Allahabad High Court
Rajendr Yadav vs State Of U.P. on 6 August, 2025
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:45590 AFR
Court No. - 10
Case :- CRIMINAL APPEAL No. - 74 of 2000
Appellant :- Rajendr Yadav
Respondent :- State of U.P.
Counsel for Appellant: J.N.Chaudhry, Bhaiya Lal Yadav,Rajendra Prasad
Counsel for Respondent :- Govt Advocate
Hon'ble Rajnish Kumar,J.
1. Heard Sri Rajendra Prasad,learned counsel for the appellant and learned Additional Government Advocate.
2. This Criminal Appeal under Section 374(2) of Criminal Procedure Code (hereinafter referred to as Cr.P.C.) has been filed against the judgment and order dated 27.1.2000 passed in Session Trial No.432 of 1994 (State versus Rajendra Yadav) by Ist Additional Sessions Judge, Unnao, by means of which the appellant Rajendra Yadav has been convicted and sentenced under Section 307 IPC to undergo 7 years rigorous imprisonment and Rs.5000/- as fine and in default of payment of fine to further undergo 1 year rigorous imprisonment.
3. Learned counsel for the appellant submitted that the appellant has falsely been implicated in the case and the trial court, without considering the evidence and material on record appropriately, has convicted the appellant and sentenced him as above. He further submitted that the presence of P.W.1 and P.W.2 at the place of incident itself is doubtful. He also submits that the injury sustained by the appellant cannot come in the facts and circumstances of the case because as per the evidence of the injured, while he was going towards North-West, the fire was made by pistol by the appellant from East and in such circumstances the said injury could not have come at 10’o clock to niple in chest. He further submitted that no source of light has been shown at the place of incident either in the F.I.R. or in the evidence and only a lantern was at some distance but the recovery memo of torch has been shown. He also submitted that the F.I.R. is anti-dated and there is contradiction in the story, as such, the same is concocted. He also submitted that the trial itself was faulty because statement of injured Shyam Lal was neither recorded under Section 161 Cr.P.C nor given to the appellant, therefore, he has been denied the opportunity to contradict to the injured about his previous statement. He also submitted that there is contradiction in the evidence of the investigating officer and the Constable. The scriber of F.I.R. has not been got examined. None of the independent eye witness has been got examined. The trail of blood has not been found on the spot. He relied on Gopal Krishna versus State; AIR 1964 All 481 and Shankar Lal and others versus State; AIR 1954 All 779.
4. On the basis of above, submission of learned counsel for the appellant is that the impugned judgment and order is not sustainable in the eyes of law and liable to be set aside and the appellant is liable to be acquitted.
5. Learned AGA vehemently opposed the submissions of learned counsel for the appellant. He submitted that the prosecution has proved it’s case beyond doubt in accordance with law by adducing the evidence. The testimony of injured witness cannot be discarded as the injured witness has proved the incident and the injury. The F.I.R. was lodged promptly. Thus, learned AGA submitted that the impugned judgment and order has rightly been passed in accordance with law, which does not suffer from any illegality or error. The appeal has been filed on misconceived and baseless grounds and it is liable to be dismissed. He relied on Balu Sudam Khalde and Others versus The State of Maharashtra; MANU/ SC/0328/2023[AIR 2023 SC 1736], Jage Ram versus State of Haryana; MANU/SC/0074/2015,[(2015) 11 SCC 366]; and The State of Madhya Pradesh versus Kanha; MANU/SC/0130/2019; [AIR 2019 SC 713].
6. I have considered the submissions of learned counsel for the parties and perused the records.
7. The prosecution story, in brief, is that on 13.2.1994 in the evening informant Nand Kumar alongwith his brother injured Shyam Lal had gone to the house of accused Rajendra Yadav on invitation for a feast. At about 7 P.M. Shyam Lal asked Rajendra to serve food without delay as he had invited so early. On this, the accused persons started abusing Shyam Lal. Shyam Lal then said that he would go back. On this accused Gyan Singh, Chhote Lal, Rajjan and Ram Shanker asked Rajendra to beat him, whereupon accused Rajendra Yadav, with intent to cause death, fired at Shyam Lal with a country made pistol, whereby Shyam Lal sustained hurt on his chest and fell down at some distance. The incident was witnessed by informant-Nand Kumar, Sukh Lal, Surjan and many others. Shyam Lal was taken to District Hospital, Unnao, wherefrom he was referred to Hallet Hospital, Kanpur. Nand Kumar got a written report of the incident scribed by Lakshmi Narain and lodged it at the police station Makhi on 14.02.1994 at 1:30 a.m., whereupon Case Crime No.44/94, under Sections 147, 148, 149, 307 and 504 IPC was registered and investigated. The injured was medically examined at District Hosptial, Unnao on 13.02.1994 at 9:45 p.m. The investigating office recorded statements of the witnesses and prepared a site plan. He seized blood stained earth and plain earth from the spot and prepared a memo. He also seized blood stained clothes of the injured and prepared a memo. Torch of Nand Kumar was inspected and given to the Supurdagi of Nand Kumar after preparing Fard Supardaginama. After completing the investigation, the local police submitted charge sheet against all the five accused persons.
8. The case was committed to the court of Sessions by means of the order dated 29.06.1994 by 5th Additional C.J.M., Unnao. The charge was framed against the appellant Rajendra Yadav under Sections 148 and 307 I.P.C., while the remaining four accuseds, namely, Ram Shankar, Gyan Sngh, Chhotey Lal and Rajjan were charged with Section 147 and 307 I.P.C. read with Section 149 IPC. The prosecution examined Nand Kumar as P.W.1, Shyam Lal as P.W.2, Constable Om Prakash as P.W.4, Dr. Rajeev Khare as P.W.4, S.I. Ramsingar Singh as P.W.5 and S.I. S.P. Singh as P.W.6 to prove it’s case. After evidence adduced by the prosecution, statement under Section 313 Cr.P.C. of the appellant alongwith other accuseds were recorded, in which they denied the allegations and stated that they have falsely been implicated due to enmity. The appellant Rajendra Yadav in addition thereto stated that the injured Shyam Lal used to come to his doors earlier also in a drunken state and hurl abuses, whereupon he used to ask him to get away. However, in defence, the appellant and the other accuseds did not adduce any evidence. Learned trial court, thereafter, after hearing learned counsel for the parties and perusing the evidence and material on record, acquitted Ram Shankar, Gyan Singh, Chhotey Lal and Rajjan under Sections 147 and 307 I.P.C. read with Section 149 I.P.C. and the appellant Rajendra Yadav under Section 148 I.P.C. However, the appellant Rajendra Yadav has been held guilty and has been convicted under Section 307 I.P.C. and sentenced to undergo the aforesaid punishment. Hence this criminal appeal has been filed.
9. P.W.1 Nand Kumar is the real brother of the injured and informant of the case. He proved written report Exhibit Ka-1. P.W.2 Shyam Lal is the injured. P.W.3 Constable Om Prakash has proved the chik F.I.R. Exhibit Ka-2 and a copy of the relevant entries made in the G.D. Exhibit Ka-3. P.W. 4 Rajeev Khare, who had examined the injuries of the injured Shyam Lal P.W.2 on 13.02.1994 at 9:45 p.m. at District Hospital Unnao, proved the injury report, Ext.Ka-4. He found gun-shot wound of entry 3 cm. x 2/5 c.m. x chest cavity deep on left side of chest, 4 cm. medial to left nipple at 10 O’ clock position. Margins of the wound were lacerated, echymosed and inverted, blackening and tattooing present in an area of 6 cm.x5.5 c.m. area of wound. The wound was sucking in nature. He kept the injuries under observation and advised for X’ ray of chest and opined the injury to have been caused by fire-arm weapon with fresh duration. He also stated that condition of injured was serious. P.W.5 S.I. Ram Singar Singh had started investigation of the case and prepared Fard Exhibit Ka-5 of blood stained and plain earth. He also prepared Fard Exhibit Ka-6 of blood stained clothes of Shyam Lal. He inspected torch of Nand Kumar and prepared Fard Supardaginama Exhibit Ka-7. He prepared site plan Exhibit Ka-8 and proved charge sheet Exhibit Ka-9 filed by S.I. S.P. Singh, who appeared as P.W.6. P.W.6 Surendra Pal Singh, Sub-Inspector, took over the investigation from S.I. Ram Singar Singh and recorded statements of accused Rajjan and Chhote Lal on 24.03.1994 and submitted charge sheet Exhibit Ka-9 against all the accuseds on 28.03.1994.
10. One of the grounds of challenge to the impugned order is that the statement of the injured Shyam Lal, who appeared as P.W.2, was not recorded under Section 161 Cr.P.C., therefore, the trial vitiated and the conviction of the appellant could not have been made. Thus before proceeding to consider the case on merit, this Court deems it appropriate, to consider this issue first because it will have impact on the consideration of the case and evidence on record.
11. Section 161 Cr.P.C. provides the examination of witness by police. Sub Section (1) provides that any police officer making an investigation under this Chapter, may examine orally any person supposed to be acquainted with the facts and circumstances of the case and such person shall be bound to answer truly all questions relating to such case under Sub Section (2). Under Sub Section (3) the police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the same. Section 161 Cr.P.C. is extracted here-in-below:-
“161-Examination of witnesses by police:- (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
(3)The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.
Provided that statement made under this sub-section may also be recorded by audio-video electronic means”
12. Section 162 Cr.P.C. provides that no statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement of record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. The proviso appended to Sub Section (1) of Section 162 provides 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, and when 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. Section 162 Cr.P.C. is extracted here-in-below:-
“162-Statements to police not to be signed : Use of statements in evidence.
(1)No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement of record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made
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 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.
(2)Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act.Explanation. – An omission to state a fact or circumstances in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.”
13. Section 145 of the Indian Evidence Act,1872 provides cross-examination of a witness regarding previous statements in writing. It provides that 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. Section 145 of the Indian Evidence Act, 1872 is extracted here-in-below:-
“145.Cross Examination as to previous statement 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.”
14. In view of above, the police officer investigating any offence may examine orally any person supposed to be acquainted with the facts and circumstances of the case and reduce into writing any statement made by him. The said statement cannot be used in any inquiry or trial in respect of any offence under investigation but the said statement may be used to contradict the said witness for the purpose of explaining any matter referred in his cross-examination by the witness. The accused may contradict the said witness in cross-examination in the manner provided under Section 145, in which his writing may also be got proved. Since the right has been given to the accused in the proviso to Section 162(1), therefore, the statement of such witness recorded under Section 161 Cr.P.C. would be material for his defence at the time of cross-examination. It is settled in law that every accused shall be afforded sufficient opportunity of defence during trial to prove his innocence, therefore, statute also provides to supply all the relevant material to the accused. The statements recorded under section 161 Cr.P..C. are also required to be furnished to the accused under Section 207(iii) Cr.P.C. Section 207(iii) Cr.P.C. is extracted hereinbelow:-
” 207 Supply to the accused of copy of police report and other documents:-
In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following;
(i)………..
(ii)………..
(iii) the statements recorded under Sub-Section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under Sub-Section (6) of section 173;
(iv)…………..
(v)…………..
Provided that the Magistrate may, after perusing any such pan of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused;
Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.”
15. A Coordinate Bench of this Court, in the case of Gopal Krishna versus State(supra), has observed that it is obvious that though the police is not bound to make a record of the statement of the witnesses under Section 161 as a matter of obligation, but it is their duty to do so, when the witness is a material witness for unfolding the prosecution story. It is also clear that a failure on their part to comply with the requirements of Section 161(3), though does not render the subsequent statement of the witness at the trial inadmissible, it does greatly impair the value of the evidence of that witness. Thus the Court opined that the statement of such witness looses much of it’s weight and the value of the testimony furnished by the witnesses produced at the trial has to be assessed. The relevant paragraph 19 to 23 is extracted here-in-below:-
“19. Section 161(3) runs as follows:
“The police officer may reduce into writing any statement made to him in the course of an examination under this section …………………”
20. Section 164(1) also provides that “Any Presidency Magistrate, any Magistrate of the First Class ………… may record any statement or confession made to him in the course of an investigation under this Chapter.
The word ‘may’ as used in S. 164 came up for comment in the case of Nazir Ahmad v. King Emperor, AIR 1936 PC 253 (2) and their Lordships were pleased to observe as follows:
“It can hardly be doubted that a magistrate would not be obliged to record any confession made to him if, for example, it were that of a self-accusing mad man or for any other reasons the magistrate thought it to be incredible or useless for the purposes of justice. Whether a magistrate records any confession is a matter of duty and discretion and not of obligation” ………… In the case of Purushottam Jethanand v. State of Kutch, AIR 1954 SC 700 it was held:
“There can be no doubt that the right which the accused had got of obtaining the copies of the statements made by witnesses during investigation is a very valuable right and that the wholesale refusal to grant the same will be a serious irregularity which would vitiate the entire trial as held by the Privy Council in Kottaya v. Emperor, AIR 1947 PC 67.”
21 In the case of Tilkeshwar Singh v. State of Bihar, (S) AIR 1956 SC 238 it was held that while the failure to comply with the requirements of Section 161(3) of the Cr PC might affect the weight to be attached to the evidence of the witnesses, it does not render it inadmissible.
22. On the basis of these authorities, it is obvious that though the police are not bound to make a record of the statement of the witnesses under S. 161 as a matter of obligation, it is their duty to do so when the witness is a material witness for unfolding the prosecution story. It is also clear that a failure on their part to comply with the requirements of S. 161(3), though does not render the subsequent statement of the witness at the trial inadmissible, it does greatly impair the value of the evidence of that witness. I am, therefore, of opinion that the statement of the Complaints Officer Bal Singh at the trial though admissible in evidence has lost much I of its weight on account of the fact that his statement was not recorded under Section 161 of the Cr PC.
23. In the light of above discussion of the legal questions raised in the case, the value of the testimony furnished by the witnesses produced at the trial has to be assessed.”
16. A Division Bench of this Court, in the case of Shankar Lal and others versus State(supra), has held that It is not safe to convict an accused person on the statements of witnesses, who have not been effectively and completely cross-examined because appellants were denied a valuable right conferred on them by law.
17. The Hon’ble Supreme Court, in the case of State of NCT of Delhi versus Ravi Kant Sharma and Others; (2007) 2 SCC 764, has held that the police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records. It is only when the investigating officer decides to record the statement of witnesses under Section 161 Cr.P.C. that he becomes obliged to make a true record of the statement which obviously will not include the interpretation of the investigating officer of the statements or the gists of statement.
18. The Hon’ble Supreme Court, in the case of Virender Singh versus State of Haryana; (2017) 11 SCC 126, has held that the statements made by the witness in the course of her investigation and recorded under Section 161 CrPC do not constitute evidence that can be relied upon by a court to convict an accused. But this is what the High Court seems to have done. It was open for the High Court to consider all other evidence, ocular or circumstantial, implicating the accused, if such evidence was available. But no reliance could have been placed on the statements recorded under Section 161 CrPC. The absence of any evidence and a suspicion in the mind of the Court cannot justify recourse to a consideration of what clearly is not evidence in law.
19. Adverting to the facts of the present case, admittedly the statement under Section 161 Cr.P.C. of the injured Shyam Lal; P.W.-2 was not recorded by the Investigating Officer S.I. S.P. Singh as he was admitted in hospital and no effort was made by him to examine the injured before submitting the charge sheet, which has been admitted by him, therefore, the trial court had directed to send a copy of the judgment to the Superintendent of Police, Unnao to take such action against him as he deems appropriate for gross negligence in not examining the injured Shyam Lal under Section 161 Cr.P.C. before submitting the charge sheet. Thus in view of the law as discussed above, the appellant could not be afforded opportunity to contradict his earlier statement in cross-examination, if he would have made any, immediately after the incident. However in the present case learned counsel for the appellant himself has relied on the evidence and cross-examination of P.W.-2; injured. Therefore, it is to be seen that irrespective of his evidence before the trial court, the evidence adduced by the other witnesses was sufficient or not to prove the charge against the appellant and as to whether his evidence, who was an injured witness and sustained injuries in the incident can be discarded totally on the aforesaid ground in the present case and if not, what would be weight of his evidence and how much of it can be relied.
20. In the present case, learned counsel for the appellant, though argued that in absence of statement under Section 161 Cr.P.C. of the injured Shyam Lal; P.W.-2, the proper opportunity could not be afforded to him and impugned judgment and order is liable to be set aside, but he has heavily relied on the evidence of P.W.-1 and P.W.2 to show that their presence on the spot of incident was doubtful and the injured P.W.-2 could not have sustained the injuries in chest in the said incident and source of light on the spot also could not be proved, therefore, the said witnesses could not have seen as to who had fired. Thus this court is of the view that the impugned judgment and order cannot be set-aside merely on the ground of non recording of statement of injured under Section 161 Cr.P.C. For this reason also the case is to be considered in the light of aforesaid observations.
21. P.W.1 Nand Kumar, who is real brother of the injured and the informant of the case, appeared as an eye witness. He stated in his evidence that he does not know brother-in-law and father-in-law of the appellant, whereas he had lodged F.I.R. against them. He stated in his cross-examination that he is neither neighbour nor of the caste of the appellant Rajendra. Jagdhar had invited and called him at 6:00 in the evening for the feast. At that time, there was light but at the time of incident, it was dark. He, on the one hand stated that they sat in front of the house of Ram Shankar instead of Rajendra and Ram Shankar had informed him and on the other he has stated that they were sitting on a cot inside the chaupal. Thus there is contradiction in it and the injured Shyam Lal i.e. P.W.-2 has stated that he sat in room in the forefront of house of Rajendra and further stated that it was like Chaupal, in which he sat. He, also stated that his brother was not sitting with him. Thus their presence at one and the same place is doubtful. P.W.-1 has also stated that where they were sitting, no lantern was burning. A chirag was burning in chaupal, where they were sitting and the place of incident was at a distance of 15 steps. My brother had not fallen there, rather, he had fell after 2-4 steps. He further stated that he has not stated in the report about burning of the lantern and he does not know any reason as to why burning of the lantern has not been mentioned in the report. He further stated that the lantern was under the thatch out side Chaupal. He also stated that his brother Shyam Lal used to take liquor and he was challaned by police. Thus burning of a chirag has been shown by P.W.1 in chaupal, where they were sitting in his cross examination, whereas in the examination-in-chief he stated that the lantern was burning but the place has not been disclosed and in cross-examination lantern has been shown under thatch, which was out of chaupal or room, where they were stated to were sitting and the injured Shyam Lal had suffered injury at a distance of about 15 steps. P.W.-2 has also stated about lantern in chaupal. But it has not been disclosed as to from which side and from what distance the appellant fired. Thus the source of light at the place of incident is doubtful. He has further stated that Jaghdar had come to call him and Shyam Lal and they accompanied him on 13.02.1994 at about quarter to 7, whereas in cross-examination he has stated the time 6. He also stated that Shyam Lal asked to the appellant Rajendra for making arrangement of food quickly and call whomsoever he wants to call because we have been called very early. The appellant replied that the food is still not ready and you always used to make nuisance in his work. Shyam Lal stated that give us food otherwise we will go and they stood up to go. At that time Chhotey Lal, Gyan Singh, Rajjan and Ram Shankar exhorted the appellant Rajendra to beat Shyam Lal, so that he may not go, on which, the appellant Rajendra fired on Shyam Lal from country made pistol, in which Shyam Lal got injuries. He ran but fell after going at some distance. Sukhlal, Surjan, Bheekha and others had seen the incident. On being controverted, the accuseds ran away. Thus though the names of at least three independent persons have been mentioned by P.W.1 but none of them have been produced in evidence.
22. Shyam Lal injured, who appeared as P.W.2, stated in examination-in-chief that the appellant Rajendra had fired him on chest with intention to kill him. However, in the cross examination he stated that when he suffered injury, the fire was shot on him from the side of East, when it hit him he was going towards the North-West. Thus if this evidence of P.W.2 injured is considered, firstly it is in contradiction to his evidence in examination-in-chief, secondly if the fire was made from the east side, while he was going towards the north-west, it could not have hit at chest in front of his body and it should have been on the back. Admittedly, the incident occurred at about 7:00 in the evening and it must have been night and dark at that time. If there is ocular and direct evidence in regard to the light given by the eye witness, then the presumption could not have been drawn by the trial court that if certain persons were invited for party, there must have been some arrangement of light, particularly when the statement of injured under Section 161 Cr.P.C. was not recorded, on account of which the appellant could not be afforded opportunity to contradict him. Thus the appellant is entitled for benefit of evidence of P.W.-2. Even otherwise the conviction may not be made solely on the evidence of P.W.-2 in such circumstance, but it can be considered otherwise and in the light of other evidence and benefit of his evidence, if any, may be in favour of the accused i.e. the appellant.
23. The Hon’ble Supreme Court, in the case of Balu Sudam Khalde and Ors. versus The State of Mahrashtra(supra), has enumerated the judicially evolved principles for appreciation of ocular evidence in a criminal case and as to how the evidence of an injured eye-witness is to be appreciated. In assessing the value of the evidence of the eyewitnesses, two principal considerations; firstly, whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. The relevant paragraphs 25, 26 and 27 are extracted here-in-below:-
APPRECIATION OF ORAL EVIDENCE
“25. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
“I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person’s mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.” [See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat 1983 Cri LJ 1096 : (AIR 1983 SC 753) Leela Ram v. State of Haryana AIR 1995 SC 3717 and Tahsildar Singh v. State of UP (AIR 1959 SC 1012)]
26. When the evidence of an injured eye-witness is to be appreciated, the under- noted legal principles enunciated by the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.
27. In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or put forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence.”
24. The Hon’ble Supreme Court, in the case of Jage Ram versus State of Haryana(supra), held that for the purpose of conviction under Section 307 IPC, prosecution has to establish (i) the intention to commit murder and (ii) the act done by the accused. The burden is on the prosecution to prove that accused had attempted to commit the murder. The relevant paragraphs 12 and 13 are extracted here-in-below:-
“12. For the purpose of conviction under Section 307 IPC, prosecution has to establish (i) the intention to commit murder and (ii) the act done by the accused. The burden is on the prosecution that accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given etc.
13. In the case of State of M.P. vs. Kashiram & Ors.[1], the scope of intention for attracting conviction under Section 307 IPC was elaborated and it was held as under:-
“13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.”
25. The Hon’ble Supreme Court, in the case of The State of Madhya Pradesh versus Kanha (Supra), has relied the aforesaid case of Jage Ram versus State of Haryana and found that the ocular evidence is cogent and corroborated by the medical evidence.
26. Considering the case in hand in view of the facts and circumstances of the case as discussed above and the law, it is apparent that the presence of the eye witnesses i.e. P.W.-1 and P.W.-2 at the place of incident is doubtful as there is contradiction in their testimony about the place of their sitting, source of light on the spot and the most important thing is that the injuries sustained by the injured P.W.-2; Shyam Lal could not have sustained on the chest, when the fire would have been shot by the appellant from the east side, when the injured was going towards north-west as per evidence of P.W.-2, which could not be controverted by the other side. This court also finds that there is contradiction in the evidence of P.W.-1 and P.W.-2 in regard to going of the injured Shyam Lal to Kanpur for selling Cabbage (Bandha) as one has said that he had gone a day prior to the date of incident and came back at about 6.00 in the evening on the date of incident, while the other said that he had gone and came back on the same day. No trail of blood stain found from the place of hit of fire upto the place, where the injured fell down after running and a presumption has been drawn by the trial court on the basis of clothes on the body of the injured that the blood may not have fell down without any evidence in this regard, whereas as per the recovery memo plain and blood stained mud was collected by the Investigating Officer from the spot, but the same has not been got matched with the blood of the injured, in as much as, the learned trial court has failed to consider the same. The reason for false implication has been stated by the appellant is that the injured was a drunkard and he used to come before his house and abuse and P.W.-1 has admitted in his evidence that the injured Shyam Lal used to take liquor and he was challaned also by the police. Thus, this court is of the view that the prosecution has failed to prove its case beyond doubt and in the facts and circumstances of the case the appellant is entitled for benefit of doubt, but the learned trial court failed to consider it, therefore, the impugned judgment and order is not sustainable in the eyes of law and liable to be set-aside and the appellant is liable to be acquitted giving the benefit of doubt.
27. The appeal is, accordingly, allowed. The impugned judgment and order dated dated 27.1.2000 passed in Session Trial No.432 of 1994; State versus Rajendra Yadav by the Ist Additional Sessions Judge, Unnao is hereby set aside. The appellant is acquitted giving benefit of doubt.
28. Let a copy of this judgment as well as the lower court record be transmitted to the concerned Trial Court forthwith.
(Rajnish Kumar,J.)
Order Date:06.08.2025
Akanksha Sri/Banswar