an obscene gesture, which shows
that he has materially improved upon his version, and his
testimony should be discarded due to the material improvements.
This submission cannot be accepted. ASI Manmohan Singh
(PW-15) was never asked whether Tilak Raj had told him about the
obscene gesture or not. Further, the witness had nowhere stated
anything about the obscene gesture in his examination-in-chief,
and it was impermissible to contradict him by asking a question
and thereafter confronting the witness with the statement. It was
laid down by the Hon’ble Supreme Court in Tahsildar Singh v. State
of U.P., AIR 1959 SC 1012:1959 SCC OnLine SC 17 that it is
impermissible for the defence to ask a question about what he had
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told the police and thereafter confront him with his previous
statement. It was observed:
.
“13….The second part of S. 145 of the Evidence Act clearly
indicates the simple procedure to be followed. To illustrate:
A says in the witness-box that B stabbed C; before the
police, he had stated that D stabbed C. His attention can bedrawn to that part of the statement made before the police
which contradicts his statement in the witness-box. If he
admits his previous statement, no further proof is
necessary; if he does not admit, the practice generallyfollowed is to admit it, subject to proof by the police officer.
On the other hand, the procedure suggested by the learned
Counsel may be illustrated thus: If the witness is asked,
“Did you say before the police officer that you saw a gaslight?” and he answers “yes”, then the statement which
does not contain such recital is put to him as a
contradiction. This procedure involves two fallacies: one is
that it enables the accused to elicit by a process of cross-
examination what the witness stated before the policeofficer. If a police officer did not make a record of a
witness’s statement, his entire statement could not be used
for any purpose, whereas if a police officer recorded a few
sentences, by this process of cross-examination, thewitness’s oral statement could be brought on record. This
procedure, therefore, contravenes the express provision ofS. 162 of the Code. The second fallacy is that by the
illustration given by the learned Counsel for the appellants,
there is no self-contradiction of the primary statementmade in the witness-box, for the witness has not yet made
on the stand any assertion at all which can serve as the
basis. The contradiction, under the section, should be between
what a witness asserted in the witness-box and what he stated
before the police officer, and not between what he said he had
stated before the police officer and what he actually said before
him. In such a case, the question could not be put at all: only
questions to contradict can be put, and the question here posed
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2025:HHC:25492by the police statement. This argument of the learned Counsel
based upon S. 145 of the Evidence Act is, therefore, not of
any relevance in considering the express provisions of S.162
of the Code of Criminal Procedure.” (emphasis supplied).
13. Therefore, no advantage can be derived from the
contradiction in the statement of this witness, and his statement
cannot be rejected simply because he has not told the police about
the obscene gesture. Further the statement was never get perused
from the Investigating Officer.
14. Proviso to section 162 of Cr.P.C. permits the use of the
statement recorded by the police to contradict a witness. It reads:
Provided that when any witness is called for the
prosecution in such inquiry or trial whose statement has
been reduced into writing as aforesaid, any part of hisstatement, if duly proved, may be used by the accused, and
with the permission of the Court, by the prosecution, to
contradict such witness in the manner provided by section
145 of the Indian Evidence Act, 1872 (1 of 1872) and whenany part of such statement is so used, any part thereof may
also be used in the re-examination of such witness, but forthe purpose only of explaining any matter referred to in
his cross-examination.
15. Thus, it is apparent that the defence can use the
statement to contradict a witness if the statement is proved. It was
laid down by the Hon’ble Bombay High Court about a century ago
in Emperor vs. Vithu Balu Kharat (1924) 26 Bom. L.R. 965 that the
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2025:HHC:25492previous statement has to be proved before it can be used. It was
observed:
.
“The words “if duly proved” in my opinion, clearly show
that the record of the statement cannot be admitted in
evidence straightaway but that the officer before whom the
statement was made should ordinarily be examined as toany alleged statement or omitted statement that is relied
upon by the accused for the purpose of contradicting the
witness; and the provisions of Section 67 of the Indian
Evidence Act apply to this case, as well as to any othersimilar ease. Of course, I do not mean to say that, if the
particular police officer who recorded the statement is not
available, other means of proving the statement may not
be availed of, e.g., evidence that the statement is in thehandwriting of that particular officer.”
16. It was laid down by the Hon’ble Supreme Court in
Muthu Naicker and Others, etc. Versus State of T.N. (1978) 4 SCC 385
that if the witness affirms the previous statement, no proof is
necessary, but if the witness denies or says that he did not
remember the previous statement, the investigating officer should
be asked about the same. It was observed: –
“52. This is the most objectionable manner of using the
police statement, and we must record our emphatic
disapproval of the same. The question should have been
framed in a manner to point out that from amongst those
accused mentioned in examination-in-chief there were
some whose names were not mentioned in the police
statement and if the witness affirms this no further proof is
necessary and if the witness denies or says that she does not
remember, the investigation officer should have been
questioned about it.”
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17. The Gauhati High Court held in Md. Badaruddin Ahmed
v. State of Assam, 1989 SCC OnLine Gau 35: 1989 Cri LJ 1876, that if
.
the witness denies having made the statement, the portion
marked by the defence should be put to the investigating officer
and his version should be elicited regarding the same. It was
observed at page 1880: –
“13. The learned defence counsel has drawn our attention to
the above statement of the Investigating Officer and
submits that P.W. 4 never made his above statement before
the police and that the same, being his improved version,
cannot be relied upon. With the utmost respect to thelearned defence counsel, we are unable to accept his above
contention. Because, unless the particular matter or point
in the previous statement sought to be contradicted is
placed before the witness for explanation, the previous
statement cannot be used in evidence. In other words,drawing the attention of the witness to his previous
statement sought to be contradicted and giving all
opportunities to him for explanation are compulsory. If anyauthority is to be cited on this point, we may conveniently
refer to the case of Pangi Jogi Naik v. State reported in AIR1965 Orissa 205: (1965 (2) Cri LJ 661). Further in the case
of Tahsildar Singh v. State of U.P., reported in AIR 1959 SC
1012: (1959 Cri LJ 1231) it was also held that the statementnot reduced to writing cannot be contradicted and,
therefore, in order to show that the statement sought to be
contradicted: was recorded by the police, it should be
marked and exhibited. However, in the case at hand, there is
nothing on the record to show that the previous statement
of the witness was placed before him and that the witness
was given the chance for explanation. Again, his previous
statement was not marked and exhibited. Therefore, his
previous statement before the police cannot be used. Hence,::: Downloaded on – 31/07/2025 21:24:22 :::CIS
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2025:HHC:25492his evidence that when he turned back, he saw the accused
Badaruddin lowering the gun from his chest is to be taken
as his correct version.
14. The learned defence counsel has attempted to persuade
.
us not to rely on the evidence of this witness on the ground
that his evidence before the trial Court is contradicted by his
previous statement made before the police. However, in
view of the decisions made in the said cases we have beenpersuaded irresistibly to hold that the correct procedure to
be followed which would be in conformity with S. 145 of the
Evidence Act to contradict the evidence given by
the prosecution witness at the trial with a statement madeby him before the police during the investigation will be to
draw the attention of the witness to that part of the
contradictory statement which he made before the police,
and questioned him whether he did, in fact, make thatstatement. If the witness admits having made the particular
statement to the police, that admission will go into
evidence and will be recorded as part of the evidence of the
witness and can be relied on by the accused as establishing
the contradiction. However, if, on the other hand, thewitness denies to have made such a statement before the
police, the particular portions of the statement recorded
should be provisionally marked for identification as B-1 toB-1, B-2 to B-2 etc. (any identification mark) and when the
investigating officer who had actually recorded thestatements in question comes into the witness box, he
should be questioned as to whether these particular
statements had been made to him during the investigationby the particular witness, and obviously after refreshing his
memory from the case diary the investigating officer would
make his answer in the affirmative. The answer of the
Investigating Officer would prove the statements B-1 to B-
1, B-2 to B-2, which are then exhibited as Ext. D. 1, Ext. D. 2,
etc. (exhibition mark) in the case and will go into evidence,
and may, thereafter, be relied on by the accused as
contradictions. In the case in hand, as was discussed above,
the above procedure was not followed while cross-
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2025:HHC:25492examining the witness to his previous statements, and,
therefore, we have no alternative but to accept the
statement given by this witness before the trial Court that
he saw the accused Badaruddin lowering the gun from his.
chest to be his correct version.”
18. Andhra Pradesh High Court held in Shaik Subhani v.
State of A.P., 1999 SCC OnLine AP 413: (1999) 5 ALD 284: 2000 Cri LJ
321: (1999) 2 ALT (Cri) 208 that putting a suggestion to the witness
and the witness denying the same does not amount to putting the
contradiction to the witness. The attention of the witness has to
be drawn to the previous statement, and if he denies it, the
statement is to be proved by the investigating officer. It was
observed at page 290: –
“24… As far as contradictions put by the defence are
concerned, we would like to say that the defence Counsel
did not put the contradictions in the manner in which it
ought to have been put. By putting suggestions to thewitness and the witness denying the same will not amount
to putting contradiction to the witness. The contradictionhas to be put to the witness as contemplated under Section
145 of the Evidence Act. If a contradiction is put to the
witness and it is denied by him, then his attention has to bedrawn to the statement made by such witness before the
Police or any other previous statement and he must be
given a reasonable opportunity to explain as to why such
contradiction appears and he may give any answer if the
statement made by him is shown to him and if he
confronted with such a statement and thereafter the said
contradiction must be proved through the Investigation
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2025:HHC:25492the witness and getting it proved through the Investigation
Officer.”
19. The Calcutta High Court took a similar view in Anjan
.
Ganguly v. State of West Bengal, 2013 SCC OnLine Cal 22948: (2013) 2
Cal LJ 144: (2013) 3 Cal LT 193: (2013) 128 AIC 546: (2014) 2 RCR (Cri)
970: (2013) 3 DMC 760 and held at page 151: –
“21. It was held in State of Karnataka v. Bhaskar Kushali
Kothakar, reported as (2004) 7 SCC 487 that if any statementof the witness is contrary to the previous statement
recorded under Section 161, Cr.P.C. or suffers from omission
of certain material particulars, then the previous statement
can be proved by examining the Investigating Officer whohad recorded the same. Thus, there is no doubt that for
proving the previous statement Investigating Officer ought
to be examined, and the statement of the witness recorded
by him, can only be proved by him and he has to depose to
the extent that he had correctly recorded the statement,without adding or omitting, as to what was stated by the
witness.
23. Proviso to Section 162(1), Cr.P.C. states in clear terms
that the statement of the witness ought to be duly proved.
The words, if duly proved, cast a duty upon the accused whowants to highlight the contradictions by confronting the
witness to prove the previous statement of a witness
through the police officer who has recorded the same in theordinary way. If the witness in the cross-examination
admits contradictions, then there is no need to prove the
statement. But if the witness denies a contradiction and the
police officer who had recorded the statement is called by
the prosecution, the previous statement of the witness on
this point may be proved by the police officer. In case
the prosecution fails to call the police officer in a given
situation Court can call this witness, or the accused can call
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2025:HHC:25492doubt that unless the statement as per the proviso to sub-
section (1) of Section 162, Cr.P.C., is duly proved, the
contradiction in terms of Section 145 of the Indian Evidence
Act cannot be taken into consideration by the Court.
.
24. To elaborate on this further, it will be necessary to
reproduce Section 145 of the Indian Evidence Act.
“S. 145. A witness may be cross-examined as to previousstatements made by him in writing or reduced into writing,
and relevant to matters in question, without such writing
being shown to him, or being proved; but, if it intended to
contradict him by the writing, his attention must, before the
writing can be proved, be called to those parts of it which areto be used for the purpose of contradicting him.”
25. Therefore, it is appropriate that before the previous
statement or statement under Section 161, Cr.P.C. is proved,
the attention of the witness must be drawn to the portion in
the statement recorded by the Investigating Officer to bring
to light the contradiction, a process called confrontation.
26. Let us first understand what is proper procedure. A
witness may have stated in the statement under Section 161,
Cr.P.C. that ‘X murdered Y’. In Court witness states, ‘Z
murdered Y’. This is a contradiction. Defence Counsel or
Court, and even prosecution if the witness is declared
hostile, having resiled from a previous statement, is to be
confronted to bring contradiction on record. The attention
of the witness must be drawn to the previous statement or
statement under Section 161, Cr.P.C., where it was stated
that ‘X murdered Y’. Since Section 145 of the Indian
Evidence Act uses the word being proved, therefore, in the
course of examination of the witness, a previous statement
or statement under Section 161, Cr.P.C. will not be exhibited
but shall be assigned a mark, and the portion contradicted
will be specified. The trial Court, in the event of
contradiction, has to record as under.
27. The attention of the witness has been drawn to portions
A to A of the statement marked as 1, and confronted with
the portion where it is recorded that ‘X murdered Y’. In this
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manner, by way of confrontation, contradiction is brought
on record. Later, when the Investigating Officer is
examined, the prosecution or defence may prove the
statement, after the Investigating Officer testifies that
.
the statement assigned mark was correctly recorded by
him, at that stage the statement will be exhibited by the
Court. Then contradiction will be proved by the
Investigating Officer by stating that the witness had
informed or told him that ‘X murdered Y’ and he had
correctly recorded this fact.
28. Now a reference to the explanation to Section 162,
Cr.P.C., which says that an omission to state a fact or
circumstance may amount to contradiction. Say, for
instance, if a witness omits to state in Court that ‘X
murdered Y’, what he had stated in a statement under
Section 161, Cr.P.C. will be material? Contradiction, for
the Public Prosecutor, as the witness has resiled from
the previous statement, or if he has been sent for trial for
the charge of murder, omission to state ‘X murdered Y’ will
be a material omission, and amount to contradiction so far
defence of ‘W is concerned. At that stage, also attention of
the witness will also be drawn to a significant portion of the
statement recorded under Section 161, Cr.P.C., which
the witness had omitted to state, and note shall be given
that attention of the witness was drawn to the portion A to
A wherein it is recorded that ‘X murdered Y’. In this way,
the omission is brought to record. The rest of the procedure
stated earlier, qua confrontation, shall be followed to prove
the statement of the witness and the fact stated by the
witness.
29. Therefore, to prove the statement for the purpose of
contradiction, it is necessary that the contradiction or
omission must be brought to the notice of the witness. His
or her attention must be drawn to the portion of the
previous statement (in the present case statement under
Section 161, Cr.P.C.).”
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20. It was submitted that he admitted the pendency of a
civil dispute with the accused, and the prosecution’s case should
.
be rejected due to the civil dispute. This submission cannot be
accepted. Enmity is a double-edged weapon; while it furnishes a
motive for false implication, it also furnishes the motive for the
commission of crime. Therefore, not much advantage can be
derived from the enmity.
21.
Testimony of Tilak Raj (PW-5) is corroborated by Vijay
Laxmi (PW-1). She stated that she and her husband were present
at home. The accused Mohan Lal accused came at about 6:15 a.m.
and started hurling filthy abuses. Tilak Raj asked the accused not
to do so. The accused was armed with a stick, and he inflicted 3-4
injuries on Tilak Raj. She shouted for help. Balwant Singh,
Bachitter Singh, and Amar Singh came to the spot. Tilak Raj
became unconscious and fell. Blood came out of the head of Tilak
Raj. She, Balwant Singh, Bachitter Singh, and Amar Singh took
Tilak Raj to the hospital. She stated in her cross-examination that
she and her brother-in-law telephoned Kala to bring a vehicle. She
had told the police that Bachitter Singh had also visited the spot.
She was confronted with her previous statement (Ext.PW-1/A),
wherein this fact was not recorded. The House of Sher Singh was
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located adjacent to her house. Abadi of Neelam is located opposite
her house, but nobody resides in the house. Balwant, Bachitter
.
Singh, and Amir Singh came to the spot simultaneously at about
6:15 a.m. The vehicle arrived after about 10 minutes of the
incident. Up-Pardhan and Balwant Singh were with the police
when the police had reached the spot for the first time. The police
visited the spot once. She and Balwant Singh were present at the
r to
time of production of the clothes. She had seen the proceedings of
the recovery of the stick from inside the house. Sehdev had filed a
civil suit and stopped them from raising construction. She
volunteered to say that her husband had obtained a stay order.
Sehdev had raised the construction of Abadi in April 2011 up to 4-5
feet above the ground level. She claimed that construction was on
her land. She admitted that the pyjama of Tilak Raj was blood-
stained. She denied that the accused had not given any injury or
that her husband had fallen and sustained injuries.
22. Her testimony corroborates the statement of Tilak Raj
in material particulars. There is no major contradiction in the
statement of Tilak Raj and this witness. She was confronted with
her previous statement recorded by the police, but the
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Investigating Officer was not asked about those facts, and her
credit has not been impeached.
.
23. Balwant Singh (PW-2) supported the prosecution’s
version. He stated that he heard the cries of Vijay Laxmi (PW-1).
He, Amar Singh, Bachitter Singh, came to the spot. He saw Mohan
Lal inflicting injuries on the head of Tilak Raj, who became
unconscious and fell. The accused threatened to kill all the people.
He arranged the vehicle and took the injured to the hospital with
Vijay Laxmi and Amar Singh. He stated in his cross-examination
that the injured is his real brother and the accused is his real
nephew. He and Amar Singh were working in Khasra No. 175. The
blood was oozing out of the head of Tilak Raj. The police came to
the spot in the evening. The police did not record his statement.
Sehdev had raised the construction to the plinth level. Somebody
had called the vehicle to take the injured to the hospital. Bachitter
Singh was passing through the road at the time of the incident.
The police recorded his statement and the statement of Vijay
Laxmi at CHC Daulatpur. About 10 people, including children, had
gathered on the spot. The House of Sher Singh is located adjacent
to the house of the injured, and his house is at a distance of 25
meters. He denied that no injuries were caused by the accused. He
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admitted the land over which foundations have been erected by
Sehdev is proclaimed by Tilak Raj to be his own. He admitted that
.
no demarcation of land was obtained by him.
24. It was submitted that he is the brother of the injured
and, therefore, he is an interested witness. This submission
cannot be accepted. It was laid down by the Hon’ble Supreme
Court in Laltu Ghosh v. State of W.B., (2019) 15 SCC 344: (2020) 1 SCC
(Cri) 275: 2019 SCC OnLine SC 2 that a related witness is not an
interested witness and his testimony cannot be rejected on the
ground of interestedness. It was observed:
“12. As regards the contention that the eyewitnesses are
close relatives of the deceased, it is by now well-settled thata related witness cannot be said to be an “interested”
witness merely by virtue of being a relative of the victim.
This Court has elucidated the difference between
“interested” and “related” witnesses in a plethora of cases,
stating that a witness may be called interested only when he
or she derives some benefit from the result of litigation,
which in the context of a criminal case would mean that the
witness has a direct or indirect interest in seeing the
accused punished due to prior enmity or other reasons, and
thus has a motive to falsely implicate the accused (for
instance, see State of Rajasthan v. Kalki [State of
Rajasthan v. Kalki, (1981) 2 SCC 752: 1981 SCC (Cri)
593]; Amit v. State of U.P. [Amit v. State of U.P., (2012) 4 SCC
107 : (2012) 2 SCC (Cri) 590] and Gangabhavani v. Rayapati
Venkat Reddy [Gangabhavani v. Rayapati Venkat Reddy,
(2013) 15 SCC 298 : (2014) 6 SCC (Cri) 182] ).
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13. Recently, this difference was reiterated in
Ganapathi v. State of T.N. [Ganapathi v. State of T.N.,
(2018) 5 SCC 549 : (2018) 2 SCC (Cri) 793], in the
following terms, by referring to the three-Judge
.
Bench decision in State of Rajasthan v. Kalki [State of
Rajasthan v. Kalki, (1981) 2 SCC 752: 1981 SCC (Cri) 593]
: (Ganapathi case [Ganapathi v. State of T.N., (2018) 5
SCC 549 : (2018) 2 SCC (Cri) 793], SCC p. 555, para 14)
“14. “Related” is not equivalent to “interested”. A
witness may be called “interested” only when he
or she derives some benefit from the result of a
litigation; in the decree in a civil case, or in seeing
an accused person punished. A witness who is a
natural one and is the only possible eyewitness in
the circumstances of a case cannot be said to be
“interested”.
14. In criminal cases, it is often the case that the
offence is witnessed by a close relative of the victim,
whose presence on the scene of the offence would be
natural. The evidence of such a witness cannot
automatically be discarded by labelling the witness as
interested. Indeed, one of the earliest statements with
respect to interested witnesses in criminal cases was
made by this Court in Dalip Singh v. State of
Punjab [Dalip Singh v. State of Punjab, 1954 SCR 145:
AIR 1953 SC 364: 1953 Cri LJ 1465], wherein this Court
observed : (AIR p. 366, para 26)
“26. A witness is normally to be considered
independent unless he or she springs from sourceswhich are likely to be tainted, and that usually
means unless the witness has cause, such as
enmity against the accused, to wish to implicate
him falsely. Ordinarily, a close relative would be
the last to screen the real culprit and falsely
implicate an innocent person.”
15. In the case of a related witness, the Court may not
treat his or her testimony as inherently tainted and
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needs to ensure only that the evidence is inherently
reliable, probable, cogent, and consistent. We may
refer to the observations of this Court in Jayabalan v.
State (UT of Pondicherry) [Jayabalan v. State (UT of
.
Pondicherry), (2010) 1 SCC 199: (2010) 2 SCC (Cri) 966]:
(SCC p. 213, para 23)
“23. We are of the considered view that in cases
where the court is called upon to deal with theevidence of the interested witnesses, the approach
of the court while appreciating the evidence of
such witnesses must not be pedantic. The court
must be cautious in appreciating and accepting theevidence given by the interested witnesses, but the
court must not be suspicious of such evidence. The
primary endeavour of the court must be to look for
consistency. The evidence of a witness cannot be
r ignored or thrown out solely because it comesfrom the mouth of a person who is closely related
to the victim.”
25. It was laid down by the Hon’ble Supreme Court in Thoti
Manohar vs State of Andhra Pradesh (2012) 7 SCC 723 that the court
cannot discard the testimony of a witness on the ground of a
relationship. It was observed:
“31. In this context, we may refer with profit to the decision
of this Court in Dalip Singh v. State of Punjab AIR 1953 SC 364,wherein Vivian Bose, J., speaking for the Court, observed as
follows: –
“We are unable to agree with the learned Judges of
the High Court that the testimony of the two eye-
witnesses requires corroboration. If the foundation
for such an observation is based on the fact that the
witnesses are women and that the fate of seven men
hangs on their testimony, we know of no such rule. If
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2025:HHC:25492related to the deceased, we are unable to concur. This
is a fallacy common to many criminal cases and one
which another Bench of this Court endeavoured to
dispel in Rameshwar v. The State of Rajasthan (1952).
SCR 377 at p. 390 = (AIR 1952 SC 54 at page 59).”
32. In the said case, it was further observed that:
“A witness is normally to be considered independent
unless he or she springs from sources which are likely
to be tainted, and that usually means unless the
witness has a cause, such as an enmity against the
accused, to wish to implicate him falsely. Ordinarily, a
close relative would be the last to screen the realculprit and falsely implicate an innocent person. It is
true that when feelings run high and there is a
personal cause for enmity, there is a tendency to drag
in an innocent person against whom a witness has agrudge along with the guilty, but the foundation must
be laid for such criticism and the mere fact of
relationship far from being a foundation is often a
sure guarantee of truth.”
33. In Masalti v. State of U.P. AIR 1965 SC 202, it has been
ruled that normally close relatives of the deceased would
not be considered to be interested witnesses who would also
mention the names of the other persons as responsible for
causing injuries to the deceased.
34. In Hari Obula Reddi and others v. The State of Andhra
Pradesh, AIR 1981 SC 82, a three-judge Bench has held that
evidence of interested witnesses is not necessarily
unreliable evidence. Even partisanship by itself is not a valid
ground for discrediting or rejecting sworn testimony. It can
be laid down as an invariable rule that interested evidence
can never form the basis of conviction unless corroborated
to a material extent in material particulars by independent
evidence. All that is necessary is that the evidence of
interested witnesses should be subjected to scrutiny and
accepted with caution. If, on such scrutiny, the interested
testimony is found to be intrinsically reliable or inherently
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probable, it may, by itself, be sufficient, in the
circumstances of the particular case, to base a conviction
thereon.
35. In Kartik Malhar v. State of Bihar (1996) 1 SCC 614, it has
.
been opined that a close relative who is a natural witness
cannot be regarded as an interested witness, for the term
‘interested’ postulates that the witness must have some
interest in having the accused, somehow or the other,
convicted for some animus or some other reason.
36. In Pulicherla Nagaraju alias Nagaraja Reddy v. State of
Andhra Pradesh AIR 2006 SC 3010, while dealing with the
liability of interested witnesses who are relatives, a two-
judge Bench observed that:
“It is well settled that evidence of a witness cannot be
discarded merely on the ground that he is either
r partisan or interested or a close relative to the
deceased if it is otherwise found to be trustworthyand credible.”
The said evidence only requires scrutiny with more care and
caution, so that neither the guilty escapes nor the innocent
is wrongly convicted. If, on such scrutiny, the evidence is
found to be reliable and probable, then it can be acted upon.
“If it is found to be improbable or suspicious, it ought
to be rejected. Where the witness has a motive to
falsely implicate the accused, his testimony shouldhave corroboration in regard to material particulars
before it is accepted.”
26. This position was reiterated in Rajesh Yadav v. State of
U.P., (2022) 12 SCC 200: 2022 SCC OnLine SC 150, wherein it was
observed at page 222:
“Related and interested witness
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natural witness. If an offence is committed within the
precincts of the deceased, the presence of his family
members cannot be ruled out, as they assume the position.
of natural witnesses. When their evidence is clear, cogent,
and withstands the rigour of cross-examination, it becomes
sterling, not requiring further corroboration. A related
witness would become an interested witness, only when heis desirous of implicating the accused in rendering a
conviction, on purpose.
32. When the court is convinced with the quality of the
evidence produced, notwithstanding the classification asquoted above, it becomes the best evidence. Such testimony
being natural, adding to the degree of probability, the court
has to make reliance upon it in proving a fact. The aforesaid
position of law has been well laid down in Bhaskarrao v. Stateof Maharashtra [Bhaskarrao v. State of Maharashtra, (2018) 6
SCC 591: (2018) 3 SCC (Cri) 374]: (SCC pp. 603-604, paras 32-
36)
“32. Coming back to the appreciation of the evidence at
hand, at the outset, our attention is drawn to the factthat the witnesses were interrelated, and this Court
should be cautious in accepting their statements. It
would be beneficial to recapitulate the law concerningthe appreciation of evidence of a related witness. In Dalip
Singh v. State of Punjab [Dalip Singh v. State of Punjab,(1953) 2 SCC 36: 1954 SCR 145: AIR 1953 SC 364], Vivian
Bose, J. for the Bench observed the law as under: (AIR p.
366, para 26)
’26. A witness is normally to be considered
independent unless he or she springs from sources
which are likely to be tainted, and that usually means
unless the witness has cause, such as enmity against
the accused, to wish to implicate him falsely.
Ordinarily, a close relative would be the last to screen
the real culprit and falsely implicate an innocent
person. It is true, when feelings run high and there is
personal cause for enmity, that there is a tendency to
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drag in an innocent person against whom a witness
has a grudge along with the guilty, but foundation
must be laid for such a criticism and the mere fact of
relationship far from being a foundation is often a
.
sure guarantee of truth. However, we are not
attempting any sweeping generalisation. Each case
must be judged on its own facts. Our observations are
only made to combat what is so often put forward in
cases before us as a general rule of prudence. There is
no such general rule. Each case must be limited to and
be governed by its own facts.’
33. In Masalti v. State of U.P. [Masalti v. State of U.P., (1964)
8 SCR 133: AIR 1965 SC 202], a five-Judge Bench of this
Court has categorically observed as under: (AIR pp. 209-
210, para 14)
’14. … There is no doubt that when a criminal court has to
appreciate evidence given by witnesses who are partisan
or interested, it has to be very careful in weighing such
evidence. Whether or not there are discrepancies in the
evidence; whether or not the evidence strikes the court as
genuine, whether or not the story disclosed by the
evidence is probable, are all matters which must be taken
into account. But it would, we think, be unreasonable to
contend that evidence given by witnesses should be
discarded only on the ground that it is evidence of
partisan or interested witnesses. Often enough, where
factions prevail in villages and murders are committed as
a result of enmity between such factions, criminal courts
have to deal with evidence of a partisan type. The
mechanical rejection of such evidence on the sole ground
that it is partisan would invariably lead to the failure of
justice. No hard-and-fast rule can be laid down as to
how much evidence should be appreciated. Judicial
approach has to be cautious in dealing with such
evidence, but the plea that such evidence should be
rejected because it is partisan cannot be accepted as
correct.’
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34. In Darya Singh v. State of Punjab [Darya Singh v. State
of Punjab, (1964) 3 SCR 397: AIR 1965 SC 328], this Court
held that evidence of an eyewitness who is a near relative
of the victim should be closely scrutinised, but no
.
corroboration is necessary for acceptance of his
evidence. In Harbans Kaur v. State of Haryana [Harbans
Kaur v. State of Haryana, (2005) 9 SCC 195: 2005 SCC (Cri)
1213], this Court observed that: (Harbans Kaur
case [Harbans Kaur v. State of Haryana, (2005) 9 SCC 195:
2005 SCC (Cri) 1213], SCC p. 198, para 7)
‘7. There is no proposition in law that relatives are to
be treated as untruthful witnesses. On the contrary,reason has to be shown when a plea of partiality is
raised to show that the witnesses had reason to shield
the actual culprit and falsely implicate the accused.’
35. The last case we need to concern ourselves
is Namdeo v. State of Maharashtra [Namdeo v. State of
Maharashtra, (2007) 14 SCC 150: (2009) 1 SCC (Cri) 773],
wherein this Court after observing previous precedents
has summarised the law in the following manner: (SCC p.
164, para 38)
’38. … it is clear that a close relative cannot be
characterised as an “interested” witness. He is a
“natural” witness. His evidence, however, must be
scrutinised carefully. If on such scrutiny, his evidence
is found to be intrinsically
reliable, inherently probable, and wholly trustworthy,
conviction can be based on the “sole” testimony of
such a witness. A close relationship of the witness
with the deceased or victim is no ground to reject his
evidence. On the contrary, close relatives of the
deceased would normally be most reluctant to spare
the real culprit and falsely implicate an innocent one.’
36. From the study of the aforesaid precedents of this
Court, we may note that whoever has been a witness
before the court of law, having a strong interest in result,
if allowed to be weighed in the same scales with those
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who do not have any interest in the result, would be to
open the doors of the court for perverted truth. This
sound rule, which remains the bulwark of this system
and which determines the value of evidence derived from
.
such sources, needs to be cautiously and carefully
observed and enforced. There is no dispute about the fact
that the interest of the witness must affect his testimony
is a universal truth. Moreover, under the influence of
bias, a man may not be in a position to judge correctly,
even if they earnestly desire to do so. Similarly, he may
not be in a position to provide evidence in an impartial
manner when it involves his interest. Under such
influences, man will, even though not consciously,
suppress some facts, soften or modify others, and
provide favourable colour. These are the most
controlling considerations in respect to the credibility of
human testimony, and should never be overlooked in
applying the rules of evidence and determining its
weight in the scale of truth under the facts and
circumstances of each case.” (emphasis in original and
supplied)
33. Once again, we reiterate with a word of caution, the trial
court is the best court to decide on the aforesaid aspect, as
no mathematical calculation or straitjacket formula can be
made on the assessment of a witness, as the journey
towards the truth can be seen better through the eyes of the
trial Judge. In fact, this is the real objective behind the
enactment itself, which extends the maximum discretion to
the court.”
27. Similar is the judgment in M Nageswara Reddy vs. State
of Andhra Pradesh 2022 (5) SCC 791 wherein it was observed:
“10. Having gone through the deposition of the relevant
witnesses -eye-witnesses/injured eye-witnesses, we are of
the opinion that there are no major/material contradictions
in the deposition of the eye-witnesses and injured eye-
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Accused Nos. 1 to 3. The High Court has observed that PW1,
PW3 & PW5 were planted witnesses merely on the ground
that they were all interested witnesses, being relatives of.
the deceased. Merely because the witnesses were the
relatives of the deceased, their evidence cannot be
discarded solely on the aforesaid ground. Therefore, in the
facts and circumstances of the case, the High Court hasmaterially erred in discarding the deposition/evidence of
PW1, PW3, PW5 & PW6 and even PW7.”
28. It was laid down by the Hon’ble Supreme Court in
Mohd. Jabbar Ali v. State of Assam, 2022 SCC OnLine SC 1440, that
merely because the witnesses are related to each other is no reason
to discard their testimonies. The Court is required to see their
testimonies with due care and caution. It was observed:
55. It is noted that great weight has been attached to the
testimonies of the witnesses in the instant case. Having
regard to the aforesaid fact that this Court has examined thecredibility of the witnesses to rule out any tainted evidence
given in the court of Law. It was contended by learnedcounsel for the appellant that the prosecution failed to
examine any independent witnesses in the present case and
that the witnesses were related to each other. This Court, ina number of cases, has had the opportunity to consider the
said aspect of related/interested/partisan witnesses and the
credibility of such witnesses. This Court is conscious of the
well-settled principle that just because the witnesses are
related/interested/partisan witnesses, their testimonies
cannot be disregarded; however, it is also true that when the
witnesses are related/interested, their testimonies have to
be scrutinised with greater care and circumspection. In the
case of Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381,::: Downloaded on – 31/07/2025 21:24:22 :::CIS
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2025:HHC:25492this Court held that the testimony of such related witnesses
should be analysed with caution for its credibility.
56. In Raju alias Balachandran v. State of Tamil Nadu, (2012)
.
12 SCC 701, this Court observed:
“29. The sum and substance is that the evidence of a
related or interested witness should be meticulously
and carefully examined. In a case where the related
and interested witness may have some enmity with
the assailant, the bar would need to be raised, and the
evidence of the witness would have to be examined by
applying a standard of discerning scrutiny. However,
this is only a rule of prudence and not one of law, as
held in Dalip Singh [AIR 1953 SC 364] and pithily
reiterated in Sarwan Singh [(1976) 4 SCC 369] in the
following words: (Sarwan Singh case [(1976) 4 SCC
r 369, p. 376, para 10)
“10. … The evidence of an interested witness
does not suffer from any infirmity as such, but
the courts require, as a rule of prudence, not as
a rule of law, that the evidence of such
witnesses should be scrutinised with a little
care. Once that approach is made and the court
is satisfied that the evidence of interested
witnesses have a ring of truth, such evidence
could be relied upon even without
corroboration.”
57. Further delving into the same issue, it is noted that in
the case of Ganapathi v. State of Tamil Nadu, (2018) 5 SCC
549, this Court held that in several cases when only family
members are present at the time of the incident and the case
of the prosecution is based only on their evidence, Courts
have to be cautious and meticulously evaluate the evidence
in the process of trial.
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29. This position was reiterated in Baban Shankar Daphal v.
State of Maharashtra, 2025 SCC OnLine SC 137, wherein it was
.
observed:
“27. One of the contentions of the learned counsel for the
appellants is that the eyewitnesses to the incident were allclosely related to the deceased, and for prudence, the
prosecution ought to have examined some other
independent eyewitnesses as well who were present at the
time of the unfortunate incident. This was also the viewtaken by the Trial Court, but the High Court has correctly
rejected such an approach and held that merely because
there were some more independent witnesses also, who had
reached the place of the incident, the evidence of therelatives cannot be disbelieved. The law nowhere states that
the evidence of the interested witness should be discardedaltogether. The law only warrants that their evidence
should be scrutinised with care and caution. It has been held
by this Court in the catena of judgments that merely if a
witness is a relative, their testimony cannot be discarded onthat ground alone.
28. In criminal cases, the credibility of witnesses,
particularly those who are close relatives of the victim, is
often scrutinised. However, being a relative does notautomatically render a witness “interested” or biased. The
term “interested” refers to witnesses who have a personal
stake in the outcome, such as a desire for revenge or tofalsely implicate the accused due to enmity or personal
gain. A “related” witness, on the other hand, is someone
who may be naturally present at the scene of the crime, and
their testimony should not be dismissed simply because of
their relationship to the victim. Courts must assess the
reliability, consistency, and coherence of their statements
rather than labelling them as untrustworthy.
29. The distinction between “interested” and “related”
witnesses has been clarified in Dalip Singh v. State of
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Punjab,3, where this Court emphasised that a close relative is
usually the last person to falsely implicate an innocent
person. Therefore, in evaluating the evidence of a related
witness, the court should focus on the consistency and
.
credibility of their testimony. This approach ensures that
the evidence is not discarded merely due to familial ties, but
is instead assessed based on its inherent reliability and
consistency with other evidence in the case. This position
has been reiterated by this Court in:
I, Md. Rojali Ali v. The State of Assam, Ministry of Home
Affairs through Secretary (2019) 19 SCC 567;
ii. Ganapathi v. State of T.N. (2018) 5 SCC 549;
iii. Jayabalan v. Union Territory of Pondicherry (2010) 1
SCC 199.
30. Though the eyewitnesses who have been examined in
the present case were closely related to the deceased,
namely his wife, daughter, and son, their testimonies are
consistent with respect to the accused persons being the
assailants who inflicted wounds on the deceased. As is
revealed from the sequence of events that transpired, one of
the family members was subjected to an assault. It was thus
quite natural for the other family members to rush on the
spot to intervene. The presence of the family members on
the spot and thus being eyewitnesses has been well
established. In such circumstances, merely because the
eyewitnesses are family members, their testimonies cannot
be discarded solely on that ground.
30. Therefore, the relationship cannot be used to doubt the
testimony of this witness. The relationship may put the Court on
guard, but it is not sufficient to discard the prosecution’s case.
31. The name of Balwant Singh (PW-2) was mentioned in
the statement (Ext.PW-1/A), which was recorded on the same day
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at 7:40 a.m. He, Vijay Laxmi and Amar Singh had carried the
injured to the hospital, and their presence on the spot cannot be
.
doubted, and his testimony cannot be discarded because he is
related to the injured. Further, he stated that he is related not only
to the injured but also to the accused. Therefore, a mere
relationship will not make his testimony doubtful.
32. It was submitted that this witness stated about the
presence of ten persons; however, the prosecution did not
examine any independent person, and the prosecution’s case is
highly doubtful. This submission cannot be accepted. There is no
evidence that the persons had visited the spot before the incident.
The mere presence of a person after the incident would not have
proved the prosecution’s case. 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’s 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::: Downloaded on – 31/07/2025 21:24:22 :::CIS
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2025:HHC:25492prosecution 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’s case cannot be thrown out or doubted on that.
ground alone. The experience reminds us that civilised
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 thecourt 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 thereeverywhere, 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’s case for want of anindependent witness, must consider the broad spectrum of
the prosecution’s version and then search for the nugget oftruth with due regard to probability, if any, suggested by
the accused.”
33. 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
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2025:HHC:25492examined 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 multiply.
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 theprosecution 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 theprosecution. 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.”
34.
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 notmerely 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.”
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35. Thus, the prosecution’s case cannot be doubted
because no independent witness was not cited.
.
36. Bachitter Singh (PW-7) stated that he was going to the
Bhadarkali bazaar. He reached near the house of Tilak Raj and saw
that the accused hurling abuses at Tilak Raj. When Tilak Raj
objected, the accused gave him a beating on the head by way of a
stick. The blood oozed from the head of Tilak Raj. He fell on the
ground and became unconscious. He stated in his cross-
examination that he resided at a distance of 1 KM from Bhadarkali.
He was going to Bhadarkali to purchase wheat and sugar on the
ration card. Tilak Raj sustained injuries on the right side of the
head.
37. Tilaj Raj (PW-5) admitted in his statement that this
witness (Bachittear Singh-PW-7) had appeared as a witness in
the civil suit filed by him; therefore, he is a convenient witness. He
(PW-7) has given the reason for his presence that he wanted to
purchase ration, and he was going to Bhadarkali for this purpose.
Bhadarkali is located at one kilometre from his village. It is
difficult to believe that he was going to purchase rations at
6:15 a.m; therefore, he is to be considered a chance witness. It was
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laid down by the Hon’ble Supreme Court in Harbeer Singh v.
Sheeshpal, (2016) 16 SCC 418: (2017) 4 SCC (Cri) 503: 2016 SCC
.
OnLine SC 1164 that the chance witnesses have a habit of appearing
suddenly at the place of incident and thereafter disappearing.
Their testimonies should be seen with due care and caution. It was
observed at page 427:
23. The defining attributes of a “chance witness” were
explained by Mahajan, J., in Puran v. State of Punjab [Puran
v. State of Punjab, (1952) 2 SCC 454: AIR 1953 SC 459: 1953 Cri
LJ 1925]. It was held that such witnesses have the habit of
appearing suddenly on the scene when something ishappening and then disappearing after noticing the
occurrence about which they are called later on to give
evidence.
24. In Mousam Singha Roy v. State of W.B. [Mousam Singha
Roy v. State of W.B., (2003) 12 SCC 377: 2004 SCC (Cri) Supp429], this Court discarded the evidence of chance witnesses
while observing that certain glaring
contradictions/omissions in the evidence of PW 2 and PW 3and the absence of their names in the FIR has been very
lightly discarded by the courts below. Similarly, Shankarlalv. State of Rajasthan [Shankarlal v. State of Rajasthan, (2004)
10 SCC 632: 2005 SCC (Cri) 579] and Jarnail Singh v. State of
Punjab [Jarnail Singh v. State of Punjab, (2009) 9 SCC 719:
(2010) 1 SCC (Cri) 107] are authorities for the proposition
that deposition of a chance witness, whose presence at the
place of incident remains doubtful, ought to be discarded.
Therefore, for the reasons recorded by the High Court, we
hold that PW 5 and PW 6 were chance witnesses and their
statements have been rightly discarded.
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38. It was laid down by the Hon’ble Supreme Court in
Rajesh Yadav v. State of U.P., (2022) 12 SCC 200: 2022 SCC OnLine SC
.
150, that the testimony of a chance witness is to be seen with due
care and caution, and his presence on the spot should be
satisfactorily established. It was observed:
“Chance witness
29. A chance witness is one who happens to be at the place
of occurrence of an offence by chance, and therefore, not as
a matter of course. In other words, he is not expected to be
in the said place. A person walking on a street, witnessing
the commission of an offence, can be a chance witness.
Merely because a witness happens to see an occurrence by
chance, his testimony cannot be eschewed, though a little
more scrutiny may be required at times. This again is an
aspect that is to be looked into in a given case by the court.
We do not wish to reiterate the aforesaid position of lawwhich has been laid down by this Court in State of A.P. v. K.
Srinivasulu Reddy [State of A.P. v. K. Srinivasulu Reddy, (2003)
12 SCC 660: 2005 SCC (Cri) 817]: (SCC pp. 665-66, paras 12-
13)
“12. Criticism was levelled against the evidence of PWs 4
and 9, who are independent witnesses, by labelling them
as chance witnesses. The criticism about PWs 4 and 9
being chance witnesses is also without any foundation.
They have clearly explained as to how they happened to
be at the spot of occurrence, and the trial court and the
High Court have accepted the same.
13. Coming to the plea of the accused that PWs 4 and 9
were “chance witnesses” who had not explained how
they happened to be at the alleged place of occurrence, it
has to be noted that the said witnesses were independent
witnesses. There was not even a suggestion to the
witnesses that they had any animosity towards any of
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the accused. In a murder trial, by describing the
independent witnesses as “chance witnesses”, it cannot
be implied thereby that their evidence is suspicious and
their presence at the scene doubtful. Murders are not
.
committed with previous notice to witnesses; soliciting
their presence. If murder is committed in a dwelling
house, the inmates of the house are natural witnesses. If
murder is committed in a street, only passers-by will be
witnesses. Their evidence cannot be brushed aside or
viewed with suspicion on the ground that they are mere
“chance witnesses”. The expression “chance witness” is
borrowed from countries where every man’s home is
considered his castle, and everyone must have an
explanation for his presence elsewhere or in another
man’s castle. It is quite an unsuitable expression in a
country where people are less formal and more casual, at
any rate in the matter of explaining their presence.”
30. The principle was reiterated by this Court in Jarnail
Singh v. State of Punjab [Jarnail Singh v. State of Punjab,
(2009) 9 SCC 719: (2010) 1 SCC (Cri) 107]: (SCC p. 725, paras
21-23)
“21. In Sachchey Lal Tiwari v. State of U.P. [Sachchey
Lal Tiwari v. State of U.P., (2004) 11 SCC 410: 2004 SCC
(Cri) Supp 105] this Court while considering the
evidentiary value of the chance witness in a case of
murder which had taken place in a street and a
passer-by had deposed that he had witnessed the
incident, observed as under:
If the offence is committed in a street, only a
passer-by will be the witness. His evidence
cannot be brushed aside lightly or viewed with
suspicion on the ground that he was a mere
chance witness. However, there must be an
explanation for his presence there.
The Court further explained that the expression
“chance witness” is borrowed from countries where
every man’s home is considered his castle, and::: Downloaded on – 31/07/2025 21:24:22 :::CIS
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2025:HHC:25492everyone must have an explanation for his presence
elsewhere or in another man’s castle. It is quite an
unsuitable expression in a country like India, where
people are less formal and more casual, at any rate in.
the matter of explaining their presence.
22. The evidence of a chance witness requires very
cautious and close scrutiny and a chance witness
must adequately explain his presence at the place of
occurrence (Satbir v. Surat Singh [Satbir v. Surat Singh,
(1997) 4 SCC 192: 1997 SCC (Cri) 538], Harjinder
Singh v. State of Punjab [Harjinder Singh v. State of
Punjab, (2004) 11 SCC 253: 2004 SCC (Cri) Supp
28], Acharaparambath Pradeepan v. State of
Kerala [Acharaparambath Pradeepan v. State of Kerala,
(2006) 13 SCC 643 : (2008) 1 SCC (Cri) 241] and Sarvesh
Narain Shukla v. Daroga Singh [Sarvesh Narain
Shukla v. Daroga Singh, (2007) 13 SCC 360 : (2009) 1
SCC (Cri) 188] ). Deposition of a chance witness whose
presence at the place of incident remains doubtful
should be discarded (vide Shankarlal v. State of
Rajasthan [Shankarlal v. State of Rajasthan, (2004) 10
SCC 632: 2005 SCC (Cri) 579] ).
23. Conduct of the chance witness, after the incident,
may also be taken into consideration, particularly as
to whether he has informed anyone else in the village
about the incident (vide Thangaiya v. State of
T.N. [Thangaiya v. State of T.N., (2005) 9 SCC 650: 2005
SCC (Cri) 1284]). Gurcharan Singh (PW 18) met the
informant Darshan Singh (PW 4) before lodging the
FIR, and the fact of conspiracy was not disclosed by
Gurcharan Singh (PW 18) and Darshan Singh (PW 4).
The fact of conspiracy has not been mentioned in the
FIR. Hakam Singh, the other witness on this issue,
has not been examined by the prosecution. Thus, the
High Court was justified in discarding the part of the
prosecution’s case relating to conspiracy. However, in
the factual situation of the present case, the acquittal
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of the said two co-accused has no bearing, so far as
the present appeal is concerned.”
39. Therefore, it is difficult to rely upon his testimony.
.
40. Dr. Sandeep Narula (PW-11) conducted the medical
examination of the injured and found multiple injuries. He stated
that the injuries could have been caused by means of a stick. He
admitted in his cross-examination that injuries could be caused by
way of a fall on a hard surface. It was submitted that this
admission makes the prosecution’s case highly doubtful.
r This
submission cannot be accepted. A mere alternative possibility
admitted by the Medical Officer will not make the testimony
doubtful. It was laid down by the Hon’ble Supreme Court in
Ramakant Rai v. Madan Rai, (2003) 12 SCC 395: 2003 SCC OnLine SC
1086 that when the testimonies of the witnesses are found
credible, the medical evidence pointing to alternative possibilities
is not sufficient to discard the prosecution’s case. It was observed
at page 404:
22. It is trite that where the eyewitnesses’ account is found
credible and trustworthy, medical opinion pointing to
alternative possibilities is not accepted as conclusive.
Witnesses, as Bentham said, are the eyes and ears of justice.
Hence, the importance and primacy of the quality of the
trial process. Eyewitnesses’ accounts would require a
careful independent assessment and evaluation for their
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credibility, which should not be adversely prejudged,
making any other evidence, including the medical evidence,
the sole touchstone for the test of such credibility. The
evidence must be tested for its inherent consistency and the
.
inherent probability of the story; consistency with the
account of other witnesses held to be creditworthy;
consistency with the undisputed facts; the “credit” of the
witnesses; their performance in the witness box; their
power of observation, etc. Then the probative value of such
evidence becomes eligible to be put into the scales for a
cumulative evaluation.
41. Therefore, the prosecution’s case cannot be rejected
42. to
due to alternative possibilities in the medical evidence.
Dr. Sandeep Narula (PW-11) stated that he found a
laceration of size 0.5 cm x 0.5 cm x 0.5 cm on the left parietal
region of the skull of the accused, which could have been caused
by a blunt weapon. It was submitted that the prosecution has not
explained the injury sustained by the accused, which makes the
prosecution’s case highly suspect. This submission is not
acceptable. It was laid down by the Hon’ble Supreme Court in
Sucha Singh v. State of Punjab, (2003) 7 SCC 643: 2003 SCC (Cri) 1697:
2003 SCC OnLine SC 794 that non-explanation of the injuries by
the prosecution will not affect the prosecution’s case where the
injuries sustained by the accused are superficial or minor. It was
observed at page 655:
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2025:HHC:25492“24. One of the pleas is that the prosecution has not
explained the injuries to the accused. The issue is, if there is
no such explanation, what would be its effect? We are not
prepared to agree with the learned counsel for the defence.
that in each and every case where the prosecution fails to
explain the injuries found on some of the accused, the
prosecution’s case should automatically be rejected,
without any further probe. In Mohar Rai v. State of
Bihar [AIR 1968 SC 1281: (1968) 3 SCR 525: 1968 Cri LJ 1479] it
was observed : (AIR p. 1284, para 6)
“In our judgment, the failure of the prosecution to offer
any explanation in that regard shows that evidence of
the prosecution witnesses relating to the incident is not
true or at any rate not wholly true. Further, those
injuries probably support the plea taken by the
appellants.”
In another important case Lakshmi Singh v. State of
Bihar [(1976) 4 SCC 394: 1976 SCC (Cri) 671] after referring to
the ratio laid down in Mohar Rai case [AIR 1968 SC 1281:
(1968) 3 SCR 525: 1968 Cri LJ 1479] this Court observed: (SCC
p. 401, para 12)“[W]here the prosecution fails to explain the injuries on
the accused, two results follow: (1) that the evidence of
the prosecution witnesses is untrue; and (2) that theinjuries probabilise the plea taken by the appellants.”
It was further observed that: (SCC p. 401, para 12)
“[I]n a murder case, the non-explanation of the injuries
sustained by the accused at about the time of the
occurrence or in the course of an altercation is a very
important circumstance from which the court can draw
the following inferences:
(1) that the prosecution has suppressed the genesis
and the origin of the occurrence and has thus not
presented the true version;
(2) that the witnesses who have denied the presence
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2025:HHC:25492on the most material point, and therefore their
evidence is unreliable;
(3) that in case there is a defence version which
explains the injuries on the person of the accused, it.
is rendered probable so as to throw doubt on the
prosecution’s case.
The omission on the part of the prosecution to explain
the injuries on the person of the accused assumes much
greater importance where the evidence consists of
interested or inimical witnesses or where the defence
gives a version which competes in probability with that
of the prosecution.”
25. In Mohar Rai case [AIR 1968 SC 1281: (1968) 3 SCR 525:
1968 Cri LJ 1479] it is made clear that the failure of the
prosecution to offer any explanation regarding the injuriesfound on the accused may show that the evidence related to
the incident is not true or at any rate, not wholly true.
Likewise, in Lakshmi Singh‘s case [(1976) 4 SCC 394: 1976 SCC
(Cri) 671], it is observed that any non-explanation of the
injuries on the accused by the prosecution may affect the
prosecution’s case. But such a non-explanation mayassume greater importance where the defence gives a
version which competes in probability with that of the
prosecution. But where the evidence is clear, cogent, andcreditworthy and where the court can distinguish the truth
from falsehood, the mere fact that the injuries are notexplained by the prosecution cannot by itself be a sole basis
to reject such evidence, and consequently, the whole case.
Much depends on the facts and circumstances of each case.
These aspects were highlighted by this Court in Vijayee
Singh v. State of U.P. [(1990) 3 SCC 190: 1990 SCC (Cri) 378: AIR
1990 SC 1459]
26. Non-explanation of injuries by the prosecution will not
affect the prosecution case where injuries sustained by the
accused are minor and superficial or where the evidence is
so clear and cogent, so independent and disinterested, so
probable, consistent and creditworthy, that it outweighs the
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effect of the omission on the part of the prosecution to
explain the injuries. As observed by this Court in Ramlagan
Singh v. State of Bihar [(1973) 3 SCC 881: 1973 SCC (Cri) 563:
AIR 1972 SC 2593], the prosecution is not called upon in all
.
cases to explain the injuries received by the accused
persons. It is for the defence to put questions to the
prosecution witnesses regarding the injuries to the accused
persons. When that is not done, there is no occasion for theprosecution witnesses to explain any injury to the person of
an accused. In Hare Krishna Singh v. State of Bihar [(1988) 2
SCC 95: 1988 SCC (Cri) 279: AIR 1988 SC 863], it was observed
that the obligation of the prosecution to explain the injuriessustained by the accused in the same occurrence may not
arise in each and every case. In other words, it is not an
invariable rule that the prosecution has to explain the
injuries sustained by the accused in the same occurrence. Ifthe witnesses examined on behalf of the prosecution are
believed by the court to prove of guilt of the accused beyonda reasonable doubt, the question of the obligation of the
prosecution to explain injuries sustained by the accused will
not arise. When the prosecution comes with a definite case
that the offence has been committed by the accused andproves its case beyond any reasonable doubt, it becomes
hardly necessary for the prosecution to again explain how
and under what circumstances injuries have been inflictedon the person of the accused. It is more so when the injuries
are simple or superficial in nature. In the case at hand, trifleand superficial injuries on the accused are of little
assistance to them to throw doubt on the veracity of the
prosecution’s case, particularly when the accused, whoclaimed to have sustained injuries, has been acquitted.
43. It was held in Thoti Manohar v. State of A.P., (2012) 7 SCC
723: (2012) 3 SCC (Cri) 721: 2012 SCC OnLine SC 449 that non-
explanation of injuries is not always fatal to the prosecution case.
It was observed at page 731:
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29. Quite apart from the above, the non-explanation of
injuries of the accused persons is not always fatal to the
case of the prosecution. In this context, we may usefully
refer to Shriram v. State of M.P. [(2004) 9 SCC 292: 2004 SCC.
(Cri) 1453] wherein it has been held that mere non-
explanation of the injuries by the prosecution may not
affect the prosecution case in all cases and the said principle
applies to cases where the injuries sustained by the accused
are minor and superficial or where the evidence is so clear
and cogent, so independent and disinterested and so
probable, consistent and creditworthy that it far outweighs
the effect of the omission on the part of the prosecution to
explain the injuries. Hence, we repel the said submission of
the learned counsel for the appellants.
44. In the present case, also injuries sustained by the
accused were simple, and the failure to explain the same will not
make the prosecution’s case suspect.
45. It was submitted that the place was not demarcated,
and this makes the prosecution’s case highly suspect. This
submission is also not acceptable. Onkar Nath Sharma (PW-13)
stated that he conducted the demarcation on 19.02.2010 of Khasra
numbers 172 and 173, and he issued a report (Ext.PW-12/C). It was
laid down by this Court in Radha Swami Satsang Beas Vs. State of
H.P. ILR 1984 (HP) 317 that the report given by a revenue officer
while demarcating the land is final, and a fresh demarcation
cannot be conducted unless the previous demarcation is set aside.
It was observed:
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2025:HHC:25492“Be it realised that a Revenue Officer exercising powers
under S.107 of the Act is a statutory authority exercising
powers and discharging functions entrusted to him under
the enactment and that the powers so vested are exercisable.
by him and none other. If the Revenue Officer has acted
without or in excess of jurisdiction or has committed any
illegality or irregularity in the exercise of his jurisdiction,
such excess, error or irregularity is curable in the exercise ofrevisional powers conferred by S.17 of the Act but any
attempt to do so in the purported exercise of powers
conferred by S.12 will be wholly lacking in power, authority
and jurisdiction. It is, therefore, not possible to uphold thesubmission of the learned Advocate General that the
impugned direction ordering fresh demarcation on the basis
that the previous delimitation was not proper could have
been issued by the second respondent in the exercise of thepowers vested in him under S.12 of the Act.
46. Similar is the judgment of the Hon’ble Supreme Court
in State of H.P. Vs. Mangat Ram AIR 1995 Supreme Court 665 wherein
it was held:
“15. It is not denied before us that Assistant Collector II
Grade is a Revenue Officer as defined under Section 4(17)
read with Section 7 (Classification of Revenue Officers).
Therefore, such an Assistant Collector II Grade is the
competent authority to exercise statutory powers under the
Act. He can define the limits of any estate or any holdings,fields, or other portions of any estate.
16. The revisional powers of the Financial Commissioner
could not be exercised merely because the Assistant
Collector, IInd Grade, has stated that the demarcation could
be verified from the Senior Revenue Officer. The revisional
powers of the Financial Commissioner are circumscribed by
the statutory provision.
47. This position was reiterated in Jeet Lal vs. Sita Ram 2002
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H.L.J. 1173, wherein it was held:
“14. In the present case, the plaintiff-petitioner filed a suit
alleging that a part of his land was being encroached upon.
by the defendant. He obtained demarcation from the
competent Revenue Officer (Assistant Collector IInd Grade),
who found that there was no such encroachment. As noticed
earlier, the demarcation report given by the competentRevenue Officer is final unless it is set aside in the appeal.
Section 107 of the HP. Land Revenue Act empowers the
Revenue Officer to demarcate the land and define the
boundaries. In Gulaba vs Hari Ram, 1982 Sim. L.C. 85interpreting the provisions of section 107 of the Revenue
Act, it was observed that the Assistant Collector 2nd Grade is
a competent person to effect the demarcation, and his
report is final unless set aside in appeal. It was alsoobserved that even if the Assistant Collector 2nd Grade
himself states in his report that the demarcation could be
verified by the senior Revenue Officer, such a report cannot
be set aside in the revisional power of the Financial
Commissioner on that ground.”
48. Similarly, it was held by this Court in Shashi Pal vs.
Kuldeep 2018(2) Himachal Law Reporter 1135 that a fresh
demarcation cannot be ordered without setting aside the previous
demarcation. It was observed:
5. Learned Counsel submits that the demarcation report
already placed on record by the defendant cannot be relied
upon, being contrary to the instructions issued by the
Financial Commissioner. Such submissions, however, are
contrary to the law laid down by the Apex Court in State of
H.P. vs. Mangat Ram, (1995) AIR(Supreme Court) 665 and
Radha Swami Satsang Veas vs. State of H.P., (1984) ILR(HP)
317 which has been considered by learned trial Judge while
arriving at a conclusion that unless and until the::: Downloaded on – 31/07/2025 21:24:22 :::CIS
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2025:HHC:25492demarcation conducted earlier is not set aside by
appointing another revenue official, no fresh demarcation
can be ordered. Whether the demarcation report already on
record is contrary to the instructions or the law applicable.
has to be seen by the learned trial Court at an appropriate
stage during the course of further proceedings in the suit.
Therefore, at this stage, when the demarcation report dated
20.12.2010 already exists on record, no fresh demarcation of
the land could have been ordered, more particularly, when
the demarcation conducted previously was acceptable to the
petitioner-plaintiff also. Learned trial Court, therefore, has
rightly dismissed the application filed by the petitioner with
a prayer to appoint a local commissioner for demarcation of
the suit land.
49. Therefore, it was impermissible to carry out the fresh
demarcation without setting aside the demarcation by Onkar Nath
Sharma (PW-13), and no adverse inference can be drawn against
the prosecution for not conducting the demarcation.
50. Dr. R.K. Sharma (PW-4) noted a fracture in the left
temporal region. Section 320, clause seventh of the IPC provides
that fracture or dislocation of a bone or tooth falls within the
definition of a grievous injury. Hence, the injury sustained by
Tilak Raj was grievous, and the learned Trial Court had rightly
convicted the accused of the commission of an offence punishable
under Section 325 of the IPC.
51. It was submitted that the learned Trial Court did not
extend the benefit of the Probation of Offenders Act to the accused
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P a g e | 54
2025:HHC:25492
and the judgment is bad. This submission cannot be accepted.
The injuries were caused to the vital part of the body, and the
.
Medical Officer stated that it was dangerous. Therefore, keeping
in view the nature of injuries and the part of the body where such
injury was caused, the benefit of the Probation of Offenders Act
could not have been granted to the accused.
52. The learned Trial Court had sentenced the accused to
undergo rigorous imprisonment for one year and pay a fine of
₹1000/-which is not excessive, keeping in view the relationship,
injuries and the part of the body where the injuries were inflicted.
Hence, no interference is required with the sentence.
53. No other point was urged.
54. In view of the above, the present appeal fails, and the
same is dismissed.
55. Record of the learned Trial Court be sent back
forthwith, along with a copy of this judgment.
( Rakesh Kainthla )
Judge
31st July 2025
(Ravinder)
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