Himachal Pradesh High Court
Arun Kumar @ Manee vs State Of H.P on 10 January, 2025
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
Neutral Citation No. ( 2025:HHC:2282-DB )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 480 of 2017 a/w Cr.
Appeal No. 192, 337, 382, 623 of 2017
and Cr. Revision No. 114 of 2018
Reserved on: 21.12.2024
Date of Decision: 10.01.2025
Cr. Appeal No. 480 of 2017
1. Arun Kumar @ Manee …Appellant
Versus
State of H.P. …Respondent
Cr. Appeal No. 192 of 2017
2. Pradeep Gupta …Appellant
Versus
State of H.P. …Respondent
Cr. Appeal No. 337 of 2017
3. Anil Kumar @ Sethu …Appellant
Versus
State of H.P. …Respondent
Cr. Appeal No. 382 of 2017
4. Rajeev Kaushal …Appellant
Versus
State of H.P. …Respondent
Cr. Appeal No. 623 of 2017
5. Sunil Kumar @ Charna …Appellant
Versus
State of H.P. …Respondent
Cr. Revision No. 114 of 2018
6. Pradeep Gupta …Petitioner
Versus
State of H.P. …Respondent
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Neutral Citation No. ( 2025:HHC:2282-DB )
Coram
Hon’ble Mr Justice Vivek Singh Thakur, Judge.
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
Cr. Appeal No. 480 of 2017
For the Appellant/State : Ms. Sheetal Vyas, Advocate.
For the Respondent : Mr. J.S. Guleria, Deputy
Advocate General.
Cr. Appeal No. 192, 623 of 2017 & Cr. Revision No. 114 of 2018
For the Appellant/State : Mr. Fariad Singh Virk and Mr.
Dheeraj K. Vashisht, Advocates.
For the Respondent : Mr. J.S. Guleria, Deputy
Advocate General.
: Mr. Ashok Kumar Tyagi,
Advocate for private
respondents in Cr. Appeals
No.192 and 623 of 2017.
Cr. Appeal No. 337 of 2017
For the Appellant/State : Mr. Ajay Kochhar, Sr. Advocate,
with Mr. Vivek Sharma,
Advocate.
For the Respondent : Mr. J.S. Guleria, Deputy
Advocate General.
: Mr. Ashok Kumar Tyagi,
Advocate for private
respondent.
Cr. Appeal No. 382 of 2017
For the Appellant/State : Mr. Sanjeev Kumar Suri,
Advocate.
For the Respondent : Mr. J.S. Guleria, Deputy
Advocate General.
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Neutral Citation No. ( 2025:HHC:2282-DB )
Rakesh Kainthla, Judge
The present appeals are directed against the judgment
dated 27.03.2017, vide which the appellants (accused before
learned Trial Court) were convicted of the commission of offences
punishable under Section 302 read with Section 120B of the Indian
Penal Code (in short ‘IPC‘) and Section 27 of the Arms Act. In
addition to above, appellant-Rajeev Kaushal was also convicted of
the commission of an offence punishable under Section 25 of the
Arms Act, and order dated 07.04.2017, vide which they were
sentenced as under:-
Section Sentence imposed Under Sections 302 and 120B of IPC To undergo rigorous imprisonment for life and to pay a fine of ₹25,000/- each. Under Section 27 of the Arms Act,To undergo rigorous 1959 imprisonment for three years and to pay a fine of ₹5,000/- each. Accused-Rajeev Kaushal is alsoTo undergo rigorous
sentenced under Section 25 of theimprisonment for three years and
Arms Act, 1959 to pay a fine of ₹5,000/-
All the substantive sentences were ordered to run concurrently.
2. The parties shall hereinafter be referred to in the same
manner as they were arrayed before the learned Trial Court for
convenience.
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2. Briefly stated, the facts giving rise to the present
appeals are that the police presented a challan against the accused
for the commission of offences punishable under Sections 302 and
120B of IPC and Sections 25 and 27 of the Arms Act. It was asserted
that Police Post-Mehatpur informed the Police Station Sadar Una
that a shooting incident had taken place in plot No. 12B of
Mehatpur Industrial Area. SI/SHO Kamaldeep (PW50), ASI Maan
Singh (PW28), ASI Anjan Pal, HC Rajiv Kumar, HC Sartaj Singh and
Constable Rajat Kumar went to verify the correctness of the
information in the vehicle bearing registration No. HP-20D-7645,
which was being driven by Rajender Singh. Informant Dharma
Nand (PW15) made a statement (Ext. PW15/A) that he was
employed as a labourer in Jain Oil Mills located in Mehatpur
Industrial Area. Vinod Kumar Jain (since deceased) owned the
factory. Vinod Kumar Jain had another factory located in Jammu;
hence, he used to visit the factory located at Una infrequently.
Accused Pradeep Kumar used to look after the factory in the
absence of Vinod Kumar Jain. The informant Dharma Nand and
other labourers were sitting on the roof of the factory on 14.02.2013
at about 12:30 pm when they heard a gunshot. He and Duben
Prasad @ Pandey (PW16) ran towards the factory gate and saw that
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Neutral Citation No. ( 2025:HHC:2282-DB )
Vinod Kumar was lying on the ground with his face down. Three
persons sped away on a motorcycle. The informant and other
persons found that Vinod had suffered a bleeding injury on his
back. The informant called Pradeep. Pandey, Pradeep, the
informant and Vinod Kumar carried the injured to NFL hospital,
Nangal. Dr Vinay Gulati (PW10) examined Vinod Kumar and
declared him brought dead. He issued the report (Ext. PW10/A).
The statement (Ext. PW15/A) was sent to the police station where
FIR (Ext. PW43/A) was registered. SI/SHO Kamaldeep (PW50)
conducted the investigation. He seized the clothes of the deceased
and wrapped them in a cloth parcel. He sealed the parcel with seven
impressions of seal ‘M’. The seal impression (Ext. PW3/A) was
taken on a separate piece of cloth. The clothes were seized vide
memo (Ext. PW3/B). He conducted the inquest and prepared the
report (Ext. PW1/A). He filed an application (Ext.PW11/A) for
conducting the post-mortem examination of the deceased. Dr
Navneet Kumar (PW11) conducted the post-mortem examination
and issued the report (Ext. PW11/B) stating that the deceased had
died because of a massive haemorrhage leading to shock caused by
a fracture of scapula, fracture of ribs on the right side with
Digitally signed
by KARAN SINGH
GULERIA ruptured right lung, liver and stomach with haemothorax,
Date: 2025.01.10
15:12:14 IST
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Neutral Citation No. ( 2025:HHC:2282-DB )
hemoperitoneum and pneumomediastinum. These injuries could
be caused by a gunshot with a firing range of approximately 2
meters. He preserved the viscera and the pellets and handed them
over to the police official accompanying the dead body. SI-
Kamaldeep (PW50) went to the spot and prepared the spot map
(Ext. PW50/A). He collected the sample of the blood found on the
spot and seized it vide memo (Ext. PW3/D). He obtained the control
sample of the soil and put it in a small box. He sealed and wrapped
the boxes in different parcels (Ext. P18 to Ext. P20). The
photographs (Ext. PA to PE) were taken. SI/SHO recorded the
statements of witnesses as per their versions. Further
investigation was conducted by Surinder Kumar Sharma (PW51).
He interrogated Pardeep Gupta. He called accused Anil Kumar @
Sethu for interrogation based on the information revealed during
the interrogation of Pradeep Gupta. He found that Rajeev Kaushal
and Sunil Kumar @ Charna were staying in Saini Guest House in
Room No.104 based on the information disclosed by Anil Kumar @
Sethu. He went to the guest house, where he found Rajeev Kaushal
and Sunil Kumar. He interrogated them and found the involvement
of Arun Kumar in the incident. He arrested Pradeep Gupta, Anil
Kumar @ Sethu, Sunil Kumar, Rajeev Kaushal and Arun Kumar. He
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visited the factory where accused Pradeep Gupta resided. He seized
a laptop and currency notes worth ₹44,010/- vide memo (Ext.
PW1/C). The laptop, adapter and carrying case were put in a cloth
parcel, and the parcel was sealed with four impressions of seal ‘B’.
The currency notes were wrapped in a separate cloth parcel, and
the parcel was sealed with three impressions of seal ‘B’. Specimen
seal (Ext. PW1/B) was taken on a separate piece of cloth. He joined
Babita Jain (PW42) with the investigation. She produced a list of
papers (Ext PW42/A) stated to have been given by accused Pradeep
Gupta to deceased Vinod Jain. He seized the list vide memo (Ext.
PW1/H). Rajeev Kaushal made a disclosure statement on 15.02.2013
that he had concealed the weapon of offence near Primary School
Dehla under some logs of wood and he could get it recovered. The
statement (Ext. PW1/D) was reduced into writing. Rajeev Kaushal
led the police party to the place where he had concealed the
weapon. He got recovered a country-made 12-bore gun placed in a
plastic bag with two live cartridges and one empty shell kept
underneath the heap of wood. The gun was measured and found to
be 25.5 inches long. Its sketch (Ext. PW1/E) was prepared. The
gun-fired shell and plastic bag were wrapped in a cloth parcel, and
the parcel was sealed with three Impressions of seal ‘A’. Two live
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Neutral Citation No. ( 2025:HHC:2282-DB )
cartridges were placed in a separate piece of cloth parcel, and the
parcel was sealed with three Impressions of seal ‘A’. These were
seized vide memo (Ext. PW1/G). The seal impression (Ext. PW1/F)
was taken on a separate piece of cloth, and the seal was handed
over to witness Ashwani Jain (PW1) after the use. He took
photographs of the spot of recovery (Ext. PD and PE). He prepared
the spot map (Ext. PW51/A). Motorcycle bearing registration No.
HP-20C-2713 was recovered at the instance of accused Sunil
Kumar @ Charna from the parking of Saini Guest House, College
Road Una. The motorcycle and document were seized vide memo
(Ext. PW5/C). Surinder Kumar Sharma (PW51) also seized the entry
register (Ext. PW5/A) of Saini Guest House containing the entry of
the name of Rajeev Kaushal at Sr. No. 261. Register was seized vide
memo (Ext. PW5/B). He searched the accused. He found a mobile
phone with Rajeev Kaushal, which was seized vide memo (Ext.
PW36/E). He also found various articles and a mobile phone in the
possession of Arun Kumar, which were seized vide memo (Ext.
PW36/B). He found various articles and a mobile phone with Sunil
Kumar, which were seized vide memo (Ext. PW36/C). He found two
mobile phones and other articles in the possession of Anil Kumar,
which were seized vide memo (Ext. PW36/D). He searched Pradeep
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Gupta and found two mobile phones, which were seized vide memo
(Ext. PW36/A). He filed an application (Ext. ‘DA’) for conducting
the test identification parade of accused-Rajeev Kaushal, Sunil
Kumar and Arun Kumar, however, accused Rajeev Kaushal, Sunil
Kumar, and Arun Kumar refused to participate in the test
identification parade. An order (Ext. PW51/C) was passed by
learned Judicial Magistrate First Class-II, Una. SI Kamaldeep
(PW50) conducted further investigation. He filed an application
(Ext. PW13/A) for seeking demarcation of the place of incident.
Ashwani Kumar (PW13) prepared the spot map (Ext. PW13/B). He
issued the report (Ext. PW13/D) and jamabandi (Ext. PW13/C).
Kamaldeep (PW50) also filed an application (Ext. PW24/A) before
Tehsildar for the demarcation of the place from where the weapon
of offence was recovered. Rajesh Kumar (PW24) prepared the spot
map (Ext. PW24/B) and issued the jamabandi (Ext.PW24/C). Babita
Jain produced the documents of Jain Oil Mills (Ext. PW50/B to Ext.
PW50/D), which were seized vide memo (Ext. PW14/A). She
produced the bills (Ext. B1 to Ext. B25), which were seized
vide memo (Ext. PW14/B). Kamaldeep filed an application
before learned CJM, Una, for obtaining the specimen signatures of
accused Rajeev Kaushal and Pradeep Gupta. Specimen signatures
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and handwriting (Ext. PW46/S1 to Ext. PW46/S30) were obtained.
SI Kamaldeep filed an application (Ext. PW12/A) before Secretary,
Nagar Panchayat, Mehatpur for obtaining the map to scale of Plot
No.12B, where Jain Oil Mills is located. Ved Prakash (PW12) issued a
map (Ext. PW12/B). The list of debtors (Ext. PW42/A), the entry
(Ext. PW5/A) made on the register, and the specimen and admitted
handwriting were sent to RFSL, Dharamshala for comparison. Dr
Minakshi Mahajan (PW46) compared these documents and issued
the report (Ext. PW45/A) showing that the list of debtors was
written by Pradeep Gupta, who had also put specimen signatures
(Ext. PW46/S1 to Ext. PW46/S30). The handwriting on the register
was that of Rajeev Kaushal, who had written specimen handwriting
(Ext. PW46/S1 to Ext. PW46/S10). The case property was deposited
with the MHC-Ravi Kant (PW29), who deposited them in
Malkhana. He sent the case property to RFSL, Dharamshala. The
result of the analysis (Ext. PW45/B and PX) was issued, showing
that human blood was detected on the metal pellets, which was
insufficient for further examination. Human Blood of the group ‘A’
was detected on the shirt, sweater, inner of Vinod Kumar and blood
lifted from the spot. Human blood was detected on blood-stained
soil, but the result was inconclusive with respect to the blood
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group. The country-made gun was a firearm defined in the Arms
Act. Its mechanism was found in working order. The test-fired
cartridges fired from the country-made gun were compared with
the fired cartridge case, and it was found that the fired cartridge
was fired from the country-made gun. The lead residue was
detected on the sweater, shirt and upper inner. The range of fire
was about two meters. Ten pellets found in a glass vial were lead
pellets. The weight of the individual pellet found in the glass vial
and the weight of the examined individual pellet of the live
cartridge were found to be the same. The pellets could have been
fired from the fired cartridge. It was found during the investigation
that there was a dispute between accsued Pradeep Kumar and the
deceased Vinod Kumar regarding the payment of the dues. Pradeep
Jain had handed over a list of debtors to Vinod Jain, which showed
that an amount of ₹90,00,000/- was to be taken from the debtors;
however, this list was incorrect, and there was a difference of ₹ 20-
25 lakhs. A meeting was held to settle the account between Vinod
Jain and Pradeep Gupta on 30.01.2013; however, differences could
not be resolved. A meeting was scheduled on 14.02.2013 in which
Hari Om, father of Pradeep and Ashwani Jain (PW1) were to
participate. Vinod Jain was also to take ₹7,00,000/- from Hari Om.
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Pradeep Gupta entered into a conspiracy with Anil Kumar and hired
Sunil Kumar, Arun Kumar and Rajeev Kaushal to murder Vinod
Jain. He had paid ₹40,000/- as an advance. All the accused had
talked to each other before the incident, as per the call detail
records. Narender Kumar had sold the gun to Rajeev Kaushal. SI
Kamaldeep obtained the prosecution sanction under the Arms Act
(Ext. PW35/A). He recorded the statements of witnesses as per
their version and handed over the file to SHO Krishan Lal (PW45),
who prepared the challan and the supplementary challan and
presented it in the Court of learned Judicial Magistrate, First Class
Court No. II, who committed it for trial to learned Sessions Judge.
Learned Sessions Judge assigned the matter to learned Additional
Sessions Judge-II, Una (learned Trial Court).
3. Learned Trial Court charged accused Pradeep Gupta
with the commission of offences punishable under Sections 302,
120B and 420 of IPC and Sections 25 and 27 of the Arms Act,
accused Rajeev, Sunil, Arun Kumar and Anil Kumar with the
commission of offences punishable under Sections 302, 120B of
IPC and Sections 25 and 27 of Arms Act and Narender Kumar with
the commission of offences punishable under Sections 25 and 27 of
Arms Act.
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4. The prosecution examined 51 witnesses to prove its
case. Ashwani Jain (PW1) is the cousin of the deceased Vinod Jain,
who had rented the land to him for installing the factory. He (PW1)
was also to attend the meeting scheduled between Vinod Jain and
Pradeep to resolve the differences in the account. Birbal (PW2) is
the witness to the disclosure statement and consequent recovery of
the gun. Anil Dutt (PW3) witnessed the recovery of various articles
from the spot. Chajju Ram (PW4) saw the accused Rajeev Kaushal,
Arun and Anil near the temple before the incident and went to the
factory after coming to know of the shooting incident. Tushar
(PW5) was working as a Manager at Saini Guest House. He
produced the record and witnessed the recovery of the motorcycle.
Naresh Kumar (PW6) is the witness to the recovery of a motorcycle
from the Saini Guest House. Vicky Thakur (PW7) is the owner of
the motorcycle. Rinku (PW8) handed over the motorcycle to Sunil
Kumar as per the direction of Vicky Thakur. Deepak Thakur (PW9)
is the owner of the vehicle, who handed it over to accused Anil @
Sethu at his request. Dr. Vinay Gulati (PW10) was posted as a
Medical Officer who declared that Vinod Jain was brought dead. Dr.
Navneet Kumar (PW11) conducted the post-mortem examination
of the deceased. Ved Prakash (PW12) prepared the location plan of
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the plot. Ashwani Kumar (PW13) was posted as Patwari, who
prepared the spot map of the Jain Oil Mills. Atul Chibber (PW14) is
the witness to the recovery of the documents. Dharmanand (PW15)
and Duben Prasad @ Pandey (PW16) are the eye-witnesses, who
immediately rushed to the spot after hearing the gunshot. Hari Om
(PW17), Madan Puri (PW18), Vipan Kumar (PW19), Anil Kumar
(PW20), and Balraj Kumar (PW47) were shown as debtors in the
list supplied by Pradeep Gupta to Vinod Jain. Constable Narender
(PW21) is the witness to the personal search of accused-Narender.
Constable Rajat Kumar (PW22) carried the statement of
Dharmanand (PW15) to the police station. Arvind Arora (PW23)
developed the photographs of the dead body. Rajesh Kumar (PW24)
was posted as Patwari, who prepared the spot map of the place of
recovery. Constable Sodi Ram (PW25) proved the entry in the daily
diary. HHC-Mohan Lal (PW26) received the information regarding
the gunshot and entered it in the daily diary. HHC Gurpiara (PW27)
carried the special report to CJM and SP Una. SI Man Chand (PW28)
accompanied the dead body to whom the articles were handed over
by the Medical Officer. HHC Ravi Kant (PW29) was posted as MHC,
with whom the case property was deposited. Constable Sushil
Kumar (PW30) and Constable Bijinder Singh (PW31) carried the
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case property to RFSL, Mandi and Dharamshala. Rajesh Kumar
(PW32) was posted as Assistant Director, RFSL, Mandi, who issued
the report of analysis (Ext. PX). Arun Kumar (PW33) was employed
in Jain Oil Mills and proved that Pradeep Gupta was looking after
the work in the absence of Vinod Jain. Satwinder Kumar (PW34)
developed the photographs and transferred the contents of a
Handycam to the CD. Abhishek Jain (PW35) was posted as District
Magistrate Una, who issued the prosecution sanction to prosecute
the accused under the Arms Act. HC Sanjeev Kumar (PW36) is the
witness to the personal search and the recovery of various articles
from the accused. Devender Verma (PW37), Sanjay Kumar (PW38)
and Ganga Narain Jha (PW48) are the Nodal Officers, who provided
the call detail records. HC Dharam Pal (PW39) was working as a
Nodal Officer in the SP Office Una, who printed out the email
received from the mobile operators. Pravesh Kumar (PW40) proved
that the mobile phone was being used by Rajeev Kaushal, who used
to call Pravesh’s sister Pooja (PW44). Rahul (PW41) did not
support the prosecution case. Babita Jain (PW42) is the wife of
Vinod Jain, who produced the list of sundry debtors and other
documents. Karan Singh Guleria (PW43) signed the FIR and
witnessed the search of the accused. Kumari Puja (PW44) is the
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witness to the use of mobile phone, however, she turned hostile.
Krishan Lal (PW45) prepared the challan. Dr Minakshi Mahajan
(PW46) was working as an Assistant Director who issued the report
of handwriting analysis. SI Saravjeet Singh (PW49) reached the
factory after coming to know about the shooting incident.
Inspector Kamaldeep (PW50) and Surender Kumar Sharma (PW51)
investigated the case.
5. The accused-Arun Kumar, admitted in his statement
recorded under Section 313 of Cr.P.C. that he was arrested by the
police on 15.02.2013. He stated that he had refused to participate in
the test identification parade as he was already shown to the
witnesses. A false case was planted against him, and he was
innocent. Accused Sunil Kumar admitted that he was arrested on
15.02.2013 and that he had refused to participate in the test
identification parade. He stated that he was already shown to the
witnesses. He claimed that he was innocent and he was falsely
implicated. Accused Rajeev Kaushal also admitted that he was
arrested on 15.02.2013 and that he had refused to participate in the
test identification parade. He stated that he was already shown to
the witnesses. He denied that he had made any entry in the
register. He admitted that his handwriting was obtained before the
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learned Chief Judicial Magistrate. He stated that a false case was
made against him. He was not present in Una on 14.02.2013, and he
was present in Chandigarh. Accused Narender Kumar admitted
that his personal search was conducted by the police. He stated
that a false case was registered against him. He worked in a brick
kiln and had no concern with the sale of arms. Accused Pradeep
Gupta stated that he was present in the factory and had helped to
carry the deceased Vinod Jain to the hospital. He admitted that
police visited the hospital and recorded the statement of
Dharmanand. He admitted that Dr Vinod Gulati declared Vinod Jain
as brought dead. He admitted that he knew accused Anil Kumar @
Sethu. He claimed that Anil’s taxi was being used by the workers
and owner of the factory, namely Vinod Jain. He had no personal
acquaintance with accused Anil Kumar. He admitted that Duben
Pandy and others rushed towards the gate and found Vinod Jain
lying near the factory gate, who was taken to NFL Hospital. He
claimed that the taxi of Anil @ Sethu was being taken on hire in
connection with the works of the factory. He admitted that a laptop
and currency notes worth ₹44,010/- were found in his residence,
but he denied that these were seized by the police in his presence.
He denied that he had given any list to Vinod Jain or Babita Jain had
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produced the list before the police. He admitted that his mobile
phone was seized by the police. He admitted that his signatures
were obtained before the learned Chief Judicial Magistrate, Una. He
claimed that the list was prepared on the papers on which his
signatures were obtained by the police. He was regularly depositing
the money in connection with the business of the factory in the
account of Vinod Jain. He had deposited around ₹ 1,50,00,000/- in
the bank between 13.01.2013 to 14.02.2013. He had also deposited
the money in the account of the factory on 12/13.02.2013. A false
case was made against him at the instance of Ashwani Jain, who
got monetary benefits and did not make any payment to any
person. Accused Anil Kumar @ Sethu admitted that he was known
to Pradeep Gupta. His taxi was being used for the factory work by
the owner. He was called by Surender Sharma on 14.02.2013 at 8:00
pm for inquiry and was arrested on 15.02.2013. His phone was
taken in possession on 14.02.2013. A false case was made against
him at the instance of Babita Jain because amount was due towards
the factory. His taxi was being used by Babita Jain and Vinod Jain.
They had no intention of making the payment, and he was falsely
implicated in the present case to avoid the payment. The
statements of 16 witnesses were recorded in defence.
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6. Learned Trial Court held that eye-witnesses Dharma
Nand (PW15) and Duben Prasad (PW16) saw accused-Rajeev
Kaushal, Sunil Kumar and Arun Kumar speeding away from the
spot in a motorcycle. They were also seen by Chhajju Ram (PW4)
before the incident. They were duly identified in the Court by the
witnesses. Accused Rajeev Kaushal got recovered a gun by making
a disclosure statement. The gun was used for firing, as per the
report of the FSL. Accused-Rajeev Kaushal had stayed in Saini
Guest House and made an entry in the register. His handwriting
matched the entries in the register as per the report of Dr.
Minakshi Mahajan (PW46). Accused Rajeev Kaushal had demanded
a motorcycle from Vicky Thakur. This motorcycle was handed over
by Rinku to Sunil @ Charna. The motorcycle was recovered from
Saini Guest House. These circumstances duly established the
involvement of accused Rajeev Kaushal, Sunil and Anil in the
incident. They had refused to participate in the test identification
parade. They were duly identified by the eye-witnesses before the
police and in the Court. Hence, accused Rajeev Kaushal, Arun
Kumar and Sunil Kumar were held liable for the commission of
murder. Accused Rajeev Kaushal was proved to be in possession of
a firearm. The prosecution sanction was issued by Deputy
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Commissioner, Abhishek Jain to prosecute him; hence, accused
Rajeev Kaushal was convicted of the commission of offences
punishable under Section 302 read with Section 120-B of IPC and
Sections 25 and 27 of the Arms Act, Arun Kumar and Sunil Kumar
were also convicted of the commission of offences punishable
under Section 302 read with Section 120B of IPC and Section 27 of
Arms Act.
7. Learned Trial Court further held that accused Pradeep
Gupta was managing the affairs of the firm. He had handed over a
list of debtors (Ext. PW42/A) to Vinod Jain, which was produced by
Babita-wife of the deceased. He did not allow Babita to talk to
anyone in the hospital. The accounts were to be settled between
Vinod Jain and Pradeep Gupta. Accused Pradeep Gupta had made
inquiries about the arrival of Vinod Jain to Una. He was the only
person who knew about the arrival of Vinod Jain. The call details
between Pradeep Gupta and accused, Anil @ Sethu, showed that
they were in touch with each other. Accused Anil @ Sethu was in
touch with Sunil, and Sunil was in touch with Rajeev Kaushal.
These circumstances showed that Pradeep Gupta and Anil @ Sethu
knew each other. Pradeep Gupta used to avail the services of Anil
Kumar. The call detail records were not supported by the
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certificate under Section 65B of the Indian Evidence Act and could
not be used as a legally admissible piece of evidence. However,
there was other evidence to show that all the accused were in touch
with each other, and they had entered into a conspiracy to murder
Vinod Jain. The evidence led by the prosecution to prove that
Narender had sold the gun to Rajeev was not satisfactory;
therefore, the learned Trial Court acquitted accused Narender
Kumar of the commission of an offence punishable under Section
25 of the Arms Act and Pradeep Gupta of the commission of an
offence punishable under Section 420 of IPC. Learned Trial Court
convicted and sentenced the rest of the accused as aforesaid.
8. Being aggrieved from the judgments and orders passed
by the learned Trial Court, the accused have preferred separate
appeals.
9. In the appeal filed by Rajeev Kaushal, it has been
asserted that the learned Trial Court failed to properly appreciate
the evidence on record. The evidence was appreciated in a slip-
shod and perfunctory manner. The case was based upon
circumstantial evidence, and the circumstances were not proved on
record. The prosecution examined interested witnesses, and their
testimonies contradicted each other. The learned Trial Court erred
22
Neutral Citation No. ( 2025:HHC:2282-DB )
in relying upon their testimonies. Learned Trial Court considered
inadmissible evidence while convicting the accused. The provisions
of Sections 25 and 27 of the Arms Act were wrongly construed. The
benefit of the Probation of Offenders Act was not granted to the
accused. It was prayed that the present appeal be allowed and the
judgment passed by the learned Trial Court be set aside.
10. In an appeal filed by Sunil Kumar @ Charna, it has been
asserted that the judgment of the learned Trial Court is based upon
surmises and conjectures, which is against the law and the facts.
The reliance was placed upon inadmissible evidence, which
materially prejudiced the accused. There were material
contradictions in the statements of prosecution witnesses, and
they had materially improved upon their earlier version. The
statements of the prosecution witnesses were highly improbable;
therefore, it was prayed that the present appeal be allowed and the
judgment and order passed by the learned Trial Court be set aside.
11. In an appeal filed by accused Arun Kumar, it was
asserted that the case is based upon circumstantial evidence and
the circumstances leading to the guilt of the accused were not
established. Signatures of the accused were obtained by putting
him in fear, and these signatures violate Article 20(3) of the
23
Neutral Citation No. ( 2025:HHC:2282-DB )
Constitution of India. The disclosure statement was recorded after
subjecting the accused to torture, and such a statement is not
admissible. The prosecution relied upon the interested and
untrustworthy witnesses. Learned Trial Court erred in relying upon
such evidence. Two versions appeared on record, and the benefit of
the same should have been extended to the accused; therefore, it
was prayed that the present appeal be allowed and the judgment
and order passed by the learned Trial Court be set aside.
12. In the appeal filed by Pradeep Gupta, it was asserted
that the learned Trial Court failed to properly appreciate the
evidence on record. There was no evidence against Pradeep Gupta
to involve him in the present case. He was falsely implicated by the
police at the instance of Ashwani Jain (PW1) and Babita Jain
(PW42). The police had not seized the mobile phones of Babita
Jain, Ashwani Jain and Duben Prasad, which was material. The
learned Trial Court acquitted accused, Pradeep Gupta, of cheating
and the motive to murder Vinod Jain was not established. There
were discrepancies in the various documents. The inquest report
did not support the prosecution version. The genesis of the
incident was suppressed, and a new version was propounded
before the Court. Duben Pandey claimed that he had seen Vinod
24
Neutral Citation No. ( 2025:HHC:2282-DB )
Jain talking to someone on his mobile phone. He had also seen
Vinod Jain getting shot; however, FIR was not lodged at his
instance but at the instance of Dharma Nand (PW15). All the
recovery witnesses were not examined, and an adverse inference
has to be drawn against the prosecution. Pradeep Gupta was taken
to the police post in Mehatpur on 14.02.2013 but was not produced
before the jurisdictional Magistrate on 15.02.2013. The
investigation conducted by the police was not fair. The application
for police remand does not show that the document containing the
list of the debtors was seized by the police, which shows that the
document is forged. Accused Pradeep Gupta used to hire the
services of Anil @ Sethu, and the conversation between them was
normal in the course of business. The police had not seized the
mobile phone of Ashwani Jain. The certificate under Section 65B of
the Indian Evidence Act was not annexed to the call detail record,
and the Trial Court erred in relying upon the same. There was a
discrepancy in the CD played in the Court, which showed the date
of recording as 16.02.2013 at 1:00 pm, which is contrary to the
prosecution case. The expert had not found the markings of firing
in the pellet, and it was difficult to connect it to the gun recovered.
The prosecution’s evidence that the money was paid by the debtors
25
Neutral Citation No. ( 2025:HHC:2282-DB )
to Pradeep Jain was not supported by the documents produced by
them. A fabricated false list of debtors was created to raise
suspicion regarding the irregularities in the account. The
statement of MHC was not recorded on the date of deposit, and
there was no mention of any laptop or recovery of ₹44,010/-.
Babita Jain had given a different version in her statement recorded
under Section 161 Cr.P.C, with which she was duly confronted. Jain
Oil Mills had two accounts, out of which one was a CC Account and
the other was a current account. Vinod Jain had opened three loan
accounts. Pradeep Gupta was only making the cash deposits in one
account. Only Vinod Jain could have withdrawn the amount from
the account of the mill. Vinod Jain was transferring the money
from SBI Mehatpur to SBI Branch Jammu. The money was being
recovered after the death of Vinod Jain from the debtors. The
prosecution version that there was a dispute regarding the
payment of the money, which led the accused Pradeep Jain to
engage the shooters to kill the deceased, was not proved; therefore,
it was prayed that the present appeal be allowed and the judgment
and order passed by learned Trial Court be set aside.
13. In the appeal filed by Anil Kumar @ Sethu, it has been
asserted that the judgment has been passed in violation of settled
26
Neutral Citation No. ( 2025:HHC:2282-DB )
principles of criminal jurisprudence. Learned Trial Court convicted
the accused wrongly by ignoring the evidence. There was no
evidence against the accused to connect him with the commission
of crime. The judgment was passed on conjectures and surmises.
There was no proof of the involvement of the accused. The only
evidence led by the prosecution was to show that accused-Anil had
dropped Pradeep Gupta in a taxi at Mehatpur Chowk district Una
sometime before Vinod Jain was shot at Mehatpur. This
circumstance by itself cannot constitute a criminal conspiracy
between Pradeep Gupta and the accused. The accused was plying a
taxi, which was being frequently used by Pradeep Gupta for his
business purposes. The call detail records were inadmissible in the
absence of the certificate. The call detail record from the mobile
phone was also not produced to establish the prosecution version.
Therefore, it was prayed that the present appeal be allowed and the
judgment and order passed by the learned Trial Court be set aside.
14. Babita Jain filed an application for the release/supply of
data on the sale and purchase of M/s Jain Oil Mills from the Laptop
impounded by the police and the release of ₹ 44,010/–and an Acer
Laptop. This application was allowed by the learned Trial Court
27
Neutral Citation No. ( 2025:HHC:2282-DB )
vide order dated 05.04.2018, and SHO was directed to supply Babita
Jain with a soft copy of the information.
15. Being aggrieved from the order passed by the learned
Trial Court, the present revision has been filed asserting that no
one has a right to get the articles seized by the police released
during the investigation. No notice was ever served upon the
accused, Pradeep Gupta, to contest the application. Babita Jain had
filed two applications for releasing the cash and laptop, which were
dismissed, and she could not have pursued the present application.
The laptop did not belong to Babita Jain and was seized from the
petitioner; therefore, it was prayed that the order dated 05.04.2018
passed by learned Additional Sessions Judge-II be quashed and set
aside.
16. We have heard Ms Sheetal Vyas, learned counsel for
accused Arun Kumar @ Manee, Mr Fariad Singh Virk and Mr
Dheeraj K. Vashisht, learned counsel for the accused Pradeep Gupta
and Sunil @ Charna, Mr Ajay Kochhar, learned Sr. Advocate
assisted by Mr Vivek Sharma, learned counsel for the accused-
Anil@ Sethu, Mr Sanjeev Kumar Suri, learned counsel for the
accused-Rajeev Kaushal, Mr Ashok Tyagi, learned counsel for Ms
28
Neutral Citation No. ( 2025:HHC:2282-DB )
Babita Jain and Mr J.S. Guleria, learned Deputy Advocate General,
for the respondent/State.
17. Ms Sheetal Vyas, learned counsel for the accused-Arun
Kumar, submitted that the learned Trial Court erred in relying
upon the prosecution case. The statements of Dharma Nand
(PW15) and Duben Prasad (PW16) contradicted each other on
material particulars. The prosecution’s evidence regarding the
identification of the accused was unsatisfactory. Certificate under
Section 65(B) of the Indian Evidence Act was not annexed to the
call detail records, and no reliance could have been placed upon the
call detail records. She relied upon the judgments of Musheer Khan
@ Badshah Khan & Anr vs State Of M.P, 2010 (2) SCC 748, D.
Gopalakrishnan vs Sadanand Naik & Ors, 2005(1) SCC 85 and
Malkhan Singh And Anr. vs State of U.P., 1975 (3) SCC 311 in support
of her submission.
18. Mr. Fariad Singh Virk and Mr. Dheeraj K. Vashisht,
learned counsel for accused Pradeep Gupta and Sunil @ Charna,
submitted that there is no evidence to show the criminal
conspiracy between him and the other accused. The prosecution
case is not proved against the main accused, and the charge of
conspiracy is also not established. The prosecution witnesses were
29
Neutral Citation No. ( 2025:HHC:2282-DB )
duly confronted with their previous statements. They made
material improvements in their testimonies. Learned Trial Court
erred in releasing the data to Babita Jain. The laptop was recovered
from the possession of accused-Pradeep Gupta. Therefore, he
prayed that the present appeal and the revision be allowed and the
judgment and orders passed by the learned Trial Court be set aside.
19. Mr. Ajay Kochhar, learned Senior Counsel for the
accused-Anil Kumar @ Sethu, submitted that it is an admitted case
of the prosecution that the vehicle of Anil Kumar was engaged by
the factory for official purposes. Pradeep Gupta was looking after
the affairs of the factory, and his travelling in the vehicle of Anil
Kumar cannot constitute a conspiracy. The certificate under
Section 65B was not annexed to the call detail record, and the same
is inadmissible. He relied upon the judgment of the Hon’ble
Supreme Court in Sundar @ Sundarrajan V. State, 2023 (5) SCR 1016,
in support of his submission.
20. Mr. Sanjeev Kumar Suri, learned counsel for accused
Rajeev Kaushal, submitted that the disclosure statement is not duly
proved as per the law. There are various contradictions in the
statements of the witnesses. In any case, the mere statement under
Section 27 of the Indian Evidence Act is not sufficient to implicate a
30
Neutral Citation No. ( 2025:HHC:2282-DB )
person with the commission of murder. Therefore, he prayed that
the present appeal be allowed and the judgment and order passed
by the learned Trial Court be set aside.
21. Mr. J.S. Guleria, learned Deputy Advocate General for
the respondent/State, supported the judgment and order passed by
the learned Trial Court. He submitted that the statements of the
eyewitnesses are natural and consistent. Any improvement in the
testimony of Duben Prasad @ Pandey cannot be used to discard the
testimony of Dharmanand (PW15), whose version is duly
supported by the FIR. The recovery of the register was duly proved.
The reports of RFSL, Mandi and Dharamshala showed that the
cartridge was fired from the pistol, and the pellets recovered from
the body of Vinod Jain could have been fired from the pistol. The
presence of the accused was established by the testimony of Chajju
Ram (PW4) near the place of the incident before the shooting. They
had stayed in Saini Guest House, and the motorcycle was recovered
from their possession. It was proved that the motorcycle was
handed over to Charna at the instance of Rajeev Kaushal, which
proved the prosecution version that the shooters came in a
motorcycle and sped away after shooting Vinod Jain. The
prosecution witnesses proved that the list of debtors prepared by
31
Neutral Citation No. ( 2025:HHC:2282-DB )
Pradeep Jain was incorrect. The list showed a greater liability than
was due, and the remaining amount was misappropriated by
Pradeep Gupta. This was a cause of dispute between him and Vinod
Jain. Only Pradeep Gupta was aware of the fact that Vinod Jain
would be visiting the factory on the date of the incident. He had got
down at Mehatpur Chowk at some distance from the factory, for
which no proper explanation was provided by him. All these
circumstances point to the conspiracy between accused Pradeep
Gupta and the other accused. Learned Trial Court had rightly held
him and Anil guilty of criminal conspiracy. Therefore, he prayed
that the present appeal be dismissed.
22. Mr. Ashok Kumar Tyagi, learned counsel for Babita Jain,
adopted the submissions of Mr. J.S. Guleria, learned Deputy
Advocate General, and submitted that no interference is required
with the judgment and order passed by the learned Trial Court.
23. We have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
24. The prosecution has mainly relied upon the statements
of Dharma Nand (PW15) and Duben Prasad @ Pandy (PW16) to
prove the incident. Dharma Nand (PW15) stated that he and Pandey
were present on the roof of the factory at Mehatpur on 14.02.2013.
32
Neutral Citation No. ( 2025:HHC:2282-DB )
They heard the noise of gunfire. He came down. Pandey followed
him. He heard a noise that somebody had shot Vinod Jain. When he
reached the factory gate, he found Vinod Jain lying in injured
condition. He noticed three persons fleeing on the motorcycle who
were present in the Court. Pradeep Gupta also came outside. He
(Dharmanand), Duben Pandey and Pradeep took Vinod Jain to the
hospital in his (Vinod’s) car. The doctor declared that Vinod Jain
was dead. The police visited the spot and recorded his statement.
He identified three persons who had shot Vinod Jain on 14.02.2013.
Arun Kumar was driving the motorcycle. Rajeev Kaushal had used
the gun for shooting. He was sitting in the middle and was holding
the gun, and Sunil was the pillion rider.
25. Duben Prasad @ Pandey stated that the factory was
closed on 02.02.2013, and the entire product was sold. Vinod Jain
came to the factory on 14.02.2013 at about 11:30 am. He and his
fellow labourers were sitting on the roof of the factory. Vinod Jain
came near the gate. He was talking on his mobile. He came out of
the gate and the factory. One boy enquired if this was the factory of
Jain. He (Duben Prasad) replied in the affirmative. He (Duben
Prasad) identified the boy as the accused present in the Court.
Vinod Jain had gone outside, so he (Duben Prasad) was under the
33
Neutral Citation No. ( 2025:HHC:2282-DB )
impression that the boy would talk to him. Vinod opened the front
door of the left side of his vehicle. The boy took out the gun from
his back and fired at Vinod Jain. He noticed one red and blue
motorcycle on which two persons were sitting. The boy who had
shot Vinod ran towards the motorcycle and sat in the middle. All
the three boys ran away. Duben Prasad and others rushed towards
the gate and found Vinod lying on the ground. Blood was oozing
from his mouth. Pradeep Gupta also reached the spot. He,
Dharmanand and Pradeep took Vinod to NFL hospital. There was a
dispute between Vinod Jain and Pradeep Gupta about the money.
Pradeep Gupta had asked him to enquire whether Vinod would be
coming to Mehatpur or not. He talked to his brother in Jammu,
who disclosed that Vinod Jain and his wife had left in the morning
for Mehatpur. He conveyed this information to Pradeep Gupta.
Pradeep informed him telephonically that he was coming in the car
of Sethu and he should be taken from Mehatpur Chowk. He went to
Mehatpur Chowk and took Pradeep Gupta on a motorcycle at 12:00
noon. He identified the accused at the police station on 19.02.2013.
The person who had killed Vinod was Rajeev. Arun was driving the
motorcycle, and Sunil was the pillion rider. All of them were
present in the Court.
34
Neutral Citation No. ( 2025:HHC:2282-DB )
26. A perusal of the testimonies of these two witnesses
shows that both of them were present on the roof of the factory on
14.02.2013 at about 12:25 pm. Both of them ran towards the gate
after hearing the gunshot. Dharmanand (PW15) has not stated
anything about a boy enquiring if this was the factory of Jain,
Vinod opening the front door of his car, Rajeev shooting at Vinod,
and shooter Rajeev boarding the motorcycle. Dharmanand (PW15)
has categorically stated that when he reached the factory gate, he
found Vinod Kumar in an injured condition and three persons
fleeing on the motorcycle. He also stated that Duben Prasad (PW16)
was behind him (Dharmanand). Therefore, the testimonies of both
these witnesses cannot be correct. If Dharmanand (PW15) was
unable to see the incident of the shooting in detail and the events
before the shooting, it is not explained how Duben Prasad @
Pandey could have witnessed these incidents.
27. Testimony of Dharma Nand (PW15) is duly corroborated
by the statement (Ext. PW15/A) made by him on the same day, in
which it was mentioned that he was sitting on the roof of the
factory on 14.02.2013 at 12:30 pm when he heard the gunshot. He
and Pandey reached near the factory gate and saw that Vinod was
lying on the ground. A motorcycle carrying three persons sped
35
Neutral Citation No. ( 2025:HHC:2282-DB )
away towards the chowk. He found that Vinod was shot and he had
sustained bleeding injuries. Thus, the initial version also shows
that the informant Dharma Nand had only seen Vinod in an injured
condition and a motorcycle carrying three persons speeding away
from the spot. This was also natural because Dharmanand or any
other labourer would have rushed towards the gate only after
hearing the gunshot. Hence, the testimony of Duben Prasad @
Pandey has to be discarded that he had seen a boy shouting that the
factory belonged to Jain, Vinod Jain opening the door, Rajeev
shooting at Vinod Jain and boarding the motorcycle. These are
material improvements in the testimony of Duben Prasad and
cannot be believed.
28. Dharmanand (PW15) stated in his cross-examination
that he had noticed Vinod lying in front of the factory gate and the
accused fleeing on the motorcycle towards Mandir Chowk. He
admitted that he had not given any description/identification of
the accused. He had seen Vinod in the factory at 11:30 am on
14.02.2013. Police did not record the statement of Babita in his
presence. The police prepared the site plan, took the photographs,
and left the spot. He was called to the police station on 19.02.2013.
He denied that the gate of the factory is not visible from the roof.
36
Neutral Citation No. ( 2025:HHC:2282-DB )
He did not know the accused personally. He denied that he had not
seen anything and had disclosed the names of the accused at the
instance of the police. He admitted that he had not told the police
about the accused holding the gun in his hand. He admitted that
there is a compound of the factory between the stairs and the gate.
There is a transformer on the left side of the factory gate. He used
to reside inside the factory. Police had called him on 19.02.2013.
Two-three officials were present in the vehicle in which he had
gone to the police station. He denied that he was making a false
statement under the pressure of Babita.
29. It was submitted that this witness has materially
improved upon his earlier version because he has mentioned that
one accused was holding the gun in his hand, which fact was not
mentioned in the statement recorded under Section 154 of Cr.P.C.
The mere fact that the witness has not mentioned the gun in the
hands of one of the persons riding the motorcycle will not make his
testimony doubtful. It was laid down by the Hon’ble Supreme Court
in Rattan Singh v. State of H.P., (1997) 4 SCC 161: 1997 SCC (Cri) 525
that the FIR is not a chronicle of every detail and omission of
wresting of the gun from it is not sufficient to discard the
prosecution case. It was observed at page 165:
37
Neutral Citation No. ( 2025:HHC:2282-DB )
“9. The learned counsel for the appellant made an
endeavour to persuade us to concur with the Sessions
Judge’s view that the omission (in the first information
statement) regarding the wresting of the gun from the
appellant is enough to conclude that the said part of the
story is a later improvement. The omission of the said detail
is there in the first information statement, no doubt. But
criminal courts should not be fastidious with mere
omissions in the first information statement since such
statements cannot be expected to be a chronicle of every
detail of what happened nor to contain an exhaustive
catalogue of the events which took place. The person who
furnishes first information to authorities might be fresh
with the facts, but he need not necessarily have the skill or
ability to reproduce details of the entire story without
anything missing therefrom. Some may even miss
important details in a narration. Quite often, the police
officer who takes down the first information would record
what the informant conveys to him without resorting to any
elicitatory exercise. It is a voluntary narrative of the
informant without interrogation, which usually goes into
such a statement. So, any omission therein has to be
considered along with the other evidence to determine
whether the fact so omitted never happened at all.
(Vide Pedda Narayana v. State of A.P. [(1975) 4 SCC 153: 1975
SCC (Cri) 427: AIR 1975 SC 1252]; Sone Lal v. State of
U.P. [(1978) 4 SCC 302: 1978 SCC (Cri) 587: AIR 1978 SC
1142]; Gurnam Kaur v. Bakshish Singh [1980 Supp SCC 567:
1981 SCC (Cri) 496: AIR 1981 SC 631].)
30. It was held in Sat Pal v. State of Punjab, 1995 Supp (4) SCC
1: 1996 SCC (Cri) 11 that non-mentioning of the user of the axe in
the FIR cannot be used to discard the prosecution case. It was
observed at page 4:
“9. Having considered the impugned judgments in the light
of the evidence on record, we are in complete agreement
with the High Court that the trial court was not at all
38
Neutral Citation No. ( 2025:HHC:2282-DB )justified in recording the acquittal of Sat Pal on the basis of
the findings quoted earlier. In the FIR that was lodged by
Bant Singh within two hours of the incident, he categorically
stated that while Janta Singh was lying on the ground, Sat
Pal gave axe blows on his neck as also on the left side of his
chest. In the course of the trial also, Bant Singh stuck to his
above version and gave further details regarding the mode of
the user of the axe. It was not expected of Bant Singh, nor
was it necessary to give such minute details in the FIR. The
finding of the trial court, as earlier quoted, for brushing
aside the evidence of PW 2 as against Sat Pal must,
therefore, be held to be perverse. For the self-same reason,
the finding of the trial court for discarding the evidence of
PW 6, in view of his omission to detail the manner of user of
the axe by Sat Pal in his statement recorded under Section
161 CrPC, cannot be sustained for it was not a material
omission amounting to contradiction.”
31. It was held in State of M.P. v. Ramjan Khan, 2024 SCC
OnLine SC 3070 that the FIR is meant to be brief and not an
encyclopedia of all the events. It was observed:
“11. FIR is not an encyclopedia disclosing all facts and details
relating to the entire prosecution case. (See the decisions
in Superintendent of Police, CBI v. Tapan Kumar Singh (2003) 6
SCC 175; State of UP v. Naresh (2011) 4 SCC 324; Lalitha
Kumari v. Government of UP (2014) 2 SCC 1, and Amish
Devgan v. UOI (2021) 1 SCC 1).
12. It is true that the aforementioned decisions would
undoubtedly reveal the position that an FIR is not meant to
be a detailed document containing a chronicle of all intricate
and minute details.
13. Even after referring to the decisions mentioned above, we
think it equally relevant to refer to the decision of this Court
in Dharma Rama Bhagare v. State of Maharashtra (1973) 1 SCC
537. It was held therein thus:–
“The first information report, it may be pointed out, is
never treated as a substantive piece of evidence. It can
39
Neutral Citation No. ( 2025:HHC:2282-DB )only be used for corroborating or contradicting its maker
when he appears in court as a witness.”
14. There can be no doubt with respect to the position that
the prime object of FIR, from the point of view of the
informant, is to set the criminal law in motion and, from the
point of the investigating authorities, is to obtain
information about the alleged activity so as to enable to take
suitable steps to trace and book the guilty. Thus, it can be
said that FIR is an important document, though not a
substantial piece of evidence, and may be put in evidence to
support or contradict the evidence of its maker, viz., the
informant. Whether the omission(s) is one which seriously
impeaches the credibility of the witness and is sufficient to
reject the testimony of the informant would depend upon
the question whether it is of an important fact and whether
that fact was within the knowledge of the informant, going
by the case of prosecution unravelled through the witness
concerned.
15. Thus, the position with respect to FIR is clear from the
decisions referred supra that even though it is not meant to
be an encyclopedia containing chronicle of all intricate and
minute details, it could be used to corroborate its maker
under Section 157 of the Evidence Act or to contradict its
maker viz., the informant under Section 145 of the Evidence
Act to establish whether he is a trustworthy witness or not.”
32. Thus, the omission to mention the gun in the hands of
one of the riders of the motorcycle will not make the testimony of
Dharmanand doubtful.
33. The presence of this witness was not disputed in the
cross-examination. It was suggested to him that when he came
down after hearing gunshots with Pandey and Pradeep, he noticed
Vinod lying in front of the factory gate, and the accused fleeing on
40
Neutral Citation No. ( 2025:HHC:2282-DB )
the motorcycle towards Mandir Chowk. This was a positive
suggestion made by the accused. This suggestion shows the
presence of this witness on the spot; his seeing the deceased Vinod
in an injured condition and the accused fleeing on the motorcycle
is admitted by the accused. It was laid down by the Hon’ble
Supreme Court in Balu Sudam Khalde v. State of Maharashtra, (2023)
13 SCC 365: 2023 SCC OnLine SC 355 that the suggestion put to the
witness can be taken into consideration while determining the
innocence or guilt of the accused. It was observed at page 382:-
“34. According to the learned counsel, such suggestions
could be a part of the defence strategy to impeach the
credibility of the witness. The proof of guilt required of the
prosecution does not depend on the satisfaction made to a
witness.
35. In Tarun Bora v. State of Assam [Tarun Bora v. State of
Assam, (2002) 7 SCC 39: 2002 SCC (Cri) 1568], a three-judge
Bench of this Court was dealing with an appeal against the
order passed by the Designated Court, Guwahati, in TADA
Sessions case wherein the appellant was convicted under
Section 365IPC read with Sections 3(1) and 3(5) of the
Terrorist and Disruptive Activities (Prevention) Act, 1987.
36. In Tarun Bora case [Tarun Bora v. State of Assam, (2002) 7
SCC 39: 2002 SCC (Cri) 1568], this Court, while considering
the evidence on record, took note of a suggestion which was
put to one of the witnesses and considering the reply given
by the witness to the suggestion put by the accused, arrived
at the conclusion that the presence of the accused was
admitted. We quote with profit the following observations
made by this Court in paras 15, 16 and 17, respectively, as
under : (Tarun Bora case [Tarun Bora v. State of Assam, (2002)
7 SCC 39: 2002 SCC (Cri) 1568], SCC pp. 43-44)
41
Neutral Citation No. ( 2025:HHC:2282-DB )“15. The witness further stated that during the assault,
the assailant accused him of giving information to the
army about the United Liberation Front of Assam (ULFA).
He further stated that on the third night, he was carried
away blindfolded on a bicycle to a different place, and
when his eyes were unfolded, he could see his younger
brother Kumud Kakati (PW 2) and his wife Smt Prema
Kakati (PW 3). The place was Duliapather, which is about
6-7 km away from his Village Sakrahi. The witness
identified the appellant, Tarun Bora, and stated that it is
he who took him in an Ambassador car from the
residence of Nandeswar Bora on the date of the incident.
16. In cross-examination, the witness stated as under:
‘Accused Tarun Bora did not blind my eyes, nor he
assaulted me.’
17. This part of the cross-examination is suggestive of the
presence of accused Tarun Bora in the whole episode.
This will clearly suggest the presence of the accused,
Tarun Bora, as admitted. The only denial is that the
accused did not participate in blind-folding the eyes of
the witness nor assaulted him.”
37. In Rakesh Kumar v. State of Haryana [Rakesh
Kumar v. State of Haryana, (1987) 2 SCC 34: 1987 SCC (Cri)
256], this Court was dealing with an appeal against the
judgment of the High Court affirming the order of the
Sessions Judge whereby the appellant and three other
persons were convicted under Section 302 read with Section
34IPC. While reappreciating the evidence on record, this
Court noticed that in the cross-examination of PW 4 Sube
Singh, a suggestion was made with regard to the colour of
the shirt worn by one of the accused persons at the time of
the incident. This Court, taking into consideration the
nature of the suggestion put by the defence and the reply,
arrived at the conclusion that the presence of the accused,
namely, Dharam Vir, was established on the spot at the time
of occurrence. We quote the following observations made by
this Court in paras 8 and 9, respectively, as under (SCC p. 36)
42
Neutral Citation No. ( 2025:HHC:2282-DB )
“8. PW 3, Bhagat Singh, stated in his examination-in-
chief that he had identified the accused at the time of
occurrence. But curiously enough, he was not cross-
examined as to how and in what manner he could identify
the accused, as pointed out by the learned Sessions Judge.
No suggestion was also given to him that the place was
dark and that it was not possible to identify the assailants
of the deceased.
9. In his cross-examination, PW 4 Sube Singh stated that
the accused, Dharam Vir, was wearing a shirt of white
colour. It was suggested to him on behalf of the accused
that Dharam Vir was wearing a shirt of cream colour. In
answer to that suggestion, PW 4 said it is not correct that
Dharam Vir, the accused, was wearing a shirt of a cream
colour and not a white colour at that time.’ The learned
Sessions Judge has rightly observed that the above
suggestion at least proves the presence of accused
Dharam Vir on the spot at the time of occurrence.”
38. Thus, from the above, it is evident that the suggestion
made by the defence counsel to a witness in the cross-
examination, if found to be incriminating in nature in any
manner, would definitely bind the accused, and the accused
cannot get away on the plea that his counsel had no implied
authority to make suggestions in the nature of admissions
against his client.
39. Any concession or admission of a fact by a defence
counsel would definitely be binding on his client, except the
concession on the point of law. As a legal proposition, we
cannot agree with the submission canvassed on behalf of the
appellants that an answer by a witness to a suggestion made
by the defence counsel in the cross-examination does not
deserve any value or utility if it incriminates the accused in
any manner.”
34. 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 eye witness, the Court
43
Neutral Citation No. ( 2025:HHC:2282-DB )
must adhere to two principles namely, whether in the
circumstances of the case, the eye witness 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 the realm of
conjecture and fanciful speculation without 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 our opinion has failed to observe the
aforesaid principles and in fact, had 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 and finding 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
the evidence 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 has been
brought out in their cross-examination to impeach their
testimony. The aforesaid oral evidence fully corroborates the
medical evidence. In that view of the matter, we
unhesitatingly come to the conclusion that the prosecution
has been able to establish the charge against the accused
persons and the High Court committed an error in acquitting
44
Neutral Citation No. ( 2025:HHC:2282-DB )the three respondents namely Inder Dutt, Raghu Raj and
Bikram.” (emphasis supplied)
35. 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:
“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 a grave 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 act upon it or even to
disbelieve them.”
36. In the present case, nothing inherently improbable was
shown in the testimony of Dharmanand and his testimony was
rightly accepted by the learned Trial Court.
37. It was submitted that no test identification parade was
conducted to test his power of observation and identification. As
per him, he had seen the assailants briefly, and his power of
identification should have been tested in the previous
45
Neutral Citation No. ( 2025:HHC:2282-DB )
identification parade. This submission would have helped the
defence if they had participated in the test identification parade.
38. SI Kamaldeep (PW50) filed an application for test
identification of the accused. Learned Judicial Magistrate, First
Class-II, passed the orders on 16.02.2013 and 17.02.2013 regarding
the identification. He went to the sub-Jail Una on 17.02.2013 and
recorded the proceedings. He specifically mentioned that he had
called each accused separately and disclosed his identity to them.
He explained the procedure to the accused; however, the accused
declined to undergo a test identification parade. They made the
statements to this effect. The accused have also not disputed in
their statements recorded under Sections 313 of Cr.P.C. that they
had refused to undergo a test identification parade; hence, this part
of the prosecution case that the accused had not participated in a
test identification parade is duly proved.
39. The accused stated that they were shown to the
witnesses and had reasonable cause not to participate in the Test
Identification Parade. It was submitted that a news item containing
the names and the photographs of the accused was published in
the newspaper which enabled the eyewitnesses to identify the
accused. Surinder Kumar Sharma (PW52) stated in his cross-
46
Neutral Citation No. ( 2025:HHC:2282-DB )
examination by learned counsel for the accused Rajeev Kaushal
that he was not aware of a press release published in the
newspaper on 16.2.2013 in which the police claimed to have
arrested all the culprits in the case and published the photographs
of the accused in the newspaper. Dharma Nand (PW15) stated in his
cross-examination that he came to know about the names of the
accused by going through the newspaper. Reference was made to
these statements to submit that the plea of the accused has been
probabilized by the cross-examination of these witnesses. This
submission is not acceptable. Section 64 of the Indian Evidence
provides that the document is to be proved by primary evidence
which means that the document itself has to be produced for the
perusal of the Court. In the absence of the newspaper, the plea that
the news item containing the photographs was published is not
acceptable. Further Surinder Kumar Sharma (PW51) stated that he
was not aware of the publication of the news item containing the
photographs and his statement does not prove that any such news
item was published in the newspaper. The statement of Duben
Parsad (PW16) only shows that the names were published in the
news and it nowhere shows that the photographs were also
published; therefore, the plea of the accused that they had a
47
Neutral Citation No. ( 2025:HHC:2282-DB )
reasonable cause for not participating in the Test Identification
Parade cannot be accepted.
40. It was laid down by the Hon’ble Supreme Court in
Munna v. State (NCT of Delhi), (2003) 10 SCC 599: 2004 SCC (Cri) 944:
2003 SCC OnLine SC 916 that where the accused refused to
participate in the test identification parade, they cannot claim that
their identification in the Court is improper. It was observed at
page 605:
“8. It is true that the normal rule is that the testimony of a
witness who does not know an accused from before and
identifies him for the first time in the court as a person who
had participated in the commission of the crime without
holding a previous identification parade does not carry much
weight. The substantive evidence of a witness is the
statement in court, but as a rule of prudence, earlier
identification proceedings are held in order to corroborate
the testimony of a witness given in court as regards the
identity of the accused, who is not known to him from
before. However, this normal rule can have no application in
the present case on account of own conduct of the appellant.
The investigating officer produced appellant Munna
“baparda” (with his face muffled) in the Court of
Metropolitan Magistrate on 15-2-1992, and an application
was given, praying that necessary orders be passed for
holding his test identification parade. It was mentioned in
the application that after his arrest, Munna had been kept
“baparda” and is being produced in court in that condition.
However, the appellant categorically refused to participate
in a test identification parade. Thereafter, the learned
Metropolitan Magistrate passed the following order:
“Accused Munna in muffled face in police custody is
produced and identified before me by SI Satya Pal, PS
48
Neutral Citation No. ( 2025:HHC:2282-DB )Roop Nagar. The accused was questioned whether he
wanted to join the test identification parade. He refused
to join. He is warned that his refusal to join TIP may be
interpreted as evidence against him. Still, he does not
want to participate in TIP. Let his statement be
recorded.”
9. Thereafter, the statement of appellant Munna was
recorded, where he stated that he did not want to participate
in the test identification parade because the witnesses had
already seen him in the police station.
10. In a case where an accused himself refuses to participate
in a test identification parade, it is not open to him to
contend that the statement of the eyewitnesses made for the
first time in court, wherein they specifically point towards
him as a person who had taken part in the commission of the
crime, should not be relied upon. This plea is available
provided the prosecution is itself responsible for not holding
a test identification parade. However, in a case where the
accused himself declines to participate in a test
identification parade, the prosecution has no option but to
proceed in a normal manner like all other cases and rely
upon the testimony of the witnesses, which is recorded in
court during the course of the trial of the case.
11. The effect of not holding a prior test identification parade
has been recently examined in considerable detail by a
three-judge Bench in Malkhansingh v. State of M.P. [(2003) 5
SCC 746: 2003 SCC (Cri) 1247: JT (2003) 5 SC 323] and after
review of practically all the earlier decisions, it has been held
as under:
“7. It is trite to say that the substantive evidence is the
evidence of identification in court. Apart from the clear
provisions of Section 9 of the Evidence Act, the position
in law is well settled by a catena of decisions of this Court.
The facts which establish the identity of the accused
persons are relevant under Section 9 of the Evidence Act.
As a general rule, the substantive evidence of a witness is
the statement made in court. The evidence of mere
identification of the accused person at the trial for the
first time is from its very nature inherently of a weak
49
Neutral Citation No. ( 2025:HHC:2282-DB )character. The purpose of a prior test identification,
therefore, is to test and strengthen the trustworthiness of
that evidence. It is accordingly considered a safe rule of
prudence to generally look for corroboration of the sworn
testimony of witnesses in court as to the identity of the
accused who are strangers to them in the form of earlier
identification proceedings. This rule of prudence,
however, is subject to exceptions when, for example, the
court is impressed by a particular witness on whose
testimony it can safely rely without such or other
corroboration. The identification parades belong to the
stage of investigation, and there is no provision in the
Code of Criminal Procedure which obliges the
investigating agency to hold or confers a right upon the
accused to claim a test identification parade. … Failure to
hold a test identification parade would not make
inadmissible the evidence of identification in court. The
weight to be attached to such identification should be a
matter for the courts of fact.” (SCC pp. 751-52, para 7)
“10. It is no doubt true that much evidentiary value
cannot be attached to the identification of the accused in
court where the identifying witness is a total stranger
who had just a fleeting glimpse of the person identified or
who had no particular reason to remember the person
concerned if the identification is made for the first time
in court.” (SCC p. 753, para 10)
“[T]he substantive evidence is the evidence of
identification in court, and the test identification parade
provides corroboration to the identification of the
witness in court if required. However, what weight must
be attached to the evidence of identification in court,
which is not preceded by a test identification parade, is a
matter for the courts of fact to examine.” (SCC p. 755,
para 16)
12. It may be pointed out that in the above noted case, it was
the prosecution which did not hold a prior test identification
parade, and for this lapse, the accused were not responsible
in any manner as they had never declined to attend or
participate in a test identification parade. However, on the
50
Neutral Citation No. ( 2025:HHC:2282-DB )
finding that the prosecutrix appeared to be a witness on
whom implicit reliance could be placed and there was no
reason why she should falsely identify the appellants as
perpetrators of the crime if they had not actually committed
the offence, coupled with other circumstances of the case,
the accused were convicted and sentenced under Section 376
IPC. What this authority holds is that there is no straitjacket
formula that in a case where the accused is not named in the
FIR or a statement under Section 161 CrPC or is not
otherwise known from before, the testimony of a witness for
the first time in court, without a prior test identification
parade, becomes valueless. The testimony of such a witness
has to be judged like that of any other witness having regard
to the facts and circumstances of the case and also keeping
in view the fact that prior identification proceedings had not
been held.
13. The case in handstands on a much better footing. Though
the prosecution moved an application before the
Metropolitan Magistrate to hold a test identification parade,
but it was the appellant who declined to participate in the
same. In his statement under Section 313 CrPC, the appellant
Munna stated that he was arrested from his house in Khurja
on 14-2-1992. He was produced in the Court of Metropolitan
Magistrate on 15-2-1992 by the investigating officer of the
case. In the application, it was stated that he had been kept
“baparda” and was produced in court “baparda” as a test
identification parade had to be held. Had he not been
produced in “baparda” condition, the learned Metropolitan
Magistrate would have recorded the said fact. It is not a case
where there was a long time gap between the time of the
arrest and his production in court, as according to the own
statement of the appellant, he had been arrested only on the
previous day. In his statement under Section 313 CrPC, he did
not state that he had been shown to the witnesses at the
police station.”
41. Thus, where the accused had refused to undergo a test
identification parade, it is not permissible for them to contend that
their identification in the Court is not proper, and the same should
51
Neutral Citation No. ( 2025:HHC:2282-DB )
have been tested by a previous test identification parade. They
were afforded a chance to participate in the test identification
parade, but they declined to do so; therefore, the submission that
the test identification parade was not conducted and the
identification of the accused in the Court is not proper cannot be
accepted.
42. The identity of the accused is also established by the
statement of Chajju Ram (PW4). He stated that he had gone to a
temple in an industrial area, Mehatpur, on 14.02.2013 at 12:00
noon. He saw a motorcycle near the wall of the temple. He noticed
three boys who were present at odd hours because normally,
people remain present near the temple in the morning. He went
from the other gate of the temple and found the car of Ashwani
Jain. He went inside the factory. Ashwani Jain received a telephone
call at about 12:15-12:30 pm on his mobile phone and was shocked.
Ashwani revealed on inquiry that a firing incident had taken place
in Jain Oil Mills, and Vinod Jain had sustained a bullet injury. He
and Ashwani Jain proceeded towards the spot and found labourers
who disclosed that three boys had fled away on a motorcycle after
firing at Vinod Jain. Vinod Jain was taken to the hospital in a car. He
and Ashwani went to the hospital and found the dead body of Vinod
52
Neutral Citation No. ( 2025:HHC:2282-DB )
Jain. He informed the police while boarding the car by using his
mobile phone. He stated in his cross-examination that Ashwani
Jain was known to him for 15-20 years. The name of Ashwani Jain’s
factory was Bansal Tubes. Part of the building was given to Vinod
Jain for running the Jain Oil Mills. He had not mentioned to the
police that the car of Ashwani Jain was parked on the other side of
the temple. He had mentioned in his statement to the police that
the motorcycle was parked at odd hours outside the temple. He was
confronted with his previous statement, where this fact was not
recorded. He had also mentioned that he was having tea with
Ashwani Jain and proceeded towards the spot with Ashwani Jain.
He denied that he was not present at Mehatpur on 14.02.2013 and
was making a false statement.
43. It was submitted that this witness was duly confronted
with his previous statement, and he has made material
improvements in his statement recorded before the Court. This
would cast doubt on the prosecution’s version. This submission
will not help the accused. The witness has not been properly cross-
examined. He was asked about what was told by him to the police.
In this regard, it is to be noticed that the statement recorded under
Section 161 of Cr.PC is not a substantive piece of evidence and the
53
Neutral Citation No. ( 2025:HHC:2282-DB )
statement made to the police cannot be used for any purpose
except to contradict the prosecution witness as per Section 162 of
Cr. PC. Therefore, it is not permissible to ask a witness as to what
was told by him to the police and prove the statement recorded by
the police. In Tahsildar Singh v. State of U.P., 1959 Supp (2) SCR 875:
AIR 1959 SC 1012: 1959 Cri LJ 1231 (six-judges bench) learned Counsel
for the defence asked the following questions from the witness
during his cross-examination:
1. “Did you state to the investigating officer that the gang
rolled the dead bodies of Nathi, Saktu and Bharat Singh, and
scrutinise them and did you tell him that the face of Asa Ram
resembled that of the deceased Bharat Singh?”
2. “Did you state to the investigating officer about the
presence of the gas lantern?”
44. Learned Sessions Judge disallowed the questions
holding that omission does not amount to contradiction and
cannot be put under section 161 of Cr.P.C. He held:
“Therefore, if there is no contradiction between his
evidence in court and his recorded statement in the diary,
the latter cannot be used at all. If a witness deposes in court
that a certain fact existed but had stated under Section 161
CrPC either that that fact had not existed or that the reverse
and irreconcilable fact had existed, it is a case of conflict
between the deposition in the court and the statement under
Section 161 CrPC and the latter can be used to contradict the
former. But if he had not stated under Section 161 anything
about the fact, there is no conflict and the statement cannot
be used to contradict him. In some cases, an omission in the
statement under Section 161 may amount to contradiction of
54
Neutral Citation No. ( 2025:HHC:2282-DB )the deposition in court; they are the cases where what is
actually stated is irreconcilable with what is omitted and
impliedly negatives its existence.”
45. A question arose before the Hon’ble Supreme Court
whether the questions were wrongly disallowed. It was held that
the form of the questions was defective as they elicited from the
witness what he had told the police and were properly disallowed.
It was observed:
“13.. …… The procedure prescribed is that, if it is intended to
contradict a witness by the writing, his attention must,
before the writing can be proved, be called to those parts of
it which are to be used for the purpose of contradicting him.
The proviso to Section 162 of the Code of Criminal Procedure
only enables the accused to make use of such a statement to
contradict a witness in the manner provided by Section 145
of the Evidence Act. It would be doing violence to the
language of the proviso if the said statement be allowed to
be used for the purpose of cross-examining a witness within
the meaning of the first part of Section 145 of the Evidence
Act. Nor are we impressed by the argument that it would not
be possible to invoke the second part of Section 145 of the
Evidence Act without putting relevant questions under the
first part thereof. The difficulty is more imaginary than real.
The second part of Section 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 be drawn 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 it, the practice generally followed is to admit it
subject to proof by the police officer. On the other hand, the
procedure suggested by the learned counsel may be illustrated
thus: If the witness is asked “Did you say before the police officer
that you saw a gas light?” and he answers “Yes”, then the
55
Neutral Citation No. ( 2025:HHC:2282-DB )statement which does not contain such recital is put to him as a
contradiction. This procedure involves two fallacies: one is it
enables the accused to elicit by a process of cross-examination
what the witness stated before the police officer. If a police
officer did not make a record of a witness’s statement, his entire
statement could not be used for any purpose, whereas if a police
officer recorded a few sentences, by this process of cross-
examination, the witness’s oral statement could be brought on
record. This procedure, therefore, contravenes the express
provision of Section 162 of the Code. The second fallacy is that by
the illustration given by the learned counsel for the appellants,
there is no self-contradiction of the primary statement made in
the witness box, for the witness has yet not made on the stand
any assertion at all which can serve as the basis. The
contradiction, under the section, should be between 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 made before him.
In such a case the question could not be put at all: only questions
to contradict can be put and the question here posed does not
contradict; it leads to an answer which is contradicted by the
police statement. This argument of the learned counsel based
upon Section 145 of the Evidence Act is, therefore, not of any
relevance in considering the express provisions of Section 162 of
the Code of Criminal Procedure.
xxxxxxxxx
51. It must not be overlooked that the cross-examination
must be directed to bringing out a contradiction between the
statements and must not subserve any other purpose. If the
cross-examination does anything else, it will be barred
under Section 162 which permits the use of the earlier
statement for contradicting a witness and nothing else.
Taking the example given above, we do not see why cross-
examination may not be like this:
Q. I put it to you that when you arrived on the scene X was
already running away and you did not actually see him
stab D as you have deposed today?
A. No. I saw both events.
56
Neutral Citation No. ( 2025:HHC:2282-DB )
Q. If that is so, why is your statement to the police silent
as to stabbing?
A. 1 stated both the facts to the police.
The witness can then be contradicted with his previous
statement. We need hardly point out that in the illustration
given by us, the evidence of the witness in court is direct
evidence as opposed to testimony to a fact suggesting guilt.
The statement before the police can only be called
circumstantial evidence of complicity and not direct
evidence in the strict sense. Of course, if the questions framed
were:
Q. What did you state to the police? or
Q. Did you state to the police that D stabbed X?
they may be ruled out as infringing Section 162 of the Code of
Criminal Procedure because they do not set up a contradiction
but attempt to get a fresh version from the witnesses with a view
to contradicting him. How the cross-examination can be
made must obviously vary from case to case, counsel to
counsel and statement to statement. No single rule can be
laid down and the propriety of the question in the light of
the two sections can be found only when the facts and
questions are before the court. But we are of the opinion that
relevant and material omissions amount to vital
contradictions, which can be established by cross-
examination and confronting the witness with his previous
statement.
xxxxxxxx
59. This brings us to the consideration of the questions,
which were asked and disallowed. These were put during the
cross-examination of Bankey, PW 30. They are:
Q. Did you state to the investigating officer that the gang
rolled the dead bodies of Nathi, Saktu and Bharat Singh
and scrutinized them, and did you tell him that the face of
Asa Ram resembled that of the deceased Bharat Singh?
Q. Did you state to the investigating officer about the
presence of the gas lantern?
57
Neutral Citation No. ( 2025:HHC:2282-DB )
These questions were defective, to start with. They did not set up
a contradiction but attempted to obtain from the witness a
version of what he stated to the police, which is then
contradicted. What is needed is to take the statement of the
police as it is, and establish a contradiction between that
statement and the evidence in court. To do otherwise is to
transgress the bounds set by Section 162 which, by its absolute
prohibition, limits even cross-examination to contradictions and
no more. The cross-examination cannot even indirectly subserve
any other purpose. In the questions with which we illustrated
our meaning, the witness was not asked what he stated to the
police but was told what he had stated to the police and asked to
explain the omission. It is to be borne in mind that the statement
made to the police is “duly proved” either earlier or even later to
establish what the witness had then stated.”
xxxxxxxxx
60. In our opinion, the two questions were defective for the
reasons given here and were properly ruled out, even though all
the reasons given by the court may not stand scrutiny. The
matter was not followed up with proper questions, and it
seems that similar questions on these and other points were
not put to the witness out of deference (as it is now
suggested) to the ruling of the court. The accused can only
blame themselves if they did not.” (Emphasis supplied)
46. Thus, no advantage can be derived by the defence from
the cross-examination of the witness.
47. 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 his
statement, 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 when
58
Neutral Citation No. ( 2025:HHC:2282-DB )any part of such statement is so used, any part thereof may
also be used in the re-examination of such witness, but for
the purpose only of explaining any matter referred to in his
cross-examination.
48. 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
previous statement has to be proved before it can be used. It was
observed:
“The words “if duly proved” in my opinion, clearly show
that the record of the statement cannot be admitted in
evidence straightaway but that the officer before whom the
statement was made should ordinarily be examined as to
any alleged statement or omitted statement that is relied
upon by the accused for the purpose of contradicting the
witness; and the provisions of Section 67 of the Indian
Evidence Act apply to this case, as well as to any other
similar ease. Of course, I do not mean to say that, if the
particular police officer who recorded the statement is not
available, other means of proving the statement may not be
availed of, e.g., evidence that the statement is in the
handwriting of that particular officer.”
49. It was laid down by 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: –
59
Neutral Citation No. ( 2025:HHC:2282-DB )
“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.”
50. 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 the learned 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 any authority is to be cited on
this point, we may conveniently refer to the case of Pangi
Jogi Naik v. State reported in AIR 1965 Orissa 205: (1965 (2) Cri
LJ 661). Further in the case of Tahsildar Singh v. State of U.P.,
reported in AIR 1959 SC 1012: (1959 Cri LJ 1231) it was also held
that the statement not reduced to writing cannot be
60
Neutral Citation No. ( 2025:HHC:2282-DB )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, his evidence that when he
turned back, he saw the accused Badaruddin lowering, the
gun from the chest is to be taken as his correct version.
14. The learned defence counsel has attempted to persuade
us not to rely on the evidence of this witness on the ground
that his evidence before the trial Court is contradicted by his
previous statement made before the police. However, in view
of the decisions made in the said cases we have been
persuaded irresistibly to hold that the correct procedure to
be followed which would be in conformity with S. 145 of the
Evidence Act to contradict the evidence given by
the prosecution witness at the trial with a statement made
by him before the police during the investigation will be to
draw the attention of the witness to that part of the
contradictory statement which he made before the police,
and questioned him whether he did, in fact, make that
statement. If the witness admits having made the particular
statement to the police, that admission will go into evidence
and will be recorded as part of the evidence of the witness
and can be relied on by the accused as establishing the
contradiction. However, if, on the other hand, the witness
denies to have made such a statement before the police, the
particular portions of the statement recorded should be
provisionally marked for identification as B-1 to B-1, B-2 to
B-2 etc. (any identification mark) and when the
investigating officer who had actually recorded the
statements in question comes into the witness box, he
should be questioned as to whether these particular
statements had been made to him during the investigation
by the particular witness, and obviously after refreshing his
memory from the case diary the investigating officer would
make his answer in the affirmative. The answer of the
61
Neutral Citation No. ( 2025:HHC:2282-DB )Investigating Officer would prove the statements B-1 to B-1,
B-2 to B-2 which are then exhibited as Ext. D. 1, Ext. D. 2 etc.
(exhibition mark) in the case and will go into evidence, and
may, thereafter, be relied on by the accused as
contradictions. In the case in hand, as was discussed in
above, the above procedure was not followed while cross-
examining the witness to his previous statements, and,
therefore, we have no alternative but to accept the statement
given by this witness before the trial Court that he saw the
accused Badaruddin lowering the gun from his chest to be
his correct version.”
51. 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 the same, the
same is to be got 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 the witness and the
witness denying the same will not amount to putting
contradiction to the witness. The contradiction has to be put
to the witness as contemplated under 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 be drawn to the
statement made by such witness before the Police or any
other previous statement and he must be given a reasonable
opportunity to explain as to why such contradiction appears
and he may give any answer if the statement made by him is
62
Neutral Citation No. ( 2025:HHC:2282-DB )shown to him and if he confronted with such a statement
and thereafter the said contradiction must be proved
through the Investigation Officer. Then only it amounts to
putting the contradiction to the witness and getting it
proved through the Investigation Officer.”
52. 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 statement
of the witness is contrary to the previous statement recorded
under Section 161, Cr.P.C. or suffers from omission of certain
material particulars, then the previous statement can be
proved by examining the Investigating Officer who had
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 who
wants to highlight the contradictions by confronting the
witness to prove the previous statement of a witness
through the police officer who has recorded the same in the
ordinary way. If the witness in the cross-examination
admits contradictions, then there is no need to prove the
statement. But if the witness denies a contradiction and the
police officer who had recorded the statement is called by
the prosecution, the previous statement of the witness on
this point may be proved by the police officer. In case
the prosecution fails to call the police officer in a given
situation Court can call this witness or the accused can call
the police officer to give evidence in defence. There is no
63
Neutral Citation No. ( 2025:HHC:2282-DB )doubt that unless the statement as per 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 previous
statements made by him in writing or reduced into writing,
and relevant to matters in question, without such writing
being shown to him, or being proved; but, if it intended to
contradict him by the writing, his attention must, before the
writing can be proved, be called to those parts of it which are
to be used for the purpose of contradicting him.”
25. Therefore, it is appropriate that before the previous
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 state ‘Z
murdered Y’. This is a contradiction. Defence Counsel or
Court and even prosecution if the witness is declared hostile
having resiled from 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, 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 statement marked as 1, and confronted with the
portion where it is recorded that ‘X murdered Y’. In this
manner by way of confrontation contradiction is brought on
64
Neutral Citation No. ( 2025:HHC:2282-DB )
record. Later, when the Investigating Officer is examined,
the prosecution or defence may prove the statement, after
the Investigating Officer testifies that the statement
assigned mark was correctly recorded by him at that stage
statement will be exhibited by the Court. Then 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
materia? contradiction, for the Public Prosecutor, as
the witness has resiled from the previous statement, or if he
has been sent for trial for the charge of murder, omission to
state ‘X murdered Y’ will be a material omission, and
amount to contradiction so far defence of ‘W is concerned.
At that stage also attention of the witness will also be drawn
to a significant portion of the statement recorded under
Section 161, Cr.P.C. which the witness had omitted to state
and note shall be given that attention of the witness was
drawn to the portion A to A wherein it is recorded that ‘X
murdered Y’. In this way, the omission is brought on record.
The rest of the procedure stated earlier qua confrontation
shall be followed to prove the statement of the witness and
the fact stated by the witness.
29. Therefore, to prove the statement for the purpose of
contradiction it is necessary that the contradiction or
omission must be brought to the notice of the witness. His or
her attention must be drawn to the portion of the previous
statement (in the present case statement under Section 161,
Cr.P.C.)”
53. A similar view was taken in Alauddin v. State of Assam,
2024 SCC OnLine SC 760 wherein it was observed:
“7. When the two statements cannot stand together, they
become contradictory statements. When a witness makes a
65
Neutral Citation No. ( 2025:HHC:2282-DB )statement in his evidence before the Court which is
inconsistent with what he has stated in his statement
recorded by the Police, there is a contradiction. When a
prosecution witness whose statement under
Section 161(1) or Section 164 of CrPC has been recorded
states factual aspects before the Court which he has not
stated in his prior statement recorded under
Section 161(1) or Section 164 of CrPC, it is said that there is
an omission. There will be an omission if the witness has
omitted to state a fact in his statement recorded by the
Police, which he states before the Court in his evidence. The
explanation to Section 162 CrPC indicates that an omission
may amount to a contradiction when it is significant and
relevant. Thus, every omission is not a contradiction. It
becomes a contradiction provided it satisfies the test laid
down in the explanation under Section 162. Therefore, when
an omission becomes a contradiction, the procedure
provided in the proviso to sub-Section (1) of Section 162
must be followed for contradicting witnesses in the cross-
examination.
8. As stated in the proviso to sub-Section (1) of section
162, the witness has to be contradicted in the manner
provided under Section 145 of the Evidence Act. Section 145
reads thus:
“145. Cross-examination as to previous statements
in writing.–A witness may be cross-examined as to
previous statements made by him in writing or reduced
into writing, and relevant to matters in question, without
such writing being shown to him, or being proved; but, if
it is intended to contradict him by the writing, his
attention must, before the writing can be proved, be
called to those parts of it which are to be used for the
purpose of contradicting him.”
The Section operates in two parts. The first part provides
that a witness can be cross-examined as to his previous
statements made in writing without such writing being
shown to him. Thus, for example, a witness can be cross-
examined by asking whether his prior statement exists. The
second part is regarding contradicting a witness. While
66
Neutral Citation No. ( 2025:HHC:2282-DB )
confronting the witness with his prior statement to prove
contradictions, the witness must be shown his prior
statement. If there is a contradiction between the statement
made by the witness before the Court and what is recorded in
the statement recorded by the police, the witness’s attention
must be drawn to specific parts of his prior statement, which
are to be used to contradict him. Section 145 provides that
the relevant part can be put to the witness without the
writing being proved. However, the previous statement used
to contradict witnesses must be proved subsequently. Only if
the contradictory part of his previous statement is proved
the contradictions can be said to be proved. The usual
practice is to mark the portion or part shown to the witness
of his prior statement produced on record. Marking is done
differently in different States. In some States, practice is to
mark the beginning of the portion shown to the witness with
an alphabet and the end by marking with the same alphabet.
While recording the cross-examination, the Trial Court
must record that a particular portion marked, for example,
as AA was shown to the witness. Which part of the prior
statement is shown to the witness for contradicting him has
to be recorded in the cross-examination. If the witness
admits to having made such a prior statement, that portion
can be treated as proved. If the witness does not admit the
portion of his prior statement with which he is confronted, it
can be proved through the Investigating Officer by asking
whether the witness made a statement that was shown to
the witness. Therefore, if the witness is intended to be
confronted with his prior statement reduced into writing,
that particular part of the statement, even before it is
proved, must be specifically shown to the witness. After
that, the part of the prior statement used to contradict the
witness has to be proved. As indicated earlier, it can be
treated as proved if the witness admits to having made such
a statement, or it can be proved in the cross-examination of
the concerned police officer. The object of this requirement
in Section 145 of the Evidence Act of confronting the witness
by showing him the relevant part of his prior statement is to
give the witness a chance to explain the contradiction.
Therefore, this is a rule of fairness.
67
Neutral Citation No. ( 2025:HHC:2282-DB )
9. If a former statement of the witness is inconsistent
with any part of his evidence given before the Court, it can be
used to impeach the credit of the witness in accordance with
clause (3) of Section 155 of the Evidence Act, which reads
thus:
“155. Impeaching credit of witness. — The credit of a
witness may be impeached in the following ways by the
adverse party, or, with the consent of the Court, by the
party who calls him–
(1) ……………………………………….
(2) ………………………………………
(3) by proof of former statements inconsistent with
any part of his evidence which is liable to be
contradicted.”
It must be noted here that every contradiction or
omission is not a ground to discredit the witness or to
disbelieve his/her testimony. A minor or trifle omission or
contradiction brought on record is not sufficient to
disbelieve the witness’s version. Only when there is a
material contradiction or omission can the Court disbelieve
the witness’s version either fully or partially. What is a
material contradiction or omission depending upon the facts
of each case? Whether an omission is a contradiction also
depends on the facts of each individual case.
10. We are tempted to quote what is held in a landmark
decision of this Court in the case of Tahsildar Singh v. State of
U.P.1959 Supp (2) SCR 875 Paragraph 13 of the said decision
reads thus:
“13. The learned counsel’s first argument is based
upon the words “in the manner provided by
Section 145 of the Indian Evidence Act, 1872″ found in
Section 162 of the Code of Criminal Procedure. Section
145 of the Evidence Act, it is said, empowers the accused
to put all relevant questions to a witness before his
attention is called to those parts of the writing with a
view to contradict him. In support of this contention,
reliance is placed upon the judgment of this Court
in Shyam Singh v. State of Punjab [(1952) 1 SCC 514: 1952
68
Neutral Citation No. ( 2025:HHC:2282-DB )SCR 812]. Bose, J. describes the procedure to be followed
to contradict a witness under Section 145 of the Evidence
Act thus at p. 819:
Resort to Section 145 would only be necessary if the
witness denies that he made the former statement. In
that event, it would be necessary to prove that he did,
and if the former statement was reduced to writing, then
Section 145 requires that his attention must be drawn
to these parts which are to be used for contradiction.
But that position does not arise when the witness
admits the former statement. In such a case all that is
necessary is to look to the former statement of which
no further proof is necessary because of the admission
that it was made.”
It is unnecessary to refer to other cases wherein a
similar procedure is suggested for putting questions
under Section 145 of the Indian Evidence Act, for the said
decision of this Court and similar decisions were not
considering the procedure in a case where the statement
in writing was intended to be used for contradiction
under Section 162 of the Code of Criminal
Procedure. Section 145 of the Evidence Act is in two parts: the
first part enables the accused to cross-examine a witness as
to a previous statement made by him in writing or reduced to
writing without such writing being shown to him; the second
part deals with a situation where the cross-examination
assumes the shape of contradiction: in other words, both
parts deal with cross-examination; the first part with cross-
examination other than by way of contradiction, and the
second with cross-examination by way of contradiction only.
The procedure prescribed is that, if it is intended to contradict
a witness by the writing, his attention must, before the
writing can be proved, be called to those parts of it which are
to be used for the purpose of contradicting him. The proviso
to Section 162 of the Code of Criminal Procedure only enables
the accused to make use of such a statement to contradict a
witness in the manner provided by Section 145 of the
Evidence Act. It would be doing violence to the language of
the proviso if the said statement be allowed to be used for the
69
Neutral Citation No. ( 2025:HHC:2282-DB )
purpose of cross-examining a witness within the meaning of
the first part of Section 145 of the Evidence Act. Nor are we
impressed by the argument that it would not be possible to
invoke the second part of Section 145 of the Evidence Act
without putting relevant questions under the first part
thereof. The difficulty is more imaginary than real. The
second part of Section 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 be drawn 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 it, the practice generally followed is to admit it
subject to proof by the police officer. On the other hand, the
procedure suggested by the learned counsel may be
illustrated thus: If the witness is asked “Did you say
before the police officer that you saw a gas light?” and he
answers “yes”, then the statement which does not
contain such recital is put to him as a contradiction. This
procedure involves two fallacies: one is it enables the
accused to elicit by a process of cross-examination what
the witness stated before the police officer. If a police
officer did not make a record of a witness’s statement, his
entire statement could not be used for any purpose,
whereas if a police officer recorded a few sentences, by
this process of cross-examination, the witness’s oral
statement could be brought on record. This procedure,
therefore, contravenes the express provision of Section
162 of the Code. The second fallacy is that by the
illustration given by the learned counsel for the
appellants, there is no self-contradiction of the primary
statement made in the witness box, for the witness has
yet not made on the stand any assertion at all which can
serve as the basis. The contradiction, under the section,
should be between 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 made before him. In such a
case the question could not be put at all: only questions to
70
Neutral Citation No. ( 2025:HHC:2282-DB )
contradict can be put and the question here posed does
not contradict; it leads to an answer which is contradicted
by the police statement. This argument of the learned
counsel based upon Section 145 of the Evidence Act is,
therefore, not of any relevance in considering the express
provisions of Section 162 of the Code of Criminal
Procedure.” (emphasis added)
This decision is a locus classicus, which will continue to
guide our Trial Courts. In the facts of the case, the learned
Trial Judge has not marked those parts of the witnesses’
prior statements based on which they were sought to be
contradicted in the cross-examination.”
54. It was laid down by the Hon’ble Supreme Court in
Matadin v. State of U.P., 1980 Supp SCC 157: 1979 SCC (Cri) 627 that
the statement under Section 161 Cr.PC is not detailed and is meant
to be brief. It does not contain all the details. It was observed at
page 158:
“3. The learned Sessions Judge had rejected the evidence of
the eyewitnesses on wrong, unconvincing and unsound
reasons. The Sessions Judge appears to have been swayed by
some insignificant omissions made by some of the witnesses
in their statement before the police and on the basis of these
omissions dubbed the witnesses as liars. The Sessions Judge
did not realise that the statements given by the witnesses
before the police were meant to be brief statements and
could not take the place of evidence in the Court. Where the
omissions are vital, they merit consideration, but mere small
omissions will not justify a finding by a court that the
witnesses concerned are self-contained liars. We have
carefully perused the judgment of the Sessions Judge and we
are unable to agree that the reasons that he has given for
disbelieving the witnesses are good or sound reasons. The
High Court was, therefore, fully justified in reversing the
judgment passed by the trial court. We are satisfied that this
is a case where the judgment of the Sessions Judge was
71
Neutral Citation No. ( 2025:HHC:2282-DB )manifestly wrong and perverse and was rightly set aside by
the High Court. It was urged by Mr Mehta that as other
appellants except Matadin and Dulare do not appear to have
assaulted the deceased, so they should be acquitted of the
charge under Section 149. We, however, find that all the
appellants were members of the unlawful assembly. Their
names find a place in the FIR. For these reasons, we are
unable to find any ground to distinguish the case of those
appellants from that of Matadin and Dulare. The argument
of the learned counsel is overruled. The result is that the
appeal fails and is accordingly dismissed. The appellants
who are on bail, will now surrender to serve out the
remaining portion of their sentence.”
55. Similar is the judgment in Esher Singh v. State of A.P.,
(2004) 11 SCC 585: 2004 SCC OnLine SC 320 wherein it was held at
page 601:
“23. So far as the appeal filed by accused Esher Singh is
concerned, the basic question is that even if the confessional
statement purported to have been made by A-5 is kept out of
consideration, whether residuary material is sufficient to
find him guilty. Though it is true as contended by learned
counsel for the accused-appellant Esher Singh that some
statements were made for the first time in court and not
during the investigation, it has to be seen as to what extent
they diluted the testimony of Balbeer Singh and Dayal Singh
(PWs 16 and 32) used to bring home the accusations. A mere
elaboration cannot be termed as a discrepancy. When the
basic features are stated, unless the elaboration is of such
a nature that it creates a different contour or colour of the
evidence, the same cannot be said to have totally changed
the complexion of the case. It is to be noted that in addition
to the evidence of PWs 16 and 32, the evidence of S. Narayan
Singh (PW 21) provides the necessary links and strengthens
the prosecution version. We also find substance in the plea
taken by learned counsel for the State that evidence of Amar
Singh Bungai (PW 24) was not tainted in any way, and
should not have been discarded and disbelieved only on
72
Neutral Citation No. ( 2025:HHC:2282-DB )surmises. Balbir Singh (PW 3), the son of the deceased has
also stated about the provocative statements in his evidence.
Darshan Singh (PW 14) has spoken about the speeches of the
accused Esher Singh highlighting the Khalistan movement.
We find that the trial court had not given importance to the
evidence of some of the witnesses on the ground that they
were relatives of the deceased. The approach is wrong. The
mere relationship does not discredit the testimony of a
witness. What is required is careful scrutiny of the evidence.
If after careful scrutiny the evidence is found to be credible
and cogent, it can be acted upon. In the instant case, the trial
court did not indicate any specific reason to cast doubt on
the veracity of the evidence of the witnesses whom it had
described to be the relatives of the deceased. PW 24 has
categorically stated about the provocative speeches by A-1.
No definite cross-examination on the provocative nature of
speech regarding the Khalistan movement was made, so far
as this witness is concerned.”
56. This position was reiterated in Shamim v. State (NCT of
Delhi), (2018) 10 SCC 509: (2019) 1 SCC (Cri) 319: 2018 SCC OnLine SC
1559 where it was held at page 513:
“12. While appreciating the evidence of a witness, the
approach must be whether the evidence of the witness read
as a whole inspires confidence. Once that impression is
formed, it is undoubtedly necessary for the court to
scrutinise the evidence more particularly keeping in view the
deficiencies, drawbacks and infirmities pointed out in the
evidence as a whole and evaluate them to find out whether it
is against the general tenor of the evidence and whether the
earlier evaluation of the evidence is shaken as to render it
unworthy of belief. Minor discrepancies on trivial matters
not touching the core of the case, a hypertechnical approach
by taking sentences torn out of context here or there from
the evidence, and attaching importance to some technical
error without going to the root of the matter would not
ordinarily permit rejection of the evidence as a whole. Minor
omissions in the police statements are never considered to
73
Neutral Citation No. ( 2025:HHC:2282-DB )be fatal. The statements given by the witnesses before the
police are meant to be brief statements and could not take
the place of evidence in the court. Small/trivial omissions
would not justify a finding by the court that the witnesses
concerned are liars. The prosecution evidence may suffer
from inconsistencies here and discrepancies there, but that
is a shortcoming from which no criminal case is free. The
main thing to be seen is whether those inconsistencies go to
the root of the matter or pertain to insignificant aspects
thereof. In the former case, the defence may be justified in
seeking advantage of incongruities obtained in the evidence.
In the latter, however, no such benefit may be available to
it.”
57. Similar is the judgment in Kalabhai Hamirbhai Kachhot
v. State of Gujarat, (2021) 19 SCC 555: 2021 SCC OnLine SC 347
wherein it was observed at page 564:
“22. We also do not find any substance in the argument of
the learned counsel that there are major contradictions in
the deposition of PWs 18 and 19. The contradictions which
are sought to be projected are minor contradictions which
cannot be the basis for discarding their evidence. The
judgment of this Court in Mohar [Mohar v. State of U.P.,
(2002) 7 SCC 606: 2003 SCC (Cri) 121] relied on by the learned
counsel for the respondent State supports the case of the
prosecution. In the aforesaid judgment, this Court has held
that convincing evidence is required, to discredit an injured
witness. Para 11 of the judgment reads as under: (SCC p. 611)
“11. The testimony of an injured witness has its own
efficacy and relevancy. The fact that the witness
sustained injuries on his body would show that he was
present at the place of occurrence and had seen the
occurrence by himself. Convincing evidence would be
required to discredit an injured witness. Similarly, every
discrepancy in the statement of a witness cannot be
treated as fatal. A discrepancy which does not affect the
prosecution case materially cannot create any infirmity.
74
Neutral Citation No. ( 2025:HHC:2282-DB )
In the instant case, the discrepancy in the name of PW 4
appearing in the FIR and the cross-examination of PW 1
has been amply clarified. In cross-examination, PW 1
clarified that his brother Ram Awadh had three sons: (1)
Jagdish, PW 4, (2) Jagarnath, and (3) Suresh. This
witness, however, stated that Jagarjit had only one name.
PW 2 Vibhuti, however, stated that at the time of
occurrence, the son of Ram Awadh, Jagjit alias Jagarjit
was milching a cow and he was also called as Jagdish.
Balli (PW 3) mentioned his name as Jagjit and Jagdish. PW
4 also gave his name as Jagdish.”
23. The learned counsel for the respondent State has also
relied on the judgment of this Court in Naresh [State of
U.P. v. Naresh, (2011) 4 SCC 324: (2011) 2 SCC (Cri) 216]. In the
aforesaid judgment, this Court has held that the evidence of
injured witnesses cannot be brushed aside without assigning
cogent reasons. Paras 27 and 30 of the judgment which are
relevant, read as under: (SCC pp. 333-34)
“27. The evidence of an injured witness must be given
due weightage being a stamped witness, thus, his
presence cannot be doubted. His statement is generally
considered to be very reliable and it is unlikely that he has
spared the actual assailant in order to falsely implicate
someone else. The testimony of an injured witness has its
own relevancy and efficacy as he has sustained injuries at
the time and place of occurrence and this lends support to
his testimony that he was present during the occurrence.
Thus, the testimony of an injured witness is accorded a
special status in law. The witness would not like or want
to let his actual assailant go unpunished merely to
implicate a third person falsely for the commission of the
offence. Thus, the evidence of the injured witness should
be relied upon unless there are grounds for the rejection
of his evidence on the basis of major contradictions and
discrepancies therein. (Vide Jarnail Singh v. State of
Punjab [Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 :
(2010) 1 SCC (Cri) 107], Balraje v. State of
Maharashtra [Balraje v. State of Maharashtra, (2010) 6 SCC
673 : (2010) 3 SCC (Cri) 211] and Abdul Sayeed v. State of
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Neutral Citation No. ( 2025:HHC:2282-DB )
M.P. [Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 :
(2010) 3 SCC (Cri) 1262] )
***
30. In all criminal cases, normal discrepancies are
bound to occur in the depositions of witnesses due to
normal errors of observation, namely, errors of memory
due to lapse of time or due to mental dispositions such as
shock and horror at the time of occurrence. Where the
omissions amount to a contradiction, creating serious
doubt about the truthfulness of the witness and other
witnesses also make material improvement while
deposing in the court, such evidence cannot be safe to
rely upon. However, minor contradictions,
inconsistencies, embellishments or improvements on
trivial matters which do not affect the core of the
prosecution case, should not be made a ground on which
the evidence can be rejected in its entirety. The court has
to form its opinion about the credibility of the witness
and record a finding as to whether his deposition inspires
confidence.
‘9. Exaggerations per se do not render the evidence
brittle. But it can be one of the factors to test
the credibility of the prosecution version when the entire
evidence is put in a crucible for being tested on the
touchstone of credibility.’ [Ed.: As observed in Bihari Nath
Goswami v. Shiv Kumar Singh, (2004) 9 SCC 186, p. 192,
para 9: 2004 SCC (Cri) 1435]
Therefore, mere marginal variations in the statements of
a witness cannot be dubbed as improvements as the same
may be elaborations of the statement made by the
witness earlier. The omissions which amount to
contradictions in material particulars i.e. go to the root of
the case/materially affect the trial or core of the
prosecution’s case, render the testimony of the witness
liable to be discredited. (Vide State v. Saravanan [State v.
Saravanan, (2008) 17 SCC 587 : (2010) 4 SCC (Cri) 580],
Arumugam v. State [Arumugam v. State, (2008) 15 SCC 590 :
(2009) 3 SCC (Cri) 1130], Mahendra Pratap Singh v. State of
U.P. [Mahendra Pratap Singh v. State of U.P., (2009) 11 SCC
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Neutral Citation No. ( 2025:HHC:2282-DB )334 : (2009) 3 SCC (Cri) 1352] and Sunil Kumar
Sambhudayal Gupta v. State of Maharashtra [Sunil Kumar
Sambhudayal Gupta v. State of Maharashtra, (2010) 13 SCC
657 : (2011) 2 SCC (Cri) 375]”
24. Further, in Narayan Chetanram Chaudhary v. State of
Maharashtra [Narayan Chetanram Chaudhary v. State of
Maharashtra, (2000) 8 SCC 457: 2000 SCC (Cri) 1546], this
Court has considered the effect of the minor contradictions
in the depositions of witnesses while appreciating the
evidence in a criminal trial. In the aforesaid judgment, it is
held that only contradictions in material particulars and not
minor contradictions can be grounds to discredit the
testimony of the witnesses. The relevant portion of para 42
of the judgment reads as under: (SCC p. 483)
“42. Only such omissions which amount to
a contradiction in material particulars can be used to
discredit the testimony of the witness. The omission in
the police statement by itself would not necessarily
render the testimony of the witness unreliable. When the
version given by the witness in the court is different in
material particulars from that disclosed in his earlier
statements, the case of the prosecution becomes doubtful
and not otherwise. Minor contradictions are bound to
appear in the statements of truthful witnesses as memory
sometimes plays false and the sense of observation
differs from person to person. The omissions in the
earlier statement if found to be of trivial details, as in the
present case, the same would not cause any dent in the
testimony of PW 2. Even if there is a contradiction of
statement of a witness on any material point, that is no
ground to reject the whole of the testimony of such
witness.”
58. It was laid down by the Hon’ble Supreme Court in
Achchar Singh vs. State of H.P. AIR 2021 SC 3426 that the testimony
of a witness cannot be discarded due to exaggeration alone. It was
observed:
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Neutral Citation No. ( 2025:HHC:2282-DB )
“24. It is vehemently contended that the evidence of the
prosecution witnesses is exaggerated and thus false.
Cambridge Dictionary defines “exaggeration” as “the fact of
making something larger, more important, better or worse
than it is”. Merriam-Webster defines the term “exaggerate”
as to “enlarge beyond bounds or the truth”. The Concise
Oxford Dictionary defines it as “enlarged or altered beyond
normal proportions”. These expressions unambiguously
suggest that the genesis of an ‘exaggerated statement’ lies in
a fact, to which fictitious additions are made to make it more
penetrative. Every exaggeration, therefore, has the
ingredients of ‘truth’. No exaggerated statement is possible
without an element of truth. On the other hand, the Advance
Law Lexicon defines “false” as “erroneous, untrue; opposite
of correct, or true”. Oxford Concise Dictionary states that
“false” is “wrong; not correct or true”. Similar is the
explanation in other dictionaries as well. There is, thus, a
marked differential between an ‘exaggerated version’ and a
‘false version’. An exaggerated statement contains both
truth and falsity, whereas a false statement has no grain of
truth in it (being the ‘opposite’ of ‘true’). It is well said that
to make a mountain out of a molehill, the molehill shall have
to exist primarily. A Court of law, being mindful of such
distinction is duty bound to disseminate ‘truth’ from
‘falsehood’ and sift the grain from the chaff in case of
exaggerations. It is only in a case where the grain and the
chaff are so inextricably intertwined that in their separation
no real evidence survives, that the whole evidence can be
discarded. [Sucha Singh v. State of Punjab, (2003) 7 SCC 643,
18.]
25. Learned State counsel has rightly relied on Gangadhar
Behera (Supra) to contend that even in cases where a major
portion of the evidence is found deficient if the residue is
sufficient to prove the guilt of the accused, a conviction can
be based on it. This Court in Hari Chand v. State of Delhi,
(1996) 9 SCC 112 held that:
“24. …So far as this contention is concerned it must
be kept in view that while appreciating the evidence
of witnesses in a criminal trial, especially in a case of
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Neutral Citation No. ( 2025:HHC:2282-DB )eyewitnesses the maxim falsus in uno, falsus in
omnibus cannot apply and the court has to make
efforts to sift the grain from the chaff. It is of course
true that when a witness is said to have exaggerated
in his evidence at the stage of trial and has tried to
involve many more accused and if that part of the
evidence is not found acceptable the remaining part
of the evidence has to be scrutinised with care and the
court must try to see whether the acceptable part of
the evidence gets corroborated from other evidence
on record so that the acceptable part can be safely
relied upon…”
26. There is no gainsaid that homicidal deaths cannot be left
to judicium dei. The Court in their quest to reach the truth
ought to make earnest efforts to extract gold out of the heap
of black sand. The solemn duty is to dig out the authenticity.
It is only when the Court, despite its best efforts, fails to
reach a firm conclusion that the benefit of the doubt is
extended.
27. An eye-witness is always preferred to others. The
statements of P.W.1, P.W.11 and P.W.12 are, therefore, to be
analysed accordingly, while being mindful of the difference
between exaggeration and falsity. We find that the truth can
be effortlessly extracted from their statements. The trial
Court fell in grave error and overlooked the credible and
consistent evidence while proceeding with a baseless
premise that the exaggerated statements made by the
eyewitnesses belie their version.”
59. It was laid down by the Hon’ble Supreme Court in
Arvind Kumar @ Nemichand and others Versus State of Rajasthan,
2022 Cri. L.J. 374, that the testimony of a witness cannot be
discarded because he had made a wrong statement regarding some
aspect. The principle that when a witness deposes falsehood his
entire statement is to be discarded does not apply to India. It was
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Neutral Citation No. ( 2025:HHC:2282-DB )
observed: –
“48. The principle that when a witness deposes falsehood,
the evidence in its entirety has to be eschewed may not have
a strict application to the criminal jurisprudence in our
country. The principle governing sifting the chaff from the
grain has to be applied. However, when the evidence is
inseparable and such an attempt would either be impossible
or would make the evidence unacceptable, the natural
consequence would be one of avoidance. The said principle
has not assumed the status of law but continues only as a
rule of caution. One has to see the nature of the discrepancy
in a given case. When the discrepancies are very material
shaking the very credibility of the witness leading to a
conclusion in the mind of the court that it is neither possible
to separate it nor to rely upon, it is for the said court to either
accept or reject.”
60. In the present case the improvements brought out in
the cross-examination are minor in nature. They are elucidations
of the facts already stated by the witness to the police and will not
fall within the definition of an improvement.
61. The manner of the cross-examination of the witness is
also not as per the provisions of Section 162 of Cr.P.C. He was asked
about what he had told the police, and thereafter, he was
confronted with the previous statement. This is an attempt to
prove the previous statement recorded by the police under Section
162 of Cr.P.C., which is impermissible. Therefore, no reliance can
be placed upon the confrontation of this witness with the previous
statement recorded by the police.
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Neutral Citation No. ( 2025:HHC:2282-DB )
62. It was submitted that he had noticed the accused
because, according to him, they were present in the odd hours. He
was also present at odd hours; therefore, his presence is also
suspect. This submission is not acceptable. He has mentioned his
age as 62 years, which means that he is not working anywhere. He
explained that the people normally remain present near the temple
in the morning before office hours, which is also plausible because
people would go to the temple before going to their places of work,
and their presence near the temple during office hours would not
be normal. Therefore, any person seen near the temple during
office hours would strike anyone as odd. He found subsequently
that a murder was committed by the persons on the motorcycle
which would have compelled him to reflect about the presence of
the motorcyclist as unusual.
63. He had also identified the accused as the persons who
were present outside the temple. Admittedly, the temple is in the
vicinity of the factory, and the presence of the accused near the
temple in the vicinity of the factory immediately before the
shooting incident would establish their presence near the scene of
the crime. His testimony, coupled with the testimony of
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Neutral Citation No. ( 2025:HHC:2282-DB )
Dharmanand (PW15), establishes the presence of the accused at the
scene of the crime.
64. Dharmanand (PW15) and Chajju Ram (PW4)
categorically stated that the boys had a motorcycle with them.
Vicky Thakur (PW7) stated that he is the owner of the motorcycle.
He knew Rajeev Kaushal and Sunil @ Charna. Sunil was working in
the Jeewan market, and Rajeev used to remain with him. He
identified them in the Court. Rajeev telephoned him (Vicky) on
14.02.2013 and requested him to provide a motorcycle for going to
Peer Nigah at 8:00 am. He asked his servant Rinku to give a
motorcycle to Rajeev. Rinku gave a motorcycle bearing registration
No. HP-20C-2713 to Sunil @ Charna near Bedi Petrol Pump. He got
his motorcycle released from the Court. He stated in his cross-
examination that Rinku had delivered the motorcycle at a distance
of 6-7 kilometres from his house. He (Vicky) was called to the
police post in Mehatpur on 15.02.2013 at around 10:00 am. His
statement was not recorded on that day. His statement was
recorded on 18th February. Rajeev was working in Mini Top, and
Kanchan Jeweller shop in Jeewan Market. He did not know the
names of the owners. He knew that triple riding was an offence. He
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Neutral Citation No. ( 2025:HHC:2282-DB )
was told by Rajeev that he and his two friends wanted to go to Peer
Nigah.
65. His testimony is duly corroborated by Rinku (PW8). He
stated that he was working in the shop of Vicky. Vicky asked him on
14.02.2013 at about 9:00 am to hand over the motorcycle to Sunil
Kumar @ Charna near the petrol pump. He delivered the
motorcycle to Charna at 9:15 am. Charna disclosed that he and his
friends were going to Peer Nigah. He identified Charna and Rajeev
Kaushal in the Court. He stated in his cross-examination that
police had called him and Vicky at 10:00 am on 15.02.2013. His
statement was not recorded on 16.02.2013 and 17.02.2013. He did
not have a valid driving licence. He denied that he had not
delivered any motorcycle to Charna.
66. There is nothing in their cross-examination to show
that they were making false statements. They knew Rajeev and
Charna; therefore, they were in a position to identify them. Their
testimonies duly proved that Rajeev had demanded the motorcycle
from Vicky and Rinku had delivered the motorcycle to Charna.
67. Tushar (PW5) stated that he had been working as a
Manager at Saini Guest House. Rajeev Kaushal and Sunil had stayed
in the Guest House on 14.02.2013 during the night. They visited the
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Neutral Citation No. ( 2025:HHC:2282-DB )
guest house at 8:15 pm. Rajeev Kaushal made an entry (Ext. PW5/A)
in the register. He had charged ₹450/- from Rajeev Kaushal. The
police seized the motorcycle bearing registration No. HP-20C-2713
from the parking of the guest house vide memo (Ext. PW5/C). He
stated in his cross-examination that he had not taken identity
proof of these persons. He admitted that the purpose of visiting the
guest house was not disclosed. The entries were made by the
visitors. He admitted that he had not put his initials against the
entries or had not affixed the stamp of the hotel. He admitted that
he did not know all the persons mentioned in the register.
68. His testimony regarding the fact that Rajeev had put his
signatures on the register is duly corroborated by the statement of
Dr. Minakshi Mahajan (PW46), who examined the specimen
handwriting and the disputed handwriting. She found that the
specimen handwriting of Rajeev was similar to the disputed
handwriting on the register. The accused-Rajeev did not dispute in
his statement recorded under Section 313 Cr.P.C. that his signatures
were obtained before the learned Magistrate. Therefore, there is no
doubt regarding the authenticity of the specimen’s handwriting.
The testimony of Dr Minakshi Mahajan proves that the specimen
handwriting of Rajeev was similar to the disputed handwriting on
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Neutral Citation No. ( 2025:HHC:2282-DB )
the register, and this corroborates the testimony of Tushar that
Rajiv and Sunil had stayed in the guest house. Recovery of the
motorcycle of Vicky from the premises of the Saini Guest House
corroborates his version that he had delivered the motorcycle to
Rajeev and Sunil. They were staying in the guest house, and the
motorcycle was recovered from the guest house. This clearly shows
that they had used the motorcycle since it was handed over to them
in the morning by Vicky Thakur. In the absence of any explanation
from the accused either in the cross-examination of the witnesses
or the statement of the accused recorded under Section 313 of
Cr.P.C., the only inference which can be drawn is that they were the
persons riding the motorcycle of Vicky at the place of incident.
69. Surender Kumar (DW11), stated that he had
accompanied his son Rajeev Kaushal to bus stand Una from where
he boarded an HRTC Bus for Chandigarh. The bus left the bus stand
at 9:30 AM. He is the father of the accused and has an interest in
saving his son. Further, he had only seen the accused boarding the
bus for Chandigarh and could not have deposed anything when the
accused had in fact reached Chandigarh or not. The incident had
taken place at 12.30 PM after three hours, when the accused Rajeev
Kaushal is stated to have boarded the bus. Hence, his testimony
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Neutral Citation No. ( 2025:HHC:2282-DB )
does not rule out the presence of accused Rajeev Kaushal at the
place of the incident. Moreover, no bus tickets were produced to
support his version. No passenger of the bus was examined. Thus,
his statement is not sufficient to prove that the accused Rajeev was
at Chandigarh at the time of the incident.
70. Accused-Rajeev Kaushal made a disclosure statement
(Ext. PW1/D) in the presence of Ashwani Jain, Birbal and Abhay
Jain, that he had concealed a gun at a distance of about 200 meters
beneath the heap of wood which could be got recovered by him. He
led the witnesses to the spot from where the gun was recovered
vide memo (Ext. PW1/G). Surinder Sharma (PW51) stated that
Rajeev Kaushal made a disclosure statement on 15.02.2013 that he
had concealed the weapon of offence near Primary School Dehla
under some logs of wood and could get it recovered. Memo (Ext.
PW1/D) was prepared in the presence of Ashwani Jain, Abhay Jain
and Birbal. The accused led the police party to the place where the
weapon was hidden by him. He got recovered a country-made 12-
bore gun placed in a plastic bag with two live cartridges and one
empty shell from underneath a heap of wood. The weapon of
offence was found to be 25.5 inches long. He prepared the sketch of
the weapon. He denied in his cross-examination that Rajeev
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Neutral Citation No. ( 2025:HHC:2282-DB )
Kaushal was detained by the police on the evening of 14.02.2013. He
stated that the accused was arrested on 15.02.2013. He denied that
the statement under Section 27 of the Indian Evidence Act was
fabricated by him in connivance with Ashwani Jain and Babita Jain.
71. Ashwani Jain (PW1) stated that he had visited the police
post in Mehatpur along with his nephew Abhay Jain. Rajeev
Kaushal was brought from another room. He disclosed that he
could get the gun recovered, and he knew about the place where
the gun was kept. He had kept the gun in the heap of the wood near
Primary School Dehla. The statement (Ext. PW1/D) was reduced
into writing. The accused got recovered a gun lying in a plastic bag
of IFFCO from Dehla near Primary School from the fields of
mustard kept beneath the heap of wood. Two live cartridges and
one empty cartridge were also recovered. The police prepared the
sketch and measured its length, which was found to be 25.5 inches.
Barrel was 20 inches in length. The police seized the gun and
prepared the site plan. He stated in his cross-examination that the
accused was kept in a separate room. One person was brought by
the police. The police questioned him for half an hour. He had seen
him for the first time. The questioning ended at around 4:30-5:00
pm. He had seen the school of Dehla on that day for the first time.
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He admitted that lower Dehla is thickly populated and has a
population of more than 5000. He denied that shops were located
near Primary School Dehla. He admitted that fields were located
near the place, and crop of wheat and mustard was sown. He
denied that police were already present near the school. He did not
know the ownership of the field. The police had not affixed any
special mark on the gun.
72. His statement is corroborated by Birbal (PW2), who
stated that he went to the police post Mehatpur on 15.02.2013.
Ashwani and Abhay Jain were already present in the police post.
The police officials disclosed that the accused had confessed his
guilt and that he had hidden the gun in the field under the heap of
wood. This fact was also disclosed by the accused. The police
obtained his signatures on the document. The police official took
the accused in a vehicle. He went to the spot in a car. The vehicles
were stopped near Primary School Dehla. Rajeev took the police
party to the spot. He and other police officials were following the
accused. The videography was also conducted. Accused Rajeev
Kaushal got one white bag containing a black gun and two live
cartridges recovered. The gun was opened, and one used fire
cartridge was found in the barrel of the gun. The gun was sealed
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Neutral Citation No. ( 2025:HHC:2282-DB )
and it was taken in possession. He stated in his cross-examination
that he was the Secretary of the Society and never appeared as a
witness of the police in any case. He admitted that the houses were
located at a distance of 200 meters from the Primary School. He
reached police post Mehatpur at about 3:30 pm. Dy.S.P. Surinder,
an Inspector and other police officials were present at the police
post. The police official had brought the paper. He went to the spot
in an Alto car. They returned at 6:15 pm. He had signed the memo
on the spot. He denied that no disclosure statement was made and
he was making a false statement.
73. There is nothing in the cross-examination of these
witnesses to show that they were making incorrect statements.
They have consistently stated that the accused, Rajeev, disclosed to
the police that he could get the gun recovered, which was
concealed by him beneath the heap of the woods and the accused
got the gun containing one fired cartridge and two live cartridges
recovered.
74. The disclosure statement and the consequent recovery
were video recorded. It was submitted that the CD (Ext. PW34/A)
showed the date of recording as 16.02.2013 and the time as 1:00
PM, which falsified the recovery. Learned Trial Court had rightly
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Neutral Citation No. ( 2025:HHC:2282-DB )
pointed out that the time is manually set in the Handycam, and
merely because there was a different date and time in the video
recording will not make the prosecution case regarding the
recovery suspect when it was supported by so many witnesses.
75. Rajesh Kumar, Assistant Director, RFSL, examined the
gun and the cartridge. He issued the report (Ext. PX) showing that
the pellets could have been fired from the cartridge found in the
gun. He admitted in his cross-examination that every firearm has
its characteristics, and pellets have to be compared with the test-
fired pellets in the laboratory. He explained that the comparison of
12-bore cartridge pellets and smooth-bore firearms becomes
difficult. He admitted that he had not compared the bullets in the
present case.
76. He has provided a valid explanation for the non-
comparison by saying that the comparison is difficult in the case of
12-bore cartridges having smooth bores. The characteristic in the
cartridges is caused by defects during the manufacturing or the
patterns developed after the use of the firearm for a considerable
time. When the gun has a smooth barrel, the characteristic will not
appear making it difficult to carry out the comparison; hence, the
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Neutral Citation No. ( 2025:HHC:2282-DB )
statement of this witness cannot be discarded because he had not
noticed any characteristic.
77. Dr Nanveet Kumar (PW50), stated that he had handed
over the pellets to the police official accompanying the dead body
after taking them out of the dead body. As per the report of the
forensic experts, the pellets could have been fired from the gun
examined by him and got recovered by the accused Rajeev. Thus, it
is duly proved that the gun recovered at the instance of Rajeev
Kaushal was used for shooting. This provides valuable
corroboration to the testimony of Dharma Nand (PW15) that Rajeev
had shot at the deceased, and the accused, Sunil and Arun Kumar
were present with him. Arun Kumar was driving the motorcycle
while Sunil was sitting as a pillion rider.
78. Ms Sheetal Vyas, learned counsel for the accused-Arun
Kumar, submitted that merely riding the motorcycle cannot lead to
an inference of the common intention. Reliance was placed upon
Malkhan Singh (supra) in support of this submission. In Malkhan
Singh, the main accused and co-accused were found cycling. The
Hon’ble Supreme Court held that Malkhan Singh had not
instigated Munshi Lal to fire at the victim. Malkhan Singh and the
victim were not known to each other, and he had no motive. The
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Neutral Citation No. ( 2025:HHC:2282-DB )
mere fact that Malkhan Singh continued to peddle the bicycle and
ran away with Munish Lal cannot lead to an inference that the shot
was fired by Munish Lal in furtherance of the common intention.
In the present case, the prosecution has led the evidence that the
accused, Rajeev Kaushal and Sunil @ Charna, had taken the
motorcycle from Vicky in the morning. All of them were moving
together. The accused were also found to be staying together after
the incident in Saini Guest House. All these circumstances can only
lead to an inference that all the accused had entered into a criminal
conspiracy and learned Trial Court had rightly held them guilty of
criminal conspiracy to murder the deceased Vinod Jain.
79. The case against the accused, Anil Kumar @ Sethu, is
based upon the fact that he was in touch with the accused-Pradeep
Gupta. He was also in touch with the other co-accused. It was
asserted that he was acting as a conduit between Pradeep Gupta
and the other accused. The prosecution relied upon the call detail
records to prove this fact. Learned Trial Court held that in the
absence of the certificate under Section 65B of the Indian Evidence
Act, the call detail records were inadmissible in evidence. It was
laid down by the Hon’ble Supreme Court in Anvar P.V. v. P.K.
Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (Civ)
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Neutral Citation No. ( 2025:HHC:2282-DB )
27 : (2015) 1 SCC (L&S) 108: 2014 SCC OnLine SC 732 that the
electronic record is inadmissible without the certificate under
Section 65B of Indian Evidence Act. It was observed at page 486:
“22. The evidence relating to electronic record, as noted
hereinbefore, being a special provision, the general law on
secondary evidence under Section 63 read with Section 65 of
the Evidence Act shall yield to the same. Generalia specialibus
non derogant, special law will always prevail over general
law. It appears the court omitted to take note of Sections 59
and 65-A dealing with the admissibility of electronic
records. Sections 63 and 65 have no application in the case
of secondary evidence by way of electronic record; the same
is wholly governed by Sections 65-A and 65-B. To that
extent, the statement of the law on admissibility of
secondary evidence pertaining to electronic records, as
stated by this Court in Navjot Sandhu case [State (NCT of
Delhi) v. Navjot Sandhu, (2005) 11 SCC 600: 2005 SCC (Cri)
1715], does not lay down the correct legal position. It
requires to be overruled and we do so. An electronic record
by way of secondary evidence shall not be admitted in
evidence unless the requirements under Section 65-B are
satisfied. Thus, in the case of CD, VCD, chip, etc., the same
shall be accompanied by the certificate in terms of Section
65-B obtained at the time of taking the document, without
which, the secondary evidence pertaining to that electronic
record, is inadmissible.
80. It was held in Harpal Singh v. State of Punjab, (2017) 1
SCC 734 : (2017) 1 SCC (Cri) 513: 2016 SCC OnLine SC 1293 that the call
detail record is not admissible without the certificate under Section
65B of Indian Evidence Act. It was observed at page 754:
“56. Qua the admissibility of the call details, it is a matter of
record that though PWs 24, 25, 26 and 27 have endeavoured
to prove on the basis of the printed copy of the computer
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Neutral Citation No. ( 2025:HHC:2282-DB )generated call details kept in the usual ordinary course of
business and stored in a hard disc of the company server, to
co-relate the calls made from and to the cellphones involved
including those, amongst others recovered from the accused
persons, the prosecution has failed to adduce a certificate
relatable thereto as required under Section 65-B(4) of the
Act. Though the High Court, in its impugned judgment,
while dwelling on this aspect, has dismissed the plea of
inadmissibility of such call details by observing that all the
stipulations contained under Section 65 of the Act had been
complied with, in the teeth of the decision of this Court
in Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 :
(2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S)
108] ordaining an inflexible adherence to the enjoinments of
Sections 65-B(2) and (4) of the Act, we are unable to sustain
this finding. As apparently, the prosecution has relied upon
the secondary evidence in the form of the printed copy of the
call details, even assuming that the mandate of Section 65-
B(2) had been complied with, in the absence of a certificate
under Section 65-B(4), the same has to be held inadmissible
in evidence.
57. This Court in Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014)
10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015)
1 SCC (L&S) 108] has held in no uncertain terms that the
evidence relating to electronic record being a special
provision, the general law on secondary evidence under
Section 63 read with Section 65 of the Act would have to
yield thereto. It has been propounded that any electric
record in the form of secondary evidence cannot be admitted
in evidence unless the requirements of Section 65-B are
satisfied. This conclusion of ours is inevitable in view of the
exposition of law pertaining to Sections 65-A and 65-B of
the Act as above.”
81. A similar view was taken by this Court in Harbans Lal v.
State of H.P., 2016 SCC OnLine HP 228, wherein it was observed:
“24. Their lordships of the Hon’ble Supreme Court in the case
of Anvar P.V. v. P.K. Basheer, reported in (2014) 10 SCC 473, have
94
Neutral Citation No. ( 2025:HHC:2282-DB )held that production of copy of statement pertaining to
electronic record in evidence not being the original electronic
record, such statement has to be accompanied by a certificate
as specified in S. 65-B(4) and such certificate must accompany
electronic record like CD, VCD, pen drive etc. Their Lordships
have further held that under Section 65-B(4) of the Evidence
Act, if it is desired to give a statement in any proceedings
pertaining to an electronic record, it is permissible provided the
conditions are satisfied. It has been held as follows:
“15. Under Section 65B(4) of the Evidence Act, if it is desired
to give a statement in any proceedings pertaining to an
electronic record, it is permissible provided the following
conditions are satisfied:
(a) There must be a certificate which identifies the
electronic record containing the statement;
(b) The certificate must describe the manner in which
the electronic record was produced;
(c) The certificate must furnish the particulars of the
device involved in the production of that record;
(d) The certificate must deal with the applicable
conditions mentioned under Section 65B(2) of the
Evidence Act; and
(e) The certificate must be signed by a person
occupying a responsible official position in relation to
the operation of the relevant device.
16. It is further clarified that the person needs only to state
in the certificate that the same is to the best of his
knowledge and belief. Most importantly, such a certificate
must accompany the electronic record like computer
printout, Compact Disc (CD), Video Compact Disc (VCD), pen
drive, etc., pertaining to which a statement is sought to be
given in evidence when the same is produced in evidence. All
these safeguards are taken to ensure the source and
authenticity, which are the two hallmarks pertaining to
electronic records sought to be used as evidence. Electronic
records being more susceptible to tampering, alteration,
transposition, excision, etc. without such safeguards, the
95
Neutral Citation No. ( 2025:HHC:2282-DB )whole trial based on proof of electronic records can lead to a
travesty of justice.
17. Only if the electronic record is duly produced in terms of
Section 65B of the Evidence Act, the question would arise as
to the genuineness thereof and in that situation, the resort
can be made to Section 45A-opinion of examiner of
electronic evidence.
18. The Evidence Act does not contemplate or permit the
proof of an electronic record by oral evidence if
requirements under Section 65B of the Evidence Act are not
complied with, as the law now stands in India.”
82. A similar view was taken in Madan Kansagra v. Perry
Kansagra, (2021) 12 SCC 289 : (2023) 2 SCC (Civ) 512 : 2020 SCC
OnLine SC 887 wherein it was observed at page 329:
21.7. This Court in a recent decision delivered by a Bench of
three Judges in Arjun Panditrao Khotkar v. Kailash Kushanrao
Gorantyal [Arjun Panditrao Khotkar v. Kailash Kushanrao
Gorantyal, (2020) 7 SCC 1 : (2020) 4 SCC (Civ) 1 : (2020) 3 SCC
(Cri) 1 : (2020) 2 SCC (L&S) 587] held as under : (SCC p. 56,
para 61)
“61. We may reiterate, therefore, that the certificate
required under Section 65-B(4) is a condition precedent to
the admissibility of evidence by way of electronic record, as
correctly held in Anvar P.V. [Anvar P.V. v. P.K. Basheer,
(2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri)
24 : (2015) 1 SCC (L&S) 108] , and incorrectly “clarified”
in Shafhi Mohammad [Shafhi Mohammad v. State of H.P.,
(2018) 2 SCC 801 : (2018) 2 SCC (Civ) 346 : (2018) 1 SCC (Cri)
860] . Oral evidence in the place of such certificate cannot
possibly suffice as Section 65-B(4) is a mandatory
requirement of the law. Indeed, the hallowed principle
in Taylor v. Taylor [Taylor v. Taylor, (1875) LR 1 Ch D 426] ,
which has been followed in a number of the judgments of
this Court, can also be applied. Section 65-B(4) of the
Evidence Act clearly states that secondary evidence is
admissible only if led in the manner stated and not
96
Neutral Citation No. ( 2025:HHC:2282-DB )
otherwise. To hold otherwise would render Section 65-B(4)
otiose.” (emphasis supplied)
83. This position was reiterated in Sundar v. State, 2023 SCC
OnLine SC 310 wherein it was observed:
“37. Therefore, the law is now settled: a Section 65B
certificate is mandatory in terms of this Court’s judgment
in Anvar P.V. as confirmed in Arjun Panditrao Khotkar.”
84. Thus, learned Trial Court had rightly discarded the call
details record.
85. The learned Trial Court further held that the call detail
record is only one piece of evidence, and even if it is excluded, the
other evidence established that accused Pradeep Gupta and Anil @
Sethu had entered into a conspiracy. However, learned Trial Court
has not given the details of the other evidence.
86. It was submitted that accused Pradeep Gupta had got
down the vehicle of Anil @ Sethu at Mehatpur Chowk and he had
also made inquiries regarding the arrival of Vinod Jain from Duben
Prasad. Reliance was placed upon the statement of Duben Prasad
(PW16) to prove this fact. This statement, even if accepted to be
correct, does not show any conspiracy. At the most; it may give rise
to suspicion, however, the suspicion, howsoever grave it may be,
does not amount to any proof, and the conviction cannot be
recorded based on the suspicion alone.
97
Neutral Citation No. ( 2025:HHC:2282-DB )
87. We have already held that the statement of Duben
Prasad @ Pandy is not believable. He has tried to show that he had
witnessed much more than Dharma Nand (PW15) had done, which
was not possible for him, keeping in view the fact that he was
walking behind Dharmanand. Therefore, he is shown to be an
unreliable witness, and it is difficult to rely upon his testimony
that he was called by accused Pradeep, who had got down at
Mehatpur Chowk; hence, there is insufficient evidence to prove
that the accused Pradeep had got down at Mehatpur Chowk.
88. It is an admitted case of the prosecution that the vehicle
of Anil Kumar @ Sethu was being hired by the factory. Babita
(PW42) admitted in her examination-in-chief that Pradeep Gupta
used to hire a taxi for going to and fro. The accused also did not
dispute in their statements recorded under Section 313 of Cr.P.C.
that the vehicle of Anil @ Sethu was being hired by Pradeep Gupta.
Therefore, even if both of them were in touch with each other, it
cannot lead to an inference that it was in furtherance of conspiracy
to murder Vinod Jain. Pradeep Jain being the hirer of the vehicle
could very well have called Anil for calling his taxi.
89. There is no other circumstance showing the
involvement of Anil @ Sethu and the learned Trial Court erred in
98
Neutral Citation No. ( 2025:HHC:2282-DB )
holding Anil @ Sethu to be guilty of entering into a conspiracy with
Pradeep Gupta for murdering Vinod Jain.
90. The case against the accused-Pradeep Gupta, is that he
was managing the affairs of the factory. He had handed over a list
to the deceased in which the money was shown due to the debtors,
but no such money was due. He had embezzled the money and had
murdered Vinod Jain to conceal his embezzlement. Even if the case
of the prosecution is taken to be correct that the accused, Pradeep
Gupta, had furnished a false statement regarding the indebtedness
of certain persons in the list, that may furnish a motive to commit
the crime, but the motive by itself without any further evidence is
insufficient to convict him.
91. Learned Trial Court held that the list was proved to be in
the handwriting of Pradeep Gupta. The debtors list showed the
names of Vipin Kumar (PW19), Hari Om (PW17), and Madan Puri
(PW18) as the debtors. Even though they had paid the money to
Pradeep Gupta. Vinod Jain suspected the embezzlement in the
account by Pradeep Gupta. The meetings were fixed between Vinod
Jain and Pradeep Gupta. This finding only proves the
embezzlement of the money by Pradeep Gupta. However, in order
to hold the accused, Pradeep Gupta, guilty of conspiracy to commit
99
Neutral Citation No. ( 2025:HHC:2282-DB )
the murder, it has to be proved that he had entered into a
conspiracy with Rajeev Kaushal to murder the deceased. It was laid
down by the Hon’ble Supreme Court in Esher Singh v. State of A.P.,
(2004) 11 SCC 585 : 2004 SCC OnLine SC 320 that the prosecution has
to prove the agreement between the accused by direct or
circumstantial evidence. It was observed at page 604:
“34. Merely because the accused A-1 was holding the
deceased, as alleged, to be responsible for the killing of six
Sikh students, that per se does not prove conspiracy. Section
120-B IPC is the provision which provides for punishment
for criminal conspiracy. The definition of “criminal
conspiracy” given in Section 120-A reads as follows:
“120-A. When two or more persons agree to do, or cause
to be done,–
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an
agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to
commit an offence shall amount to a criminal conspiracy
unless some act besides the agreement is done by one or
more parties to such agreement in pursuance thereof.”
The elements of a criminal conspiracy have been stated to be
: (a) an object to be accomplished, (b) a plan or scheme
embodying means to accomplish that object, (c) an
agreement or understanding between two or more of the
accused persons whereby, they become definitely committed
to cooperate for the accomplishment of the object by the
means embodied in the agreement, or by any effectual
means, and (d) in the jurisdiction where the statute required
an overt act. The essence of a criminal conspiracy is the
unlawful combination and ordinarily the offence is complete
when the combination is framed. From this, it necessarily
100
Neutral Citation No. ( 2025:HHC:2282-DB )follows that unless the statute so requires, no overt act need
be done in furtherance of the conspiracy, and that the object
of the combination need not be accomplished, in order to
constitute an indictable offence. Law making conspiracy a
crime, is designed to curb immoderate power to do mischief
which is gained by a combination of minds. The
encouragement and support which co-conspirators give to
one another rendering enterprises possible which, if left to
individual effort, would have been impossible, furnish the
ground for visiting conspirators and abettors with condign
punishment. The conspiracy is held to be continued and
renewed as to encompass all its members wherever and
whenever any member of the conspiracy acts in furtherance
of the common design. (See American Jurisprudence, Vol. II,
Sec. 23, p. 559.) For an offence punishable under Section
120-B, the prosecution need not necessarily prove that the
perpetrators expressly agree to do or cause to be done illegal
act; the agreement may be proved by necessary implication.
Offence of criminal conspiracy has its foundation in an
agreement to commit an offence. A conspiracy consists not
merely in the intention of two or more, but in the agreement
of two or more to do an unlawful act by unlawful means. So
long as such a design rests in intention only, it is not
indictable. When two agree to carry it into effect, the very
plot is an act in itself, and an act of each of the parties,
promise against promise, actus contra actum, capable of
being enforced, if lawful, punishable if for a criminal object
or for use of criminal means.
35. No doubt, in the case of conspiracy there cannot be any
direct evidence. The ingredients of offence are that there
should be an agreement between persons who are alleged to
conspire and the said agreement should be for doing an
illegal act or for doing by illegal means an act which itself
may not be illegal. Therefore, the essence of criminal
conspiracy is an agreement to do an illegal act and such an
agreement can be proved either by direct evidence or by
circumstantial evidence or by both, and it is a matter of
common experience that direct evidence to prove conspiracy
101
Neutral Citation No. ( 2025:HHC:2282-DB )is rarely available. Therefore, the circumstances proved
before, during and after the occurrence have to be
considered to decide about the complicity of the accused.
36. In Halsbury’s Laws of England (vide 4th Edn., Vol. 11, p. 44,
para 58), the English law as to conspiracy has been stated
thus:
“58. Conspiracy consists in the agreement of two or more
persons to do an unlawful act, or to do a lawful act by
unlawful means. It is an indictable offence at common
law, the punishment for which is imprisonment or fine or
both in the discretion of the court.
The essence of the offence of conspiracy is the fact of
combination by agreement. The agreement may be
express or implied, or in part express and in part implied.
The conspiracy arises and the offence is committed as
soon as the agreement is made; and the offence continues
to be committed so long as the combination persists, that
is until the conspiratorial agreement is terminated by
completion of its performance or by abandonment or
frustration or however it may be. The actus reus in a
conspiracy is the agreement to execute the illegal
conduct, not the execution of it. It is not enough that two
or more persons pursued the same unlawful object at the
same time or in the same place; it is necessary to show a
meeting of minds, a consensus to effect an unlawful
purpose. It is not, however, necessary that each
conspirator should have been in communication with
every other.”
37. There is no difference between the mode of proof of the
offence of conspiracy and that of any other offence, it can be
established by direct or circumstantial evidence.
(See Bhagwan Swarup Lal Bishan Lal v. State of
Maharashtra [AIR 1965 SC 682, 686 : (1965) 1 Cri LJ 608] .)
38. It was held that the expression “in reference to their
common intention” in Section 10 is very comprehensive and
it appears to have been designedly used to give it a wider
scope than the words “in furtherance of” in the English law;
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Neutral Citation No. ( 2025:HHC:2282-DB )
with the result, anything said, done or written by a co-
conspirator, after the conspiracy was formed, will be
evidence against the other before he entered the field of
conspiracy or after he left it. Anything said, done or written
is a relevant fact only
“… ‘as against each of the persons believed to be so
conspiring as well for the purpose of proving the
existence of the conspiracy as for the purpose of showing
that any such person was a party to it’. … In short, the
section can be analysed as follows : (1) There shall be a
prima facie evidence affording a reasonable ground for a
court to believe that two or more persons are members of
a conspiracy; (2) if the said condition is fulfilled,
anything said, done or written by any one of them in
reference to their common intention will be evidence
against the other; (3) anything said, done or written by
him should have been said, done or written by him after
the intention was formed by any one of them; (4) it would
also be relevant for the said purpose against another who
entered the conspiracy whether it was said, done or
written before he entered the conspiracy or after he left
it; and (5) it can only be used against a co-conspirator
and not in his favour.” (AIR p. 687, para 8)
We are aware of the fact that direct independent evidence of
criminal conspiracy may not ordinarily and is generally not
available and its existence invariably is a matter of inference
except as rare exceptions. The inferences are normally
deduced from acts of parties in pursuance of a purpose in
common between the conspirators. This Court in V.C.
Shukla v. State (Delhi Admn.) [(1980) 2 SCC 665 : 1980 SCC
(Cri) 561] held that to prove criminal conspiracy there must
be evidence, direct or circumstantial, to show that there was
an agreement between two or more persons to commit an
offence. There must be a meeting of minds resulting in
ultimate decision taken by the conspirators regarding the
commission of an offence and where the factum of
conspiracy is sought to be inferred from circumstances, the
prosecution has to show that the circumstances give rise to a
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Neutral Citation No. ( 2025:HHC:2282-DB )
conclusive or irresistible inference of an agreement between
two or more persons to commit an offence. As in all other
criminal offences, the prosecution has to discharge its onus
of proving the case against the accused beyond reasonable
doubt. The circumstances in a case, when taken together on
their face value, should indicate the meeting of minds
between the conspirators for the intended object of
committing an illegal act or an act which is not illegal, by
illegal means. A few bits here and a few bits there on which
the prosecution relies cannot be held to be adequate for
connecting the accused with the commission of the crime of
criminal conspiracy. It has to be shown that all means
adopted and illegal acts done were in furtherance of the
object of conspiracy hatched. The circumstances relied on
for the purposes of drawing an inference should be prior in
point of time than the actual commission of the offence in
furtherance of the alleged conspiracy.
39. Privacy and secrecy are more characteristics of a
conspiracy, than of a loud discussion in an elevated place
open to public view. Direct evidence in proof of a conspiracy
is seldom available; offence of conspiracy can be proved by
either direct or circumstantial evidence. It is not always
possible to give affirmative evidence about the date of the
formation of the criminal conspiracy, about the persons who
took part in the formation of the conspiracy, about the
object, which the objectors set before themselves as the
object of conspiracy, and about the manner in which the
object of conspiracy is to be carried out, all this is necessarily
a matter of inference.
40. The provisions of Sections 120-A and 120-B IPC have
brought the law of conspiracy in India in line with the
English law by making the overt act unessential when the
conspiracy is to commit any punishable offence. The English
law on this matter is well settled. Russell on Crime (12th Edn.,
Vol. I, p. 202) may be usefully noted:
“The gist of the offence of conspiracy then lies, not in
doing the act, or effecting the purpose for which the
conspiracy is formed, nor in attempting to do them, nor
104
Neutral Citation No. ( 2025:HHC:2282-DB )in inciting others to do them, but in the forming of the
scheme or agreement between the parties, agreement is
essential. Mere knowledge, or even discussion, of the
plan is not, per se, enough.”
Glanville Williams in Criminal Law (2nd Edn., p. 382) states:
“The question arose in an Iowa case, but it was discussed
in terms of conspiracy rather than of accessoryship. D,
who had a grievance against P, told E that if he would
whip P someone would pay his fine. E replied that he did
not want anyone to pay his fine, that he had a grievance
of his own against P and that he would whip him at the
first opportunity. E whipped P. D was acquitted of
conspiracy because there was no agreement for ‘concert
of action’, no agreement to ‘cooperate’.”
Coleridge, J. while summing up the case to the jury
in R. v. Murphy [(1837) 173 ER 502 : 8 Car & P 297] (ER at p.
508) states:
“… I am bound to tell you, that although the common
design is the root of the charge, it is not necessary to
prove that these two parties came together and actually
agreed in terms to have this common design and to
pursue it by common means, and so to carry it into
execution. This is not necessary, because in many cases of
the most clearly established conspiracies there are no
means of proving any such thing and neither law nor
common sense requires that it should be proved. If you
find that these two persons pursued by their acts the
same object, often by the same means, one performing
one part of an act, and the other another part of the same
act, so as to complete it, with a view to the attainment of
the object which they were pursuing, you will be at liberty
to draw the conclusion that they have been engaged in a
conspiracy to effect that object. The question you have to
ask yourselves is, ‘Had they this common design, and did
they pursue it by these common means — the design
being unlawful?’ ”
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Neutral Citation No. ( 2025:HHC:2282-DB )
41. As noted above, the essential ingredient of the offence of
criminal conspiracy is the agreement to commit an offence.
In a case where the agreement is for accomplishment of an
act which by itself constitutes an offence, then in that event
no overt act is necessary to be proved by the prosecution
because in such a situation, criminal conspiracy is
established by proving such an agreement. Where the
conspiracy alleged is with regard to commission of a serious
crime of the nature as contemplated in Section 120-B read
with the proviso to sub-section (2) of Section 120-A, then in
that event mere proof of an agreement between the accused
for commission of such a crime alone is enough to bring
about a conviction under Section 120-B and the proof of any
overt act by the accused or by any one of them would not be
necessary. The provisions, in such a situation, do not require
that each and every person who is a party to the conspiracy
must do some overt act towards the fulfilment of the object
of conspiracy, the essential ingredient being an agreement
between the conspirators to commit the crime and if these
requirements and ingredients are established, the act would
fall within the trappings of the provisions contained in
Section 120-B. (See Suresh Chandra Bahri v. State of
Bihar [1995 Supp (1) SCC 80 : 1995 SCC (Cri) 60 : AIR 1994 SC
2420] .)
42. Conspiracies are not hatched in the open, by their
nature, they are secretly planned, they can be proved even by
circumstantial evidence, the lack of direct evidence relating
to conspiracy has no consequence. (See E.K.
Chandrasenan v. State of Kerala [(1995) 2 SCC 99 : 1995 SCC
(Cri) 329 : AIR 1995 SC 1066] .)
43. In Kehar Singh v. State (Delhi Admn.) [(1988) 3 SCC 609 :
1988 SCC (Cri) 711 : AIR 1988 SC 1883] (AIR at p. 1954) this
Court observed : (SCC pp. 732-33, para 275)“275. Generally, a conspiracy is hatched in secrecy and it
may be difficult to adduce direct evidence of the same.
The prosecution will often rely on evidence of acts of
various parties to infer that they were done in reference
to their common intention. The prosecution will also
106
Neutral Citation No. ( 2025:HHC:2282-DB )
more often rely upon circumstantial evidence. The
conspiracy can be undoubtedly proved by such evidence
direct or circumstantial. But the court must enquire
whether the two persons are independently pursuing the
same end or they have come together in the pursuit of the
unlawful object. The former does not render them
conspirators, but the latter does. It is, however, essential
that the offence of conspiracy required some kind of
physical manifestation of agreement. The express
agreement, however, need not be proved. Nor actual
meeting of the two persons is necessary. Nor is it
necessary to prove the actual words of communication.
The evidence as to transmission of thoughts sharing the
unlawful design may be sufficient.”
“Conspiracy can be proved by circumstances and other
materials.” (See State of Bihar v. Paramhans Yadav [1986
Pat LJR 688 (HC)] .)“[T]o establish a charge of conspiracy knowledge about
indulgence in either an illegal act or a legal act by illegal
means is necessary. In some cases, intent of unlawful use
being made of the goods or services in question may be
inferred from the knowledge itself. This apart, the
prosecution has not to establish that a particular unlawful
use was intended, so long as the goods or service in
question could not be put to any lawful use. Finally, when
the ultimate offence consists of a chain of actions, it
would not be necessary for the prosecution to establish,
to bring home the charge of conspiracy, that each of the
conspirators had the knowledge of what the collaborator
would do, so long as it is known that the collaborator
would put the goods or service to an unlawful
use.“(emphasis in original)(See State of Maharashtra v. Som Nath Thapa [(1996) 4 SCC
659 : 1996 SCC (Cri) 820 : JT (1996) 4 SC 615] , SCC p. 668,
para 24.)
44. The most important ingredient of the offence being the
agreement between two or more persons to do an illegal act.
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Neutral Citation No. ( 2025:HHC:2282-DB )
In a case where criminal conspiracy is alleged, the court
must inquire whether the two persons are independently
pursuing the same end or they have come together to pursue
the unlawful object. The former does not render them
conspirators but the latter does. For the offence of
conspiracy, some kind of physical manifestation of
agreement is required to be established. The express
agreement need not be proved. The evidence as to the
transmission of thoughts sharing the unlawful act is
sufficient. A conspiracy is a continuing offence which
continues to subsist till it is executed or rescinded or
frustrated by choice of necessity. During its subsistence
whenever any one of the conspirators does an act or series of
acts, he would be held guilty under Section 120-B IPC.
45. In Ajay Aggarwal v. Union of India [(1993) 3 SCC 609: 1993
SCC (Cri) 961: JT (1993) 3 SC 203] it was held as follows : (SCC
pp. 617-18, paras 8-10)
“8. … It is not necessary that each conspirator must know
all the details of the scheme nor be a participant at every
stage. It is necessary that they should agree for the design
or object of the conspiracy. Conspiracy is conceived as
having three elements : (1) agreement; (2) between two
or more persons by whom the agreement is effected; and
(3) a criminal object, which may be either the ultimate
aim of the agreement, or may constitute the means, or
one of the means by which that aim is to be
accomplished. It is immaterial whether this is found in
the ultimate objects. The common-law definition of
‘criminal conspiracy’ was stated first by Lord Denman
in Jones case [R. v. Jones, (1832) 4 B & Ad 345: 110 ER 485]
that an indictment for conspiracy must ‘charge a
conspiracy to do an unlawful act by unlawful means’ and
was elaborated by Willies, J. on behalf of the judges while
referring the question to the House of Lords
in Mulcahy v. R. [(1868) LR 3 HL 306] and the House of
Lords in unanimous decision reiterated
in Quinn v. Leathem [1901 AC 495: 85 LT 289 : (1900-03) All
ER Rep 1 (HL)] :
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Neutral Citation No. ( 2025:HHC:2282-DB )
‘A conspiracy consists not merely in the intention of
two or more, but in the agreement of two or more, to
do an unlawful act, or to do a lawful act by unlawful
means. So long as such a design rests in intention
only, it is not indictable. When two agree to carry it
into effect, the very plot is an act in itself, and the act
of each of the parties, promise against promise, actus
contra actum, capable of being enforced, if lawful;
punishable if for a criminal object, or for the use of
criminal means.’
9. This Court in E.G. Barsay v. State of Bombay [AIR 1961 SC
1762 : (1961) 2 Cri LJ 828] held:
‘The gist of the offence is an agreement to break the
law. The parties to such an agreement will be guilty of
criminal conspiracy, though the illegal act agreed to
be done has not been done. So too, it is an ingredient
of the offence that all the parties should agree to do a
single illegal act. It may comprise the commission of a
number of acts. Under Section 43 of the Penal Code,
1860, an act would be illegal if it is an offence or if it is
prohibited by law.’In Yash Pal Mittal v. State of Punjab [(1977) 4 SCC 540: 1978
SCC (Cri) 5] the rule was laid down as follows : (SCC p.
543, para 9)‘The very agreement, concert or league is the
ingredient of the offence. It is not necessary that all
the conspirators must know each and every detail of
the conspiracy as long as they are co-participators in
the main object of the conspiracy. There may be so
many devices and techniques adopted to achieve the
common goal of the conspiracy and there may be
division of performances in the chain of actions with
one object to achieve the real end of which every
collaborator must be aware and in which each one of
them must be interested. There must be unity of object
or purpose but there may be plurality of means
sometimes even unknown to one another, amongst
109
Neutral Citation No. ( 2025:HHC:2282-DB )the conspirators. In achieving the goal several
offences may be committed by some of the
conspirators even unknown to the others. The only
relevant factor is that all means adopted and illegal
acts done must be and purported to be in furtherance
of the object of the conspiracy even though there may
be sometimes misfire or overshooting by some of the
conspirators.’
10. In Mohd. Usman Mohd. Hussain Maniyar v. State of
Maharashtra [(1981) 2 SCC 443: 1981 SCC (Cri) 477] it was
held that for an offence under Section 120-B IPC, the
prosecution need not necessarily prove that the
conspirators expressly agreed to do or cause to be done
the illegal act, the agreement may be proved by necessary
implication.”
46. After referring to some judgments of the United States
Supreme Court and of this Court in Yash Pal Mittal
case [(1977) 4 SCC 540: 1978 SCC (Cri) 5] and Ajay Aggarwal
case [(1993) 3 SCC 609: 1993 SCC (Cri) 961: JT (1993) 3 SC 203]
the Court in State of Maharashtra v. Som Nath Thapa [(1996) 4
SCC 659: 1996 SCC (Cri) 820: JT (1996) 4 SC 615] (referred to
in Kehar Singh case [(1988) 3 SCC 609: 1988 SCC (Cri) 711: AIR
1988 SC 1883] ) summarised the position of law and the
requirements to establish the charge of conspiracy, as
under : (SCC p. 668, para 24)
“24. The aforesaid decisions, weighty as they are, lead us
to conclude that to establish a charge of
conspiracy knowledge about indulgence in either an
illegal act or a legal act by illegal means is necessary. In
some cases, the intent of unlawful use being made of the
goods or services in question may be inferred from the
knowledge itself. This apart, the prosecution has not to
establish that a particular unlawful use was intended, so
long as the goods or service in question could not be put
to any lawful use. Finally, when the ultimate offence
consists of a chain of actions, it would not be necessary
for the prosecution to establish, to bring home the charge
of conspiracy, that each of the conspirators had the
110
Neutral Citation No. ( 2025:HHC:2282-DB )
knowledge of what the collaborator would do, so long as
it is known that the collaborator would put the goods or
service to an unlawful use.” (emphasis in original)
(Also see State of Kerala v. P. Sugathan [(2000) 8 SCC 203:
2000 SCC (Cri) 1474] and Devender Pal Singh v. State of N.C.T.
of Delhi [(2002) 5 SCC 234: 2002 SCC (Cri) 978] .)
92. A similar view was taken in the Basheera Begam v. Mohd.
Ibrahim, (2020) 11 SCC 174 : (2020) 4 SCC (Cri) 220: 2020 SCC OnLine
SC 121 wherein it was observed at page 187:
28. There can be no doubt that direct evidence of conspiracy
is almost never available and that existence of conspiracy
has necessarily to be inferred from the circumstances of the
crime, as held by this Court in Vijay Shankar v. State of
Haryana [Vijay Shankar v. State of Haryana, (2015) 12 SCC
644 : (2016) 1 SCC (Cri) 151], Praful Sudhakar Parab v. State of
Maharashtra [Praful Sudhakar Parab v. State of Maharashtra,
(2016) 12 SCC 783 : (2016) 4 SCC (Cri) 116] and Satish
Nirankari v. State of Rajasthan [Satish Nirankari v. State of
Rajasthan, (2017) 8 SCC 497 : (2017) 4 SCC (Cri) 24] cited by
Mr Tulsi. It is however doubtful, whether the existence of
conspiracy can at all be inferred from the circumstances in
this case, considering the evidence adduced by the
prosecution.
93. There was no evidence on record that Pradeep Gupta
and Rajeev Kaushal were in touch with each other.
94. The learned Trial Court relied upon the fact that
Pradeep Gupta disclosed the name of Anil and Anil disclosed the
name of Rajeev during the investigation, which proved the
conspiracy. According to the learned Trial Court, this amounted to
a discovery of the fact. This finding cannot be sustained. It was laid
111
Neutral Citation No. ( 2025:HHC:2282-DB )
down by the Hon’ble Supreme Court in H.P. Admn. v. Om Prakash,
(1972) 1 SCC 249: 1972 SCC (Cri) 88 that discovery of a witness does
not amount to the fact discovered within the meaning of Section 27
of the Indian Evidence Act. It was observed:
“14. In the Full Bench Judgment of Seven Judges
in Sukhan v. Crown [ILR (1929) 10 Lah 283] which was
approved by the Privy Council in Pulukuri Kotayya case, Shadi
Lal, C.J., as he then was speaking for the majority pointed
out that the expression “fact” as defined by Section 3 of the
Evidence Act includes not only the physical fact which can be
perceived by the senses but also the psychological fact or
mental condition of which any person is conscious and that
it is in the former sense that the word used by the
Legislature refers to material and not to a mental fact. It is
clear therefore that what should be discovered is the
material fact and the information that is admissible is that
which has caused that discovery so as to connect the
information and the fact with each other as the “cause and
effect”. That information which does not distinctly connect
with the fact discovered or that portion of the information
which merely explains the material thing discovered is not
admissible under Section 27 and cannot be proved. As
explained by this Court as well as by the Privy Council,
normally Section 27 is brought into operation where a
person in police custody produces from some place of
concealment some object said to be connected with the
crime of which the informant is the accused. The
concealment of the fact which is not known to the police is
what is discovered by the information and lends assurance
that the information was true. No witness with whom some
material fact, such as the weapon of murder, stolen property
or other incriminating article is not hidden, sold or kept and
which is unknown to the Police can be said to be discovered
as a consequence of the information furnished by the
accused. These examples however are only by way of
illustration and are not exhaustive. What makes the
112
Neutral Citation No. ( 2025:HHC:2282-DB )information leading to the discovery of the witness
admissible is the discovery from him of the thing sold to him
or hidden or kept with him which the police did not know
until the information was furnished to them by the accused.
A witness cannot be said to be discovered if nothing is to be
found or recovered from him as a consequence of the
information furnished by the accused and the information
which disclosed the identity of the witness will not be
admissible…..”
95. It was laid down by the Hon’ble Supreme Court in
Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547:
(2020) 2 SCC (Cri) 361: 2019 SCC OnLine SC 588 that a statement
made by co-accused during the investigation is hit by Section 162
of Cr.P.C. and cannot be used as a piece of evidence. Further, the
confession made by the co-accused is inadmissible because of
Section 25 of the Indian Evidence Act. It was observed at page 568:
–
“44. Such a person viz. person who is named in the FIR, and
therefore, the accused in the eye of the law, can indeed be
questioned and the statement is taken by the police officer. A
confession, that is made to a police officer, would be
inadmissible having regard to Section 25 of the Evidence Act.
A confession, which is vitiated under Section 24 of the
Evidence Act would also be inadmissible. A confession unless
it fulfils the test laid down in Pakala Narayana Swami [Pakala
Narayana Swami v. King Emperor, 1939 SCC OnLine PC 1:
(1938-39) 66 IA 66: AIR 1939 PC 47] and as accepted by this
Court, may still be used as an admission under Section 21 of
the Evidence Act. This, however, is subject to the bar of
admissibility of a statement under Section 161 CrPC.
Therefore, even if a statement contains admission, the
113
Neutral Citation No. ( 2025:HHC:2282-DB )statement being one under Section 161, it would immediately
attract the bar under Section 162 CrPC.”
96. Therefore, the learned Trial Court erred in holding
accused Pradeep Gupta guilty of the commission of an offence
punishable under Section 302 of IPC read with Section 120B of IPC.
97. It was submitted that there are different versions of the
prosecution case. The versions in the FIR, inquest report and the
statement under Section 161 of Cr.P.C. cannot be reconciled. This
submission cannot be accepted. It was laid down by the Hon’ble
Supreme Court in Om Prakash Yadav v. Niranjan Kumar Upadhyay,
2024 SCC OnLine SC 3726 that a statement recorded under section
161 of CrPC cannot be used as a substantive piece of evidence. It
was observed:
“27…….However, it is settled law that a statement recorded
under Section 161 CrPC does not constitute substantive
evidence and can only be utilized for the limited purpose of
proving contradictions and/or omissions as envisaged under
Section 145 of the Evidence Act, 1872. This has been laid
down in a catena of decisions including in Parvat
Singh v. State of Madhya Pradesh reported in (2020) 4 SCC
33 which observed as follows:
“13.1…However, as per the settled proposition of law a
statement recorded under Section 161 CrPC is inadmissible in
evidence and cannot be relied upon or used to convict the
accused. As per the settled proposition of law, the statement
recorded under Section 161 CrPC can be used only to prove the
contradictions and/or omissions. Therefore, as such, the
High Court has erred in relying upon the statement of PW
8 recorded under Section 161 CrPC while observing that
114
Neutral Citation No. ( 2025:HHC:2282-DB )the appellants were having the lathis.”(emphasis
supplied)
78. The aforesaid position of law was reiterated in Birbal
Nath v. State of Rajasthan reported in 2023 SCC OnLine SC
1396 which observed as thus:
“19. A statement given to police during an investigation
under Section 161 cannot be read as an “evidence”. It has a
limited applicability in a Court of Law as prescribed under
Section 162 of the Code of Criminal Procedure (Cr.P.C.).
20. No doubt statement given before police during an
investigation under Section 161 are “previous statements”
under Section 145 of the Evidence Act and therefore can be
used to cross examine a witness. But this is only for a limited
purpose, to “contradict” such a witness. Even if the defence
is successful in contradicting a witness, it would not
always mean that the contradiction in her two statements
would result in totally discrediting this witness. It is here
that we feel that the learned judges of the High Court
have gone wrong.”(emphasis supplied)
98. Similarly, the inquest report is also not a substantive
piece of evidence and is hit by Section 162 of Cr.P.C. It was laid
down by the Hon’ble Supreme Court in Radha Mohan Singh v. State
of U.P., (2006) 2 SCC 450 : (2006) 1 SCC (Cri) 661: 2006 SCC OnLine SC
103 that the inquest proceeding is not a substantive piece of
evidence. It was observed at page 461:
13. The provision for holding of inquest is contained in
Section 174 CrPC and the heading of the section is Police to
enquire and report on suicide, etc. Sub-sections (1) and (2)
thereof read as under:
“174. Police to enquire and report on suicide, etc.–(1) When
the officer in charge of a police station or some other
police officer specially empowered by the State
Government in that behalf receives information that a
115
Neutral Citation No. ( 2025:HHC:2282-DB )person has committed suicide, or has been killed by
another or by an animal or by machinery or by an
accident, or has died under circumstances raising a
reasonable suspicion that some other person has
committed an offence, he shall immediately give
intimation thereof to the nearest Executive Magistrate
empowered to hold inquests, and, unless otherwise
directed by any rule prescribed by the State Government,
or by any general or special order of the District or Sub-
Divisional Magistrate, shall proceed to the place where
the body of such deceased person is, and there, in the
presence of two or more respectable inhabitants of the
neighbourhood, shall make an investigation, and draw up
a report of the apparent cause of death, describing such
wounds, fractures, bruises, and other marks of injury as
may be found on the body, and stating in what manner,
or by what weapon or instrument (if any), such marks
appear to have been inflicted.
(2) The report shall be signed by such police officer and
other persons, or by so many of them as concur therein,
and shall be forthwith forwarded to the District
Magistrate or the Sub-Divisional Magistrate.”
14. The language of the aforesaid statutory provision is plain
and simple and there is no ambiguity therein. An
investigation under Section 174 is limited in scope and is
confined to the ascertainment of the apparent cause of
death. It is concerned with discovering whether in a given
case the death was accidental, suicidal homicidal or caused
by an animal and in what manner or by what weapon or
instrument the injuries on the body appear to have been
inflicted. It is for this limited purpose that persons
acquainted with the facts of the case are summoned and
examined under Section 175. The details of the overt acts are
not necessary to be recorded in the inquest report. The
question regarding the details as to how the deceased was
assaulted who assaulted him or under what circumstances
he was assaulted or who are the witnesses of the assault is
foreign to the ambit and scope of proceedings under Section
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Neutral Citation No. ( 2025:HHC:2282-DB )
174. Neither in practice nor in law is it necessary for the
person holding the inquest to mention all these details.
15. In Pedda Narayana v. State of A.P. [(1975) 4 SCC 153: 1975
SCC (Cri) 427: AIR 1975 SC 1252] it was held that the
proceedings under Section 174 have a very limited scope. The
object of the proceedings is merely to ascertain whether a
person has died under suspicious circumstances or an
unnatural death and if so, what is the apparent cause of the
death. The question regarding the details as to how the
deceased was assaulted or who assaulted him or under what
circumstances he was assaulted is foreign to the ambit and
scope of the proceedings under Section 174. Neither in
practice nor in law, was it necessary for the police to
mention those details in the inquest report. It is, therefore,
not necessary to enter all the details of the overt acts in the
inquest report. Their omission is not sufficient to put the
prosecution out of Court. In Shakila Khader v. Nausheer
Cama [(1975) 4 SCC 122: 1975 SCC (Cri) 379: AIR 1975 SC 1324]
the contention raised that non-mention of a person’s name
in the inquest report would show that he was not an
eyewitness of the incident was repelled on the ground that
an inquest under Section 174 CrPC is concerned with
establishing the cause of death and only evidence necessary
to establish it need be brought out. The same view was taken
in Eqbal Baig v. State of A.P. [(1986) 2 SCC 476: 1986 SCC (Cri)
232: AIR 1987 SC 923] that the non-mention of the name of
an eyewitness in the inquest report could not be a ground to
reject his testimony. Similarly, the absence of the name of
the accused in the inquest report cannot lead to an inference
that he was not present at the time of the commission of the
offence as the inquest report is not the statement of a person
wherein all the names (the accused and also the
eyewitnesses) ought to have been mentioned. The view
taken in Pedda Narayana v. State of A.P. [(1975) 4 SCC 153: 1975
SCC (Cri) 427: AIR 1975 SC 1252] was approved by a three-
judge Bench in Khujji v. State of M.P. [(1991) 3 SCC 627: 1991
SCC (Cri) 916: AIR 1991 SC 1853] and it was held that the
testimony of an eyewitness could not be discarded on the
ground that their names did not figure in the inquest report
prepared at the earliest point of time. The nature and
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Neutral Citation No. ( 2025:HHC:2282-DB )
purpose of an inquest held under Section 174 CrPC was also
explained in Amar Singh v. Balwinder Singh [(2003) 2 SCC 518:
2003 SCC (Cri) 641]. In the said case the High Court had
observed that the fact that the details about the occurrence
were not mentioned in the inquest report showed that the
investigating officer was not sure of the facts when the
inquest report was prepared and the said feature of the case
carried weight in favour of the accused. After noticing the
language used in Section 174 CrPC and earlier decisions of
this Court it was ruled that the High Court was clearly in
error in observing as aforesaid or drawing any inference
against the prosecution. Thus, it is well settled by a catena of
decisions of this Court that the purpose of holding an
inquest is very limited viz. to ascertain as to whether a
person has committed suicide or has been killed by another
or by an animal or by machinery or by an accident or has
died under circumstances raising a reasonable suspicion
that some other person has committed an offence. There is
absolutely no requirement in law of mentioning the details
of the FIR, the names of the accused or the names of the
eyewitnesses or the gist of their statements, nor is it
required to be signed by any eyewitness. In Meharaj
Singh v. State of U.P. [(1994) 5 SCC 188: 1994 SCC (Cri) 1391]
the language used by the legislature in Section 174 CrPC was
not taken note of, nor the earlier decisions of this Court were
referred to and some sweeping observations have been made
which are not supported by the statutory provision. We are,
therefore, of the opinion that the observations made in
paras 11 and 12 of the reports do not represent the correct
statement of law and they are hereby overruled. The
challenge laid to the prosecution case by Shri Jain on the
basis of the alleged infirmity or omission in the inquest
report has, therefore, no substance and cannot be accepted.
99. Therefore, it is impermissible to look into the FIR,
statement and inquest report and to conclude that since there are
contradictions, therefore, the prosecution case is doubtful.
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Neutral Citation No. ( 2025:HHC:2282-DB )
100. It was submitted that the mobile phones of Babita Jain
and Ashwani Jain were not taken into possession, which is fatal to
the prosecution case. This submission will also not help the
defence. It was held in Karnel Singh vs. State 1995 (5) SCC 518 that
the prosecution case cannot be doubted due to the defective
investigation because Investigating Officer is not under the control
of the complainant and the complainant cannot be penalized for
the negligence of the Investigating Officer. It was held:
“4. We have very carefully scrutinized the evidence having
regard to the fact that (PW 6) the Investigation Officer had
not taken the care expected of him. He did not record the
statements of the two witnesses nor did he refer to the
attachment of the ‘Chaddi’ in his oral evidence. That was a
very vital piece of evidence to which little or no attention was
paid. If the seizure of that article was properly proved, the
article with semen stains would have lent strong
corroboration to the evidence of the prosecutrix. There is no
doubt that the investigation was casual and defective
. But despite these deficiencies both the Courts below have
recorded a conviction. The question is: are they right?
5. Notwithstanding our unhappiness regarding the nature of
the investigation, we have to consider whether the evidence
on record, even on strict scrutiny, establishes the guilt. In
cases of defective investigation, the Court has to be
circumspect in evaluating the evidence but it would not be
right to acquitting an accused person solely on account of
the defect; to do so would be tantamount to playing into the
hands of the Investigating Officer if the investigation is
designedly defective. Any Investigating Officer, in fairness to
the prosecutrix as well as the accused, would have recorded
the statements of the two witnesses and would have drawn
up a proper seizure memo in regard to the ‘Chaddi’. That is
119
Neutral Citation No. ( 2025:HHC:2282-DB )the reason why we have said that the investigation was
slipshod and defective.
6. We must admit that the defective investigation gave us
some anxious moments and we were at first blush inclined
to think that the accused was prejudiced. But on closer
scrutiny, we have reason to think that the loopholes in the
investigation were left to help the accused at the cost of the
poor prosecutrix, a labourer. To acquit solely on that ground
would be adding insult to injury.”
101. This position was reiterated in Sudha Ranukanya Vs.
State of A.P. 2017 (13) SCC 81 wherein it was held that the Court has
to see the prosecution case without taking into consideration the
defective investigation or lapses committed by the Investigating
Officer. This position was reiterated in Sachin Kumar Singhraha vs.
State of Madhya Pradesh 2019 (8) SCC 371, as under:
At this juncture, we would like to recall that it is well-settled
that criminal justice should not become a casualty because of
the minor mistakes committed by the Investigating Officer.
We may hasten to add here itself that if the Investigation
Officer suppresses the real incident by creating certain
records to make a new case altogether, the Court would
definitely strongly come against such action of the
Investigation Officer. There cannot be any dispute that the
benefit of the doubt arising out of major flaws in the
investigation would create suspicion in the mind of the Court
and consequently, such inefficient investigation would
accrue to the benefit of the accused. As observed by this
Court in the case of State of H.P. v. Lekh Raj, (2000) (1) SCC
247, a criminal trial cannot be equated with a mock scene
from a stunt film. Such trial is conducted to ascertain the
guilt or innocence of the accused arraigned and in arriving at
a conclusion about the truth, the courts are required to adopt
a rational approach and judge the evidence by its intrinsic
worth and the animus of the witnesses. The courts are not
120
Neutral Citation No. ( 2025:HHC:2282-DB )obliged to make efforts either to give latitude to the
prosecution or loosely construe the law in favour of the
accused. The traditional dogmatic hypertechnical approach
has to be replaced by a rational, realistic and genuine
approach to administering justice in a criminal trial.
102. This position was reiterated in Edakkandi Dineshan and
Ors. vs. State of Kerela (06.01.2025 – SC): MANU/SC/0028/2025
wherein it was observed:
22. A cumulative reading of the entire evidence on record
suggests that the investigation has not taken place in a
proper and disciplined manner. There are various areas
where a properly investigation could have strengthened its
case. In the case of Paras Yadav and Ors. v. State of Bihar
[ MANU/SC/0009/1999 : 1999:INSC:6: 1999 (2) SCC 126], the
Apex Court observed as under:
Para 8 -..the lapse on the part of the Investigating
Officer should not be taken in favour of the Accused,
may be that such lapse is committed designedly or
because of negligence. Hence, the prosecution
evidence is required to be examined de hors such
omissions to find out whether the said evidence is
reliable or not. For this purpose, it would be
worthwhile to quote the following observations of this
Court from the case of Ram Bihari Yadav v. State of
Bihar and Ors. MANU/SC/0302/1998 : 1998:INSC:191 :
J.T. (1998) 3 SC 290.
In such cases, the story of the prosecution will have to be
examined de hors such omissions and contaminated conduct
of the officials otherwise the mischief which was
deliberately done would be perpetuated and justice would be
denied to the complainant party and this would obviously
shake the confidence of the people not merely in the law
enforcing agency but also in the administration of justice.
Hence, the principle of law is crystal clear that on the
account of the defective investigation, the benefit will not
inure to the Accused persons on that ground alone. It is well
121
Neutral Citation No. ( 2025:HHC:2282-DB )within the domain of the courts to consider the rest of the
evidence which the prosecution has gathered such as
statements of the eyewitnesses, medical reports etc. It has
been a consistent stand of this Court that the Accused cannot
claim acquittal on the grounds of faulty investigation done
by the prosecuting agency. As the version of eyewitnesses in
specifically naming the Appellants have been consistent
throughout the trial, we find that there is enough
corroboration to drive home the guilt of the Accused persons
103. Thus, the prosecution case cannot be doubted due to the
defective investigation.
104. Further, the mobile phones would have corroborated
the ocular version but when the ocular version is found to be
worthy of credence, further corroboration from the mobile phone
was not required.
105. It was submitted that there is no entry regarding the
deposit of the laptop and recovery of ₹44,010/-. This submission
will also not help the accused. The accused Pradeep Gupta has filed
a revision claiming that the laptop and money were taken from
him. Thus their recovery is not in dispute and the failure to make
the entry is not fatal to the prosecution case.
106. The learned Trial Court had convicted the accused
Pradeep Gupta, Rajeev Kaushal, Sunil Kumar @ Charna, Anil
Kumar and Arun Kumar @ Manee of the commission of an offence
punishable under Section 27 of the Arms Act. Section 27 of the
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Neutral Citation No. ( 2025:HHC:2282-DB )
Arms Act punishes a person who uses any arm or ammunition in
contravention of Section 5 or Prohibited Arm in violation of Section
5. Section 5 of the Arms Act provides for the licence for
manufacture, and sale of arms and ammunition. Section 7 provides
for the acquisition, possession, manufacture or sale of prohibited
arms or prohibited ammunition. Only the accused Narinder Kumar
was charged with selling the firearm who has since been acquitted.
Other accused did not manufacture, sell, transfer, convert, repair,
test or prove the firearm. It was laid down by the Hon’ble Supreme
Court in Mahendra Singh v. State of W.B., (1974) 3 SCC 409: 1973 SCC
(Cri) 974: 1973 SCC OnLine SC 158 that mere possession of a firearm
is not sufficient to attract Section 27 of the Arms Act. It was
observed at page 412:
“9. On the evidence on the record, therefore, it is not possible
to hold that the existence of the arms in the almirah were
without the appellant’s knowledge or that his possession of the
arms was unconscious. His conviction under Section 25(1)(a) of
the Arms Act, 1959 is, therefore, fully justified. It is, however,
difficult to sustain his conviction under Section 27 of the Arms
Act. There is no evidence to support the offence under that
section and indeed the trial court has convicted him without
properly applying its mind to the ingredients of that offence.
The judgment of the trial court seems to suggest that mere
possession of the arms would also constitute an offence under
Section 27 of the Arms Act. This view is clearly not correct. But
since no separate sentence was imposed under Section 27, it is
unnecessary to say anything more about it than that the
conviction under Section 27 must be quashed.”
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Neutral Citation No. ( 2025:HHC:2282-DB )
107. It was laid down by the Hon’ble Supreme Court in
Gyasuddin Khan v. State of Bihar, (2003) 12 SCC 516: 2005 SCC (Cri)
630: 2003 SCC OnLine SC 1238 that section 27 of Arms Act can only
be attracted in the case of prohibited firearms. It was observed at
page 528:
22. The conviction under Section 27 of the Arms Act cannot,
however, be sustained. The gravamen of the second charge
framed against the appellant is that he used the stun gun and
SLR for the unlawful purpose of killing the three persons.
There is no evidence to the effect that the weapon used,
namely, sten gun, answers the description of “prohibited
arms” within the meaning of Section 2(1)(i) of the Arms Act.
The report of the Sergeant Major to whom the weapons were
sent was only to the effect that they were in working condition.
There was no discussion whatsoever either by the trial court or
by the High Court in regard to the offence under Section 27. We
are not inclined at this stage to probe further and address the
question whether the sten gun of Ram Pandey which was used
in the commission of the crime is a prohibited arm within the
meaning of Section 2(1)(i) though, in all likelihood, it may be. It
is not appropriate to convict the appellant under Section 27(3)
in which the extreme punishment of death is provided for.
Hence the conviction of the appellant under Section 27 of the
Arms Act, 1959 is hereby set aside.
108. In the present case, there is no evidence that the
firearm recovered by the police falls within the definition of a
prohibited firearm. Hence the provisions of Section 27 of the Arms
Act will not apply to the present case.
109. Thus, the learned Trial Court erred in convicting the
accused Pradeep Gupta, Rajeev Kaushal, Sunil Kumar, Anil and
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Neutral Citation No. ( 2025:HHC:2282-DB )
Arun Kumar of the commission of an offence punishable under
Section 27 of the Indian Arms Act.
110. It has been found above that there is no evidence of any
conspiracy against Pradeep Gupta and Anil Kumar @ Sethu.
Therefore, they were wrongly convicted with the aid of 120B of the
111. The learned Trial Court had sentenced the accused to
undergo rigorous imprisonment for life and to pay a fine of
₹25,000/- each for the commission of an offence punishable under
Section 302 and Section 120B of IPC. This is the minimum sentence
which can be imposed and no interference is required with it.
112. The learned Trial Court has sentenced accused Rajeev
Kaushal to undergo rigorous imprisonment for three years for the
commission of an offence punishable under Section 25 of the Arms
Act. The accused had used the firearm without any licence as
required under Section 3, hence he is to be held guilty of the
commission of an offence punishable under Section 25(1B) of the
Arms Act which can be punished for a term which shall not be less
than one year but which may extend to 3 years. Keeping in view the
fact that a firearm was used for murdering the deceased, the
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Neutral Citation No. ( 2025:HHC:2282-DB )
sentence of three years is not excessive and no interference is
required with it.
113. A revision has also been filed against the order passed
by the learned Trial Court releasing the data to Babita Jain. It is
undisputed that Pradeep Gupta was looking after the affairs of Jain
Oil mills; therefore, his laptop would have the necessary data
related to the sale, purchase and other transactions. This data was
not owned by him but was held by him as an employee of Jain Oil
Mills. Babita Jain is the wife of deceased Vinod Kumar Jain. She
required the data for filing the Income Tax Return pursuant to a
notice issued to her under Section 156 of the Income Tax Act. Thus,
the learned Trial Court had rightly ordered the release of data to
her.
114. Consequently, the appeal filed by Pradeep Gupta and
Anil Kumar @ Sethu is allowed and they are acquitted of the
charged offences. The appeals filed by Rajeev Kaushal, Sunil Kumar
@ Charna and Arun Kumar @ Manee are partly allowed and they
are acquitted of the commission of an offence punishable under
Section 27 of the Arms Act.
115. The revision filed by Pradeep Gupta is ordered to be
dismissed.
126
Neutral Citation No. ( 2025:HHC:2282-DB )
116. In view of the provisions of Section 437-A of the Code of
Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha
Sanhita, 2023), the appellants Pradeep Gupta and Anil Kumar @
Sethu are directed to furnish bail bonds in the sum of ₹25,000/-
each with one surety each in the like amount to the satisfaction of
the learned Trial Court/Registrar (Judicial) within four weeks,
which shall be effective for six months with stipulation that in the
event of Special Leave Petition being filed against this judgment, or
on grant of the leave, the appellants/accused on receipt of notice
thereof, shall appear before the Hon’ble Supreme Court.
117. 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.
(Vivek Singh Thakur)
Judge
(Rakesh Kainthla)
Judge
10th January, 2025
(saurav pathania)
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