No Acts & Articles mentioned in this case
APHC010030012025
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI
(Special Original Jurisdiction)
[3396]
FRIDAY, THE SEVENTH DAY OF MARCH
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE DR. JUSTICE VENKATA JYOTHIRMAI PRATAPA
CRIMINAL APPEAL No. 41 OF 2025
Between:
RUTHALA RAMANA ALIAS RAMANA MASTER, S/O PARADESI, RETD.
TEACHER, 65 YEARS. K. VELAMA, BURUGUPALEM VILLAGE,
MAKAVARAPALEM MANDAL, (ADDED AS CO -ACCUSED IN THE
ABOVE CASE AS PER THE ORDER OF THE HONOURABLE COURT
VIDE DT. 11-09-2024)
...APPELLANT
AND
1. THE STATE OF ANDHRA PRADESH, REP, BY ITS PUBLIC
PROSECUTOR, HIGH COURT OF ANDHRA PRADESH, HIGH
COURT BUILDINGS AT AMARAVATHI.
2. OBBALAREDDY CHINNABBAI, S/O NOOKARAJU 59 YEARS K
VELAMA, BURUGUPALLEM VILLAGE, MAKAVARAPALEM MANDAL,
PRESENTLY ANAKAPALLI DISTRICT.
3. YADAGIRI MALIAYA, S/O NAGULU 76 YEARS, SC BURUGUPALLEM
VILLAGE, MAKAVARAPALEM MANDAL, PRESENTLY ANAKAPALLI
DISTRICT.
4. MARRA PENTAMMA, W/O VEERANNA 63 YEARS SC
BURUGUPALLEM VILLAGE, MAKAVARAPALEM MANDAL,
PRESENTLY ANAKAPALLI DISTRICT.
...RESPONDENT(S):
Counsel for the Appellant:
1. P A K KISHORE
Counsel for the Respondent(S):
1. PUBLIC PROSECUTOR
The Court made the following:
2
JUDGMENT:
Instant Appeal has been preferred by the Accused No.9, (newly added
accused) challenging the validity and correctness of the Order dated
11.09.2024, in S.C.No.10 of 2015 on the file of the Court of Special Sessions
Judge for SC & ST Cases-cum-XI Additional District and Sessions Judge,
Visakahapatnam, by invoking the power under Section 319 of the Code of
Criminal Procedure, 1973 (in short „Cr.P.C.‟).
2. For the sake of convenience, the Appellant herein will be referred as
„Proposed Accused‟.
Facts leading to filing of the present Appeal:
3. Initially a case in Crime No.79 of 2008 on the file of Makaravapalem
Police Station for the offences under Sections 147, 148, 302, 307 and 324
read with 149 IPC and Section 3(1) (x) of SCs & STs (PoA) Act was registered
against the proposed Accused along with 18 named accused and 10
unnamed accused. However, after due investigation, the Police filed report on
the file of the Court of Judicial Magistrate of First Class, Narsipatnam by
deleting the names of the proposed Accused and Accused Nos.10 to 19 due
to lack of evidence against them. Learned Magistrate had taken cognizance of
the alleged offences against Accused Nos.1 to 8 in PRC No.23 of 2009 and
subsequently the case was committed to the Trial Court and numbered as
S.C.No.10 of 2015. After conclusion of trial and after hearing both sides, the
matter was posted for judgment on 11.09.2024. On the said date, the
3
impugned order was passed by adding the name of the proposed Accused by
exercising the power under Section 319 Cr.P.C.
4. Heard Sri P.A.K.Kishore, learned counsel for the Appellant and
Ms.K.Priyanka Lakshmi, learned Assistant Public Prosecutor for Respondent
No.1/State. Notice was served on the de facto complainant through Police as
reported by learned Assistant Public Prosecutor.
Arguments advanced at the Bar:
On behalf of Proposed Accused
5. Learned counsel for the proposed Accused would submit that the
evidence of P.Ws.4, 7 and 9 does not disclose the involvement of the
proposed Accused in the alleged crime. Learned counsel would further submit
that, P.Ws.7 and 9 are not even eye-witnesses to the occurrence of the
alleged incident. It is submitted that Ex.P.8 does not disclose specific
overtacts attributed against the proposed Accused. Learned counsel further
submits that invoking of power under Section 319 Cr.P.C arose after the cross
examination of P.Ws.4, 7, 9, 18 and 19 and when the matter was posted for
judgment. Without considering the cross examination of the said witnesses,
Learned Trial Judge passed the impugned order. Learned counsel would
finally pray for setting aside the impugned order.
On behalf of the Respondents / State:
6. Per contra, learned Assistant Public Prosecutor would submit that the
prosecution elicited from the evidence of P.W.4 about the involvement of the
4
proposed Accused in the alleged crime. It is submitted that there are specific
allegations against the proposed Accused in the commission of the alleged
offences. As such, Learned Trial Judge has rightly ordered to add the name of
the proposed Accused in the present case. Learned Assistant Public
Prosecutor would finally submit that there are no grounds to interfere in the
Appeal.
7. Having heard the submissions, the points that would emerge for
determination are:
1) Whether the evidence of P.Ws.4, 7 and 9 coupled with Ex.P8 is
suffice to proceed against the proposed accused by invoking the
power under Section 319 Cr.P.C.?
2) If so, whether the impugned Order is sustainable in law?
Point Nos.(1) and (2):
8. For ready reference, the relevant part of the impugned order is
extracted hereunder:
―Judgment not dictated and case suo-moto reopened as the
evidence of P.Ws.4, 7 and 9 available in record shows the
involvement of R.Ramana @ Ramana Master in the alleged attack
on the deceased as well as on the injured on the alleged date of
offence and the statement of defacto complainant i.e., Ex.P.8 also
shows his involvement in the alleged offence. Hence, invoking the
power conferred under Sec.319 Cr.P.C this Court is of the opinion
that such person also could be tried together with A1 to A8. As such
prosecution is directed to take necessary steps against said
R.Ramana to add him as accused No.9 and ordered to issue
summons to him upon adding.‖
9. A cursory look at the impugned order would show that the same was
passed by relying on Ex.P.8 and the evidence of P.Ws.4, 7 and 9. Ex.P.8 is
5
the information submitted to the Police by the de facto complainant / P.W.1 at
the earliest point of time after the incident. It is interesting to note that, Ex.P.8
was not marked through P.W.1 in his evidence, since the witness failed to
identify his statement when the same was confronted to him. Then, Ex.P.8
was marked through P.W.16, who registered the crime. The value attached to
the statement of the defacto complainant presented to the Police in writing to
set the criminal law into motion, is for the sake of contradiction to the defence
and for the benefit of corroboration to the Prosecution, when the maker of
such statement is examined as a witness before the Court. Ex.P.8 is not a
substantive piece of evidence.
10. Before delving into the points in issue, it is apposite to understand what
is „Evidence‟, under Section 3 of the Indian Evidence Act, 1872 (for short
„Evidence Act‟). For ready reference Section 3 of the Evidence Act, is
extracted hereunder:
―3. Evidence. ––―Evidence‖ means and includes ––
(1) all statements which the Court permits or requires to be made
before it by witnesses, in relation to matters of fact under inquiry;
such statements are called oral evidence;
(2) [all documents including electronic records produced for the
inspection of the Court;] such documents are called documentary
evidence.‖
11. The language employed in Section 3 would go to show that, the
„Evidence‟ is the testimony of a witness whether oral or documentary
presented before the Court on oath, in order to prove or disprove any facts in
6
issue regarding that particular case. Needless to say that, the statement of a
witness before the Court, on oath, is a substantive piece of evidence. It is apt
to mention that, soon after the registration of a criminal case by the Police, the
Police during the course of investigation may orally examine and record the
statements of any persons, who are acquainted with the facts of the case,
which means by the time the witness depose before the Court, there is every
possibility to the defence to have the previous statements of such witness.
Now, it is beneficial to extract Section 161(1) & (3) of Cr.P.C.
―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) ……………..
(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 ………….
Provided ………….‖
12. The use of the statement recorded under Section 161(3) Cr.P.C in a
criminal trial is well described under Section 162(1) Cr.P.C., which reads as
under:
―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
7
such statement or 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 circumstance
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. It is worthy to note that the statement made to the Police Officer during
the course of investigation is hit by Section 162(1) Cr.P.C., proviso, which is
used only to contradict a witness under Section 145 of the Evidence Act.
However, exceptions are Sections 32(1) and 27 of the Evidence Act. The one
and only purpose of recording the statement of a witness under Section 161
Cr.P.C is for the benefit of the Accused to contradict such witness in the
manner provided by Section 145 of the Evidence Act. Sometimes, it may be
used by the Prosecution to contradict its own witness by obtaining the
permission of the Court as per Section 154 of the Evidence Act. It is significant
8
to note that the evidence of prosecution witness, who turned unfriendly to the
prosecution, still be believed with regard to the testimony on other aspects.
The statements recorded under Section 161(3) Cr.P.C. cannot be used for
corroboration of the evidence of a witness in Court. Such statements also
cannot be used to contradict the statement of another witness. The restricted
use of such a statement is to contradict the maker of it. Sub Section (1) of
Section 162 of Cr.P.C. enables the Court to look into that part of statement
which is used by the Accused to contradict such witness in the manner
provided by Section 145 of the Evidence Act. The only condition to use such
part of the Statement, which is turned to be a contradiction to the effect that it
must be duly proved.
Contradiction:
14. Now, it is necessary to understand what is a „Contradiction‟, which is
mentioned under Section 145 of the Evidence Act as follows:
―145. Cross-examination as to previous statements in
writing. –– A witness may be crossexamined 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.‖
15. In general sense, contradiction means, same person making two
different statements at different stages. It is not uncommon to observe that
the prosecution witness whose statement has been recorded under Section
161(1), Section 164, and Section 154 of Cr.P.C. states before the Court
9
regarding the factual aspects which are relevant and material to the facts in
issue, which were not there in their previous statements, then it is a case of
omission. In case, the witness stated before the Court which is quite contra to
his statement before the Police, then it is a direct case of contradiction. In
case, the omission which is proved in the examination of a Police Officer,
before the Court and it is a material one, which is capable of creating a doubt
to believe the veracity of the witness, it is an omission amounting to
contradiction. Obviously, the witness has to be contradicted in the manner
provided under Section 145 of the Indian Evidence Act. It has two parts. The
first part is relating to the cross-examination of a witness regarding his
previous statements made in writing without confronting such writings to the
witness. Whereas, the second part of the Section is to contradict a witness by
confronting that part of the previous statement in case the witness deposes
before the Court diametrically opposite to his version before the Police during
the course of investigation. Such being the case, the witness‟ attention must
be drawn to specific parts of his prior statement, which is being used to
contradict him.
16. The definition of „contradiction‟ is not available either under Cr.P.C. or
under the Evidence Act like-wise under the new enactments, BNSS,2023 and
BSA, 2023. The second limb of Section 145 explains the contradiction is
relating to previous statement of a witness in writing. The very purpose of
contradicting a witness before the Court in cross-examination with reference
10
to their previous statements in writing or reduced into writing, is to discredit the
testimony of the witness.The credibility of a witness depends upon several
factors. One of such factors is, consistency with the previous statement made
to the Police at the earliest point of time. Needless to say that, every
contradiction is not capable of destructing the substantive piece of evidence in
its entirety.
17. In a celebrated judgment in Tahsildar Singh and Another v. The State
Of Uttar Pradesh and another
1
, the Hon‟ble Supreme Court had
authentically explained regarding „contradiction‟. Paragraph -19 reads as
under:
―19. If the previous statement of the witness before the Police
Officer during the stage of investigation and the later statement of
the witness in his evidence before the Court are so inconsistent or
irreconcilable with each other that both of them cannot co-exist,
then it may be said that one statement contradicts the other.‖
In the judgment referred to supra, it is further observed that, if one
statement is proved, obviously, the other must be false and vice-versa. If both
statements cannot stand together, then it can be called as „contradiction‟.
18. The Constitutional Bench in Tahsildar Singh’s case (supra) was
dealing with Section 162 of the old Code, 1898. It is pertinent to mention here
that, Section 162 of the old Code did not contain the explanation which is
attached to Section 162(1) of the Code of Criminal Procedure, 1973. It is apt
1
. AIR 1959 SC 1012
11
to recollect that Section 181 of the Bharatiya Nagarik Suraksha Sanhita
(BNSS) 2023 is the replica of Section 162 of Cr.P.C.
i) It was further observed in Paragraph-13 of the above judgment that,
the contradiction under Section 145 of the Evidence Act is between what the
witness asserted in the witness box and what he stated before the Police and
not between what he said he told the Police Officer and what he actually told
the Police Officer. As the explanation to Section 162 (1) of Cr.P.C. was not
available in the old Code, it was observed that the contradiction under the old
Code is the setting up of one statement against another but not the setting up
of a statement against nothing at all. In that view, it was clarified that the
omission could be inferred in the previous statement of the witness by way of
necessary implication, which is clearly demonstrated in the illustrations.
ii) The language employed in Section 162 (1) Proviso would indicate the
following:
i) in a case instituted on a police report, during the course of
investigation, the Police Officer may orally examine any person who is
acquainted with the facts and circumstances of the case and reduce the same
into writing.
ii) Before the Court, such person, whose statement was recorded by the
Police, may be examined as a prosecution witness to establish their case.
12
iii) In case, prosecution witness before the Court on oath deposes a
different version, which cannot co-exist with the previous statement before the
police, then the defence may elicit contradiction in the cross-examination.
iv) When a witness deposes before the Court on oath ignoring material
facts by taking u-turn to what he stated previously before the Police, then the
prosecution with the permission of the Court under Section 154 of the
Evidence Act, put such questions to the witness like in cross-examination and
elicit the contradictions.
v) In case a witness stated in the chief examination in line with his
previous statement, but in the cross-examination giving go-bye to what is
stated in chief examination gave a completely a different version, then the
prosecution with the permission of the Court may re-examine the witness to
clarify the ambiguity in the cross-examination to give an opportunity to the
witness to explain, to protect the credibility of such witness.
19. In the light of the aforementioned discussion, it is quite clear that the
contradiction referred under Section 145 of the Evidence Act is regarding the
statement of the witness before the Police during the course of investigation
and the evidence of the very same witness before the Court. This was
categorically held by the Hon‟ble Supreme Court in Chaudhari Ramjibhai
Narasangbhai v. State Of Gujarat And Ors
2
, wherein it was observed that the
witness before the Court cannot be contradicted in the cross-examination
2
. (2004) 1 SCC 184
13
under Section 145 of the Indian Evidence Act with the aid of the Statement of
any other witness. The contradiction as envisaged under Section 145 of the
Indian Evidence Act is regarding the previous statement of the maker, i.e.,
between the evidence of the witness before the Court and the Statement of
the very same witness before the Police during the course of investigation.
20. Hence, the contradiction can never be between the previous statement
of one witness before the Police during the course of investigation with the
evidence of another witness before the Court on oath. Which means the
evidence of one witness before the Court cannot be contradicted under
Section 145 of the Evidence Act with the previous statement of some other
person.
Omission - when amounts to contradiction
21. As per the words used in the explanation to Section 162 Cr.P.C., the
omission should always be in the statement of a witness before the Police but
not a statement of a witness before the Court on oath. When a witness
deposes before the Court by ignoring the material facts stated before the
Police, then the prosecution put such material to the said witness with the
permission of the Court, if denied, it has to be proved through the Police
Officer, who recorded the previous statement under Section 161(3) of Cr.P.C.
Such contradiction has to be marked in the manner provided under Section
145 of the Evidence Act. The omission of a witness in the evidence before the
Court cannot be falling under the explanation to Section 162 Cr.P.C.
14
i) If any material improvement is there in the evidence of a witness
before the Court, compared to the statement of witness before the Police, it is
a case of omission under the explanation to Section 162 Cr.P.C. When a
witness deposes a new fact before the Court which was not there in the
previous statement, the Court cannot reject it straight away without examining
the explanation of the witness for doing so.
ii) Obviously, an omission to refer any fact before the Police does not
automatically become a contradiction, but it may turn into a contradiction if
such fact appears to be an important one and supposed to be stated before
the Police. If it is proved before the Court, it may affect the credibility of a
witness depending on the facts and circumstances of a particular case.
iii) It is worthy to remember that Falsus in uno, falsus in omnibus which
means false in one aspect false in all aspects is not applicable to Indian Law.
When the evidence is placed before the Court by both sides, it is for the Court
to separate the grain from the chaff. In this context, the explanation attached
to Section 162 Cr.P.C. further fortifies that, whether any omission amounts to
a contradiction in a particular context, shall be a question of fact.
iv) In the light of the same, not every omission or discrepancy, though
may amount to a material contradiction, destruct the credibility of the witness
touching all the aspects, still the discretion is left to the Court to believe such a
witness regarding the other facts on record depending on the whole material
placed before the Court.
15
How to elicit, mark, and prove the contradiction:
22. The manner in which Contradiction has to be recorded and proved is
categorically explained by the Hon‟ble Supreme Court at Paragraph-18 in
V.K.Mishra and another vs. State of Uttarakhand
3
and it reads as under:
―18. Under Section 145 of the Evidence Act when it is intended to
contradict the witness by his previous statement reduced into writing,
the attention of such witness must be called to those parts of it which
are to be used for the purpose of contradicting him, before the writing
can be used. While recording the deposition of a witness, it becomes
the duty of the trial court to ensure that the part of the police
statement with which it is intended to contradict the witness is
brought to the notice of the witness in his cross-examination. The
attention of witness is drawn to that part and this must reflect in his
cross-examination by reproducing it. If the witness admits the part
intended to contradict him, it stands proved and there is no need to
further proof of contradiction and it will be read while appreciating the
evidence. If he denies having made that part of the statement, his
attention must be drawn to that statement and must be mentioned in
the deposition. By this process the contradiction is merely brought on
record, but it is yet to be proved. Thereafter when investigating officer
is examined in the court, his attention should be drawn to the
passage marked for the purpose of contradiction, it will then be
proved in the deposition of the investigating officer who again by
referring to the police statement will depose about the witness having
made that statement. The process again involves referring to the
police statement and culling out that part with which the maker of the
statement was intended to be contradicted. If the witness was not
confronted with that part of the statement with which the defence
wanted to contradict him, then the court cannot suo moto make use
of statements to police not proved in compliance with Section 145 of
Evidence Act that is, by drawing attention to the parts intended for
contradiction.‖
(Emphasis applied)
23. It is apt to mention that the Hon‟ble Supreme Court in Criminal Trials
Guidelines regarding Inadequecies and Deficiencies v. State of Andhra
3
(2015) 9 SCC 588
16
Pradesh
4
directed the State Governments, High Courts and Union of India to
implement the rules within six months. The Government of Andhra Pradesh
issued a gazette notification by incorporating Rule-58(B) by amending the
Criminal Rules of Practice and Circular Orders, 1990 with reference to Section
161 and 164 of Cr.P.C.
24. Rule-58-B. References to statements under Sections 180 and 183 of
the Bharatiya Nagarik Suraksha Sanhita, 2023 -
(i) During cross-examination, the relevant portion of the statements
recorded under Section 180 of BNSS 2023 used for contradicting
the respective witness shall be extracted. If it is not possible to
extract the relevant part as aforesaid, the Presiding Officer, in his
discretion, shall indicate specifically the opening and closing
words of such relevant portion, while recording the deposition,
through distinct marking.
(ii) In such cases, where the relevant portion is not extracted, the
portions only shall be distinctly marked as prosecution or defence
exhibit as the case may be, so that other inadmissible portions of
the evidence are not part of the record.
(iii) In cases, where the relevant portion is not extracted, the
admissible portion shall be distinctly marked as prosecution or
4
. 2021 (10) SCC 598
17
defence exhibit as the case may be.
(iv) The aforesaid rule applicable to recording of the statements
under Section 180 shall mutatis mutandis apply to statements
recorded under Section 183 of the BNSS, 2023 whenever such
portions of prior statements of living persons are used for
contradiction/corroboration.
(v) Omnibus marking of the entire statement under Sections 180 and
183 of the BNSS, 2023 shall not be done.
25. The observations made in V.K.Mishra’s case (supra) is vivid regarding
the procedure need to be followed by the defence as well as the prosecution
to contradict a witness in the manner provided under Section 145 of Evidence
Act by confronting that part of the Police Statement which the cross-examining
party intended to contradict such witness. If the witness admits such
contradiction, no further proof is required. It must reflect in the evidence and
Court can read such evidence while appreciating the same at appropriate
time. If the witness denies, it must be mentioned in the deposition by merely
bringing such part on record (subject to proof) mark the same, but still it
requires proof in the evidence of the Investigating Officer. The Investigating
Officer, who recorded such previous statement referring to such part of the
statement in the case diary, has to confirm about the witness having made
that statement. If such part of the statement is not confronted to the witness to
18
contradict, the Court cannot suo motu make use of such statement since it is
not proved in compliance with Section 145 of the Evidence Act.
Obviously, the Court has to follow Rule 58-B referred to supra while
marking such contradiction in the evidence of prosecution witnesses.
Interestingly, lifting of the bar under Section 162 of Cr.P.C. regarding
the statements recorded under Section 161(3) Cr.P.C. available only to the
prosecution witnesses in a police case whose statements are recorded during
the course of investigation. And no such exceptions are available to defence
witness or Court witness whose statements are recorded by the Police during
the course of investigation.
26. It is profitable to demonstrate the concept of „omission‟ –
„contradiction‟ – „omission amounting to contradiction‟ – „omission by
necessary implication‟ with live examples in decided cases of the
Hon‟ble Supreme Court in the tabular form infra.
Tahsildar Singh And Another v. The State of Uttar Pradesh (supra)
Statement before
the Police Officer
during the course
of investigation
Evidence of the
Witness before the
Court.
Confirmation of the
Police Officer in his
evidence before
the Court
Finding of the
Court
1 2 3 4
I saw A Stabbing B
at a particular point
in time.
(A only)
He saw A & C
stabbing B at the
same point of time.
The discrepancy is
proved.
Omission by
necessary
implication.
19
A dark man
stabbed B
(He is not a fair
man)
A fair man stabbed
B.
The discrepancy is
proved
Positive statement
- negative aspect;
Negative
statement-positive
aspect.
A, after stabbing B,
ran away by a
northern lane.
(A cannot ran away
towards northern
and southern lane
at a time)
Immediately after
the stabbing, A ran
away towards the
southern lane.
The discrepancy is
proved
Inherent
repugnancy.
Both cannot co-
exist.
D stabbed C B Stabbed C Contradiction Clear case of
contradiction.
When he entered
the room, he saw A
shooting B dead
with a gun.
He entered the
room he saw, C
stabbing B dead.
Both statements
cannot stand
together.
Dahyabhai Chhaganbhai Thakker vs.State Of Gujarat
5
Statement before
the Police Officer
during the course
of investigation
Evidence of the
Witness before the
Court.
Confirmation of the
Police Officer in his
evidence before
the Court
Finding of the Court
1 2 3 4
Attributed clear
intention on the
part of the accused
committing the
murder of his wife.
Accused was
insane.
Denied in the
cross-examination
that he did not
state before the
Police that accused
was insane at the
time of the incident.
Police Officer
confirmed that
witness did not
state before him
that the accused
was insane at the
time of incident.
Omission
amounting to
contradiction.
5
AIR 1964 SC 1563
20
Meera v. State Of Rajasthan
6
Statement before
the Police Officer
during the course
of investigation
Evidence of the
Witness before the
Court.
Confirmation of the
Police Officer in his
evidence before
the Court
Finding of the Court
1 2 3 4
Witness did not
refer about any
harassment by the
mother-in-law of
the deceased.
The statement was
recorded after one
year of such
occurrence.
The deceased was
tortured by her
mother-in-law.
Denied in the
cross-examination
that he did not refer
the above
statement before
the Police.
Police Officer
confirms that the
witness did not tell
anything about the
harassment of the
mother-in-law
towards the
deceased.
Omission
amounting to
contradiction.
Shree Gopal and another v. Subhash and others
7
Statement before
the Police Officer
during the course
of investigation
Evidence of the
Witness before the
Court.
Confirmation of the
Police Officer in his
evidence before
the Court
Finding of the
Court
1 2 3 4
Witness stated to
the police about
exhortation on the
part of the
accused.
Witness did not
choose to refer
before the Court
that, there had
been exhortation
on the part of the
accused.
In cross -
examination,
denied that he
made such
statement before
the Police.
Police Officer
confirms that the
witness stated
before him about
exhortation on the
part of the
accused.
Note: omitted to
state before the
Court not falling
under explanation
to Section 162 of
Cr.P.C.
Direct contradiction
elicited by the
prosecution
6
(2004) 11 SCC 231
7
(2004) 13 SCC 174
21
State of Punjab v. Parveen Kumar
8
Statement before
the Police Officer
during the course
of investigation
Evidence of the
Witness before the
Court.
Confirmation of the
Police Officer in his
evidence before
the Court
Finding of the
Court
1 2 3 4
Witness did not
refer any dying
declaration of the
deceased made to
him.
Witness deposed
that deceased had
made a dying
declaration.
In cross -
examination by the
defence, witness
denied that he did
not tell before the
police about the
dying declaration.
Witness did not
refer dying
declaration made
to him by the
deceased.
Material omission
amounting to
contradiction
State Of U.P vs Banne @ Baijnath & Ors
9
Statement before
the Police Officer
during the course
of investigation
Evidence of the
Witness before the
Court.
Confirmation of the
Police Officer in his
evidence before
the Court
Finding of the Court
1 2 3 4
No reference about
the weapon that
accused used
lathis in the
incident.
Accused used
lathis.
In cross -
examination denied
that he did not tell
before the Police
about the weapon
(lathis) are used.
Police Officer
admits that the
witness did not
refer the lathis in
his statement.
Omission
amounting to
contradiction.
8
(2005) 9 SCC 769
9
(2009) 4 SCC 271
22
State Of Rajasthan v. Rajendra Singh
10
Statement before
the Police Officer
during the course
of investigation
Evidence of the
Witness before the
Court.
Confirmation of the
Police Officer in his
evidence before
the Court
Finding of the
Court
1 2 3 4
P.W.8:
On hearing the
sound of gun-shot
had gone to the
spot.
He had gone to the
spot on hearing the
sound of gun-shot
and tried to snatch
away the gun from
the accused.
Denied in the
cross-examination
that he did not refer
the above
statement before
the Police.
Police Officer
confirms that the
witness did not
refer that he tried to
snatch away the
gun from the
accused.
Note: introducing a
new case on the
material facts
which are
supposed to be
stated before the
Police.
Omission
amounting to
contradiction
P.W.9:
Witness did not
refer that he
sustained injuries
in the process to
save Harveer.
He tried to save
Harveer and he
sustained injuries.
In cross -
examination denied
that he did not
make such
statement before
the Police.
Police Officer
confirms that the
witness did not
state before him
that he sustained
injuries while trying
to save
Mr.Harveer.
Omission
amounting to
contradiction
10
(2009) 11 SCC 106
23
Birbal Nath v. The State Of Rajasthan
11
Statement before
the Police Officer
during the course
of investigation
Evidence of the
Witness before the
Court.
Confirmation of the
Police Officer in his
evidence before
the Court
Finding of the Court
1 2 3 4
P.W.2 is the wife of
the deceased
working in the
fields along with
him at the time of
the incident. She
sustained grievous
injuries.
She stated before
the Police that
while they were
working on their
field, accused was
working on his
adjacent field and
he had some
altercation with the
deceased
regarding their
boundary in which
heated arguments
were exchanged
between the two.
Accused (Jethnath)
then raised an
alarm which
resulted his sons
and relatives
coming to the spot
armed with
weapons.
Witness omitted to
state before the
Court the fact of
accused (Jethnath)
working in the field
and altercation
between the
deceased and
Jethnath.
Witness in cross-
examination denied
that she stated
before the Police
about the
altercation between
the deceased and
Jethnath while
working in the field
regarding the
boundary.
Police Officer
admitted that the
witness stated
before him about
the altercation
between the
deceased and
Jethnath regarding
the boundary.
The contradiction
which is elicited in
the evidence of
P.W.2 is not suffice
to discredit the
witness. The
reason being she is
injured and
sustained grievous
injuries.
The witness may
be discredited only
to the extent of
beginning of the
incident, but not
entire evidence.
Note: The Court
converted the case
as Exception 4 to
Section 300 i.e.,
culpable homicide
not amounting to
murder, but not
discarded the entire
evidence of this
witness.
11
2023 INSC 957
24
12
(2024) SCC OnLine SC 760
Alauddin and others V. State of Assam and another
12
Statement before
the Police Officer
during the course
of investigation
Evidence of the
Witness before the
Court.
Confirmation of
the Police Officer
in his evidence
before the Court
Finding of the
Court
1 2 3 4
P.W.3:
Appellant No.2
has taken his
father on a motor
bike at 4.00 p.m.
His father went to
a meeting with
Appellant No.2, as
his father was an
influential leader
of Congress.
At about 6.30 p.m.
Appellant No.2
brought his father.
He followed them
on his bicycle. He
heard a hew and
cry from a
distance of about
30 meters away
from L.P.School.
After going ahead,
he saw, appellant
No.3 running
towards the road
with a sharp
weapon in his
hand. He saw him
in his flash of the
head light of the
motor cycle.
He saw appellant
No.2 leaving by
motorcycle and
then he found the
body of his father.
He denied every
suggestion put by
the defence about
the omissions in
his previous
statement.
P.W.11:
He confirmed the
following
omissions:
P.W.3 went to
attend the
meeting. At about
6.30 p.m. accused
brought his father
back from the
meeting in a motor
cycle. He also
followed them
after ten minutes.
He was returning
in his bicycle, he
saw in the light of
the bike, that
accused was
running with a
weapon in his
hand.
He saw appellant
No.3 running away
with the weapon in
his hand in the
flash of the
motorcycle‟s head
light.
Very significant
omission which
amounts to
contradiction.
25
P.W.4:
He saw hulla near
L.P.School while
he was returning
from the market.
He referred the
names of
Rusthum, Mamrus
and Tahiruddin
before the Court.
He saw 8 to 10
persons including
appellant Nos.2
and 4 assaulting
the deceased by
using a dao. He
and P.W.9 raised
a hew and cry
after which the
accused left.
In cross -
examination by
the defence, he
denied that he did
not tell the Police
about 8 to 10
people were
assaulting the
deceased by
surrounding him.
P.W.11:
Witness did not
state before him
that he along with
ainul were going in
a motorcycle.
He saw accused
Alaluddin,
nurislam, nurul,
Khadir and Zilani
assaulted
Sahauddin by
means of Dao.
He did not
mention the
names of Abdul
Khadir Zilani
before him.
Material omissions
which affect the
reliability of the
witness. Thus, it is
very doubtful
whether P.W.4
had seen the
assault on the
deceased.
P.W.5:
The decea sed
requested him to
carry his bag as
he was going to
campaign for
election.
At About 8.00
P.M. He Saw The
Deceased,
Appellant Nos.2,3
and 4, conversing
on the road near
Bhojkhowa Girls
School.
In cross
examination by
the defence, he
denied that he had
not told the police
that at 8.00 p.m.
while he was
going back to his
house, he saw the
accused
conversing with
the deceased.
P.W.11:
P.W.5 did not
state before him
that at about 8.00
pm. While he was
coming from
Bhojkhowa Girls
School, he saw
the deceased
conversing with
the accused.
The material part
of the testimony of
P.W.5 is a
significant
omission which
amounts to
contradiction.
P.W.7:
He did not state
that he noticed
At 8.10 pm., on
the fateful day,
P.W.11:
He admitted that
P.W.7 did not tell
26
27. In the background of the legal principles and the discussion referred to
supra, this Court would like to examine the evidentiary value attached to the
evidence of P.Ws.4, 7 and 9 regarding adding of the proposed Accused in a
case of murder at the stage of judgment.
A.2 was raiding on
the pillion of the
deceased‟s motor
cycle at 8.10 pm.
on the fateful day.
while he was
ready to go to his
house to bring
food, he noticed
A.2 was riding on
the pillion of the
deceased‟s
motorcycle.
In cross -
examination by
the defence, he
denied that he did
not tell before the
Police the above
statement.
before him that he
noticed A.2 was
raiding on the
pillion of the
deceased‟s motor
cycle at 8.10 pm.
on the fateful day.
Omission
P.W.9
He did not state
before the Police
that he had seen
Appellant No.2
and Abdul Khadir
leaving the place
where the
deceased was
lying at 8.00 p.m.
At 8.00 pm. on the
day of the
incident, he had
seen Appellant
No.2 and Abdul
Khadir Zilani
(Acquitted
Accused) leaving
the place where
the deceased was
lying.
In cross
examination by
the defence
denied that they
did not tell the
police the above
statement.
P.W.11:
He admitted that
the witness did not
tell before him that
he had seen
Appellant No.2
and Abdul Khadir
leaving the place
where t he
deceased was
lying at about 8.00
pm.
Omission
27
28. For ready reference, the evidence of P.W.4 is extracted hereunder.
―Examination in Chief by A.P.P:
I am resident of Burugupalem Village, Makavarapalem Mandal,
Anakapalli District. I do cultivation. I know P.W.1 and P.W.2 and
other witnesses as local residence. I know all the accused who are
related to me. The above incident took place at our house about 15
years back. I can say the date and time of the incident. By then, I
was cooking inside. After hearing some galata, I came out and found
Pothu Raju and Raja Babu laid on the road and found injuries on
their body. The people who bet them left from that place. I found
huge gathering. The police examined me.
At this stage Spl.P.P sought permission to put the questions
which are ordinary put in the cross examination. Perused
sec.161(3) Cr.RC., statement of witness. Permitted.
Cross examination by A.P.P:
I stated before police in my statement that A1 to A3 and one Ruthala
Ramana assaulted P.W.1 to P.W.3 and Pothu Raju with sticks and
rods on 02.12.2008 at 08.00 P.M. when they were seated on the pile
of the house of Allu Appalanaidu.
Cross examination by Sri P.A.K.Kishore, Advocate for the
accused:
I did not witness as to which of the accused that Pothu Raju and
P.W.1 to P.W.3 at the time of the alleged incident. I did not state
before police as in Ex.D4 contradiction (marked subject to proof)
stating that by the time of the incident, the entire men folk of that
village were not p[resent on that road. It is not true to suggest that
recording my statement by the police is not correct.
Re-examination: NIL‖
29. Coming to the facts of the present case, P.W.4 has stated before the
Police referring to the names of x x x and the proposed Accused. But, before
the Court, in her chief examination, she did not choose to name any Accused.
Then, the Prosecution elicited in her evidence that part of statement and the
witness admitted the same. Doubtlessly this contradiction does not require
any other proof as the witness admitted the same. What is the evidentiary
28
value of such statement, is the crucial question. Contradiction elicited in a
testimony of a witness primarily be used to impeach the credibility of such
witness. Truthfulness is the only test to decide the reliability of the witness.
30. In the present case, the testimony of P.W.4 has to be appreciated,
keeping in mind the other evidence available on record. It is apt to recollect
the judgment of the Hon‟ble Apex Court in Brijendra Singh & Others vs.
State of Rajasthan
13
, wherein, in a similar circumstances it was held that the
trial Court though is competent to exercise the power under Section 319
Cr.P.C on the basis of the statements recorded before the Court in
examination-in-chief, where plethora of evidence was collected by the
Investigating Officer during investigation which suggested otherwise, the trial
court was at least duty bound to look into the same while forming prima facie
opinion and to see as to whether „much stronger evidence than mere
possibility of their complicity‟ has come on record.
31. In this context, it is worthy to note that, the evidence of P.W.18 is very
much available before the trial Court. P.W.18 testified in his cross examination
that, during the course of investigation, he recorded the statements of Ruthala
Varaha Dora, Ruthala Raghu Satyanarayana Raju and Kamireddy Satya Rao
on 06.12.2008. He admitted that, his investigation relating to the statements
of the above persons, discloses that one Ruthala Ramana, who is arrayed as
A3 (Proposed Accused) in Ex.P8 and Ex.P9 along with the above three
13
2017 (7) SCC 706
29
persons and four others participated in a dinner at Sector-IX, Visakhapatnam
Steel Plant on 01.12.2008 from 07.00 P.M., to 10.00 P.M which was arranged
by one Teacher Satya Geetha for the marriage function. He further deposed
that his investigation reveals that A3 (Proposed Accused) was not present at
the time of the alleged incident as referred by P.W.1 to P.W.4. The name of
the proposed Accused is referred in Ex.P.8. In fact, Ex.P.8 would show that
the case is lodged against 19 named Accused and 10 unnamed persons. After
due investigation, the Investigating Officer filed a report against eight Accused
by deleting the names of the remaining Accused due to lack of evidence. The
evidence of P.W.18 further would show that the proposed Accused is a 65
years old retired teacher and is a brother of the Accused Nos.1 and 2. It is
pertinent to mention that P.W.18 filed a report against eight persons despite
the statement of the defacto complainant refers to 29 persons. P.W.18 has
stated the reason for deleting the name of the proposed Accused. Admittedly,
no protest petition has been filed by the defacto complainant against the
report filed by the Police placing their objections.
The purpose and end use of the Contradiction:
32. For quick reference Section 155(3) of the Indian Evidence Act is
extracted as under:
―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) ……………..
30
(2) ……………..
(3) By proof of former statements inconsistent with any part of his
evidence which is liable to be contradicted.‖
33. As discussed supra, the statement of a witness during the course of
investigation recorded by the Police, is not a substantive piece of evidence.
Its use is only to contradict a witness. The use of the contradiction is to
establish that the witness is speaking lie. It means, only to impeach the
creditworthiness of the witness under Section 155 of the Evidence Act. In the
context of the present case, nothing is on record to establish that P.W.4
actually witnessed the presence of the proposed Accused in the incident and
at the earliest point to time stated before the Police, but deposing falsehood
before the Court. The reason being, the evidence of P.W.18 goes to the root
of the case for eliminating the presence of the proposed Accused at the time
of the alleged incident. In this regard, it is profitable to refer to the judgment of
the Hon‟ble Apex Court in a Criminal Appeal directly addressing the very
same issue in Anees vs. The State of Government of NCT
14
, wherein, at
Para 69 it was held as under:
―69. Over a period of time, we have noticed, while hearing criminal
appeals, that there is practically no effective and meaningful
crossexamination by the Public Prosecutor of a hostile witness. All
that the Public Prosecutor would do is to confront the hostile
witness with his/her police statement recorded under Section 161 of
the Cr.P.C. and contradict him/her with the same. The only thing
that the Public Prosecutor would do is to bring the contradictions on
record and thereafter prove such contradictions through the
evidence of the Investigating Officer. This is not sufficient. The
14
2024 INSC 368
31
object of the cross-examination is to impeach the accuracy,
credibility and general value of the evidence given in-chief; to sift
the facts already stated by the witness; to detect and expose the
discrepancy or to elicit the suppressed facts which will support the
case of the cross-examining party. What we are trying to convey
is that it is the duty of the Public Prosecutor to cross-examine a
hostile witness in detail and try to elucidate the truth & also
establish that the witness is speaking lie and has deliberately
resiled from his police statement recorded under Section 161 of the
Cr.P.C. A good, seasoned and experienced Public Prosecutor will
not only bring the contradictions on record, but will also cross-
examine the hostile witness at length to establish that he or she had
actually witnessed the incident as narrated in his/her police
statement.‖
(Emphasis applied)
34. In case of eliciting and proving such contradictions in the evidence of a
witness, they can be used to impeach the credit of a witness in the light of
Section 155 (3) of the Indian Evidence Act. It is not uncommon to see the
natural variations in the evidence of a witness before the Court when
compared to their earlier statements before the Police. Perhaps, the reason
being, every human being is unique in their perception to understand, recollect
and reproduce the thing happened before him in a similar way. The very same
witness cannot repeat the statement in a similar fashion in the same
chronology without any minor deviation for the second time except the said
witness is a well tutored witness. For example, ten persons witnessed a
murder happened on the road right in front of their houses, the sum and
substance of the statements of such witnesses may be the same, but the
words of such witnesses, the manner in which they narrate the incident may
not be one and the same. Sometimes, we may come across to witnesses,
32
who add something which is not there in their previous statement. While
narrating the incident, when such addings in the evidence are not material and
capable to destruct the very substantive evidence, and they are to be
considered as minor inconsistencies, which are not sufficient to discredit the
testimony of such witness despite, such omissions.
35. In Birbalnath’s case (supra), the Hon‟ble Supreme Court while dealing
with a Criminal Appeal preferred by the Complainant as well as the State
regarding the acquittal of the Accused, for the offences under Section 302 and
307 IPC, categorically observed that, every contradiction of a witness proved
before the Court is not suffice to discredit the entire testimony by doubting the
credit worthiness of such a witness. Unless and until the previous statement of
the witness is capable of discrediting the witness, it has no great relevance. It
is further observed that the witness in the said case being injured and the wife
of the deceased, the contradiction elicited regarding the altercation preceded
by the incident is not sufficient to completely discredit her testimony. It is
further observed that, limited benefit can be given to the Accused to the extent
of the possibility of the incident not being premeditated but not to discard her
entire testimony.
36. In Rammi Alias Rameshwar vs State Of Madhya P radesh
15
the
Hon‟ble Supreme Court at paragraph-24 observed that Courts should bear in
15
1999 (8) SCC 649
33
mind that it is only when discrepancies in the evidence of a witness are so
incompatible with the credibility of his version that the Court is justified in
jettisoning his evidence. But too serious view to be adopted on mere
variations falling in the narration of an incident either as between evidence of
two witnesses or as between two statements of the same witness is an
unrealistic approach for judicious scrutiny.
37. In general practice before the Trail Courts, the defence may make out
several contradictions during the lengthy cross examination of a prosecution
witness from the previous statements of such witnesses before the Police.
Simply because the inconsistencies found in the evidence of such witness,
they cannot impair the credibility of the witness. The language employed in
Section 155 (3) of Cr.P.C. is vivid to the effect that the Court has discretion to
decide the inconsistent statements, which are contradicted in the evidence of
a witness, would affect the veracity of the said witness. The purpose of cross-
examination of a witness in the light of Sections 145 and 155 of the Indian
Evidence Act is only to establish before the Court that the witness is not
reliable and goes on changing the versions, by bringing into the attention of
the Court with the aid of contradictions.
38. Coming to the evidence of P.Ws.7 and 9, according to P.W.18, they are
not the eye-witnesses to the occurrence. P.Ws.7 and 9 flatly denied the
suggestion made by the defence that, they did not state before the Police that
they have watched the incident. But, coming to the evidence of P.W.18, on
34
perusal of the case diary, P.W.18 deposed that no eye-witness was present at
the time of inquest. Such being the case, it is an omission on the part of these
witnesses in not revealing such a material fact before the Investigating Officer.
The purpose of contradiction is to establish before the Court that, here is a
witness, who is not ready to speak the truth and goes on changing his
versions. The contradiction can destruct the very substantive evidence
deposed by the witness before the Court regarding such fact. In view of the
same, no Court could have recorded a satisfaction, which is required, as held
by the Constitutional Bench of the Hon‟ble Supreme Court in Hardeep Singh
vs. State of Punjab and others
16
, even to believe the prima facie case of
involvement of the proposed Accused in the alleged incident.
39. Further, in the instant case, the learned Public Prosecutor elicited from
P.W.4 to the extent that this witness stated before the Police referring the
name of the proposed Accused. The record shows no further cross-
examination to establish that the witness had actually witnessed the presence
of the proposed Accused in the incident as stated before the Police Officer
during the course of investigation while recording the statement under Section
161 Cr.P.C. Such being the case, though this contradiction does not require
any further proof that the witness stated before the Police referring the name
of the proposed Accused, failed to establish that the witness has deliberately
resiled from the statement given to the Police having watched the incident.
16
(2014) 3 SCC 92
35
From the evidence of P.W.4 regarding the alleged involvement of the
proposed Accused, in the statement before the Police, she named four
Accused including the name of the proposed Accused. Before the Court, in
chief-examination, P.W.4 did not refer to the names of any Accused. Her
evidence is that the Accused left the place and she found the injured with
injuries after coming out from the house. Then, after showing hostility, she
admits that, she stated before the Police in her statement that, four Accused
including the proposed Accused involved in the commission of the crime. It is
pertinent to note that, this is not a positive statement that, this witness
witnessed the involvement of the proposed Accused in the alleged crime. In
the very next sentence in the cross examination by the defence, this witness
positively stated that she did not witness as to which of the Accused beat the
injured at the time of the incident. It is vivid that this witness gave different
statements regarding the proposed Accused. There is no reexamination by
the prosecution to explain the reason referring to the cross examination by the
defence.
40. It is relevant to extract Section 319 Cr.P.C., which reads as under:
"Section 319. Power to proceed against other persons appearing
to be guilty of offence.
(1) Where, in the course of any inquiry into, or trial of, an offence, it
appears from the evidence that any person not being the accused
has committed any offence for which such person could be tried
together with the accused, the Court may proceed against such
person for the offence which he appears to have committed.‖
36
Stage to invoke Section 319 Cr.P.C and procedure to be followed in a
criminal case:
41. As can be seen from the language employed in Section 319 Cr.P.C.,
the Court can proceed against a person whose name is not mentioned in the
FIR or the person whose name is deleted in the final report, even before
framing charges till the time of pronouncement of judgment. At this stage, it is
beneficial to refer to the judgment in Sukhpal Singh Khaira vs. The State of
Punjab
17
, wherein, the Constitutional Bench of the Hon‟ble Apex Court gave
certain guidelines to be followed by the competent Court when the Court
intends to invoke the power under Section 319 Cr.P.C., which are as follows:
―(i) If the competent court finds evidence or if application under
Section 319 of CrPC is filed regarding involvement of any other
person in committing the offence based on evidence recorded
at any stage in the trial before passing of the order on acquittal
or sentence, it shall pause the trial at that stage.
(ii) The Court shall thereupon first decide the need or otherwise
to summon the additional accused and pass orders thereon.
(iii) If the decision of the court is to exercise the power under
Section 319 of CrPC and summon the accused, such
summoning order shall be passed before proceeding further
with the trial in the main case.
(iv) If the summoning order of additional accused is passed,
depending on the stage at which it is passed, the Court shall
also apply its mind to the fact as to whether such summoned
accused is to be tried along with the other accused or
separately.
(v) If the decision is for joint trial, the fresh trial shall be
commenced only after securing the presence of the summoned
accused.
17
2022 LiveLaw (SC) 1009
37
(vi) If the decision is that the summoned accused can be tried
separately, on such order being made, there will be no
impediment for the Court to continue and conclude the trial
against the accused who were being proceeded with.
(vii) If the proceeding paused as in (i) above is in a case where
the accused who were tried are to be acquitted and the decision
is that the summoned accused can be tried afresh separately,
there will be no impediment to pass the judgment of acquittal in
the main case.
(viii) If the power is not invoked or exercised in the main trial till
its conclusion and if there is a split-up (bifurcated) case, the
power under Section 319 of CrPC can be invoked or exercised
only if there is evidence to that effect, pointing to the
involvement of the additional accused to be summoned in the
split up (bifurcated) trial.
(ix) If, after arguments are heard and the case is reserved for
judgment the occasion arises for the Court to invoke and
exercise the power under Section 319 of CrPC, the appropriate
course for the court is to set it down for re-hearing.
(x) On setting it down for re-hearing, the above laid down
procedure to decide about summoning; holding of joint trial or
otherwise shall be decided and proceeded with accordingly.
(xi) Even in such a case, at that stage, if the decision is to
summon additional accused and hold a joint trial the trial shall
be conducted afresh and de novo proceedings be held.
(xii) If, in that circumstance, the decision is to hold a separate
trial in case of the summoned accused as indicated earlier;
(a) The main case may be decided by pronouncing the
conviction and sentence and then proceed afresh against
summoned accused.
(b) In the case of acquittal the order shall be passed to that
effect in the main case and then proceed afresh against
summoned accused.‖
38
Standard of satisfaction required to invoke Section 319 Cr.P.C:
42. On this aspect, the Hon‟ble Apex Court while following the decision in
Hardeep Singh’s case (supra), observed in Labhuji Amratji Thakor and
others Vs. State of Gujraat
18
and categorically held that the mere fact that
the Court has power under Section 319 Cr.P.C. to proceed against any person
who is not named in the F.I.R. or in the Charge Sheet, does not mean that
whenever in a statement recorded before the Court, name of any person is
taken, the Court has to mechanically issue process under Section 319 Cr.P.C.
The Court has to consider substance of the evidence, which has come before
it and as laid down by the Constitution Bench in Hardeep Singh's case (supra)
has to apply the test, i.e., more than prima facie case as exercised at the time
of framing of charge, but short of satisfaction to an extent that the evidence, if
goes unrebutted, would lead to conviction.
43. The Hon‟ble Apex Court, while dealing with a case of similar nature, in
Brijendra Singh’s case (supra), categorically held as follows:
―This record was before the trial court. Notwithstanding the
same, the trial court went by the deposition of complainant and
some other persons in their examination-in-chief, with no other
material to support their so- called verbal/ocular version. Thus,
the ‗evidence‘ recorded during trial was nothing more than the
statements which was already there under Section 161 Cr.P.C.
recorded at the time of investigation of the case. No doubt, the
trial court would be competent to exercise its power even on the
basis of such statements recorded before it in examination-in-
chief. However, in a case like the present where plethora of
evidence was collected by the IO during investigation which
suggested otherwise, the trial court was at least duty bound to
18
(2019) 12 SCC 644
39
look into the same while forming prima facie opinion and to see
as to whether ‗much stronger evidence than mere possibility of
their (i.e. appellants) complicity has come on record. There is
no satisfaction of this nature. Even if we presume that the trial
court was not apprised of the same at the time when it passed
the order (as the appellants were not on the scene at that time),
what is more troubling is that even when this material on record
was specifically brought to the notice of the High Court in the
Revision Petition filed by the appellants, the High Court too
blissfully ignored the said material. Except reproducing the
discussion contained in the order of the trial court and
expressing agreement therewith, nothing more has been done.
Such orders cannot stand judicial scrutiny.‖
Evidence of a witness includes chief, cross and re-examination:
44. In this context, the Hon‟ble Apex Court in Hetram @ Babli vs. State of
Rajasthan & another
19
held that, when cross examination is available on
record, ignoring the cross examination of witnesses while deciding an
application under Section 319 Cr.P.C., by summoning an Accused cannot be
exercised. When the omissions which are material and which amount to
contradiction are elicited, no Court could have recorded the satisfaction which
is contemplated by Section 319 of Cr.P.C. It is further observed that it is
impossible to record a finding that even a prima facie case of involvement of
the Appellant has been made out.
The evidence relied upon by the learned Trial Judge is referred infra in
a tabular form.
19
2024 INSC 903
40
Statement before
the Police Officer
during the course
of investigation
Evidence of the
Witness before the
Court.
Confirmation of
the Police Officer
in his evidence
before the Court
Finding of the
Court
1 2 3 4
P.W.4
Proposed
Accused
Assaulted P.Ws.1
to 3 and Pothu
Raju with sticks
and rods on
2.12.2008 at 8.00
p.m. when they
were seated on
the pial of the
house of Allu
Appala Naidu.
I can say the date
and time of the
incident. By then, I
was cooking
inside. After
hearing some
galata, I came out
and found
Pothuraju and
Rajababu laid on
the road and found
injuries on their
body. The people
who beat them left
from that place.I
found huge
gathering.
Witness in cross-
examination
admitted about her
statement before
the Police as: “I
stated before the
Police in my
statement that ……
”
Note:Contradiction
is proved as the
witness admitted
the previous
statement.
Cross examination
by defence:
I did not witness as
to which of the
accused beat
P.W.16 stated that
P.W.4 stated
before him as in
Ex.D4.
P.W.18 stated in
cross-examination
that during the
course of
investigation, I
recorded the
statements of
Ruthala Varaha
Dora, Ruthala
Raghu
Satyanarayana
Raju and
Kamireddy Satya
Rao on
06.12.2008. It is
true that part of
my investigation
relating to the
statements of the
above 3 persons,
it discloses that
one Ruthala
Ramana who is
arrayed as A.3 in
Ex.P8 and Ex.P9
along with the
above 3 persons
and 4 others
participated in a
dinner at Sector-
IX,Visakhapatnam
Steel Plant on
Learned Trial
Judge opined
that the evidence
of P.Ws.4,7 and
9 shows the
involvement of
the proposed
accused in the
alleged incident
and Ex.P8 also
shows his
involvement in
the alleged
offence.
41
Pothuraju and
P.Ws.1 to 3 at the
time of the alleged
incident. I did not
state before the
Police as in Ex.D4
stating that at the
time of the
incident, the entire
men folk of that
village were not
present on that
road.
02.12.2008 from
07.00 p.m. to
10.00 p.m. that
was arranged by
ne Teacher Satya
Geetha for the
marriage function.
That part of my
investigation that
A.3 was not
present at the time
of the alleged
incident as
referred by P.W.1
to P.W.4.
P.W.7:
----
I found x, one
Ramana Master
(proposed
accused), xxx and
x beating all the
above people with
sticks and rods. I
went there while
beating them.
Ex.D5 is marked to
the effect that the
above injured were
beaten by some
others along with
the referred people
and also about
coming to know the
same with regard
to the above
incident as well as
the death of the
deceased at KGH
on 05.12.2008 and
also about going to
the KGH on
06.12.2008 and
found her husband
died.
P.W.18 admitted
that P.W.7 stated
before him as in
Ex.D5.
Contradiction is
proved.
P.W.18 further
stated that no
persons claimed
to be eyewitness
were present at
the time of
inquest. P.Ws.7 to
9 are not eye
witnesses to the
occurrence of the
alleged incident.
-do-
42
P.W.9
----
At that time I found
all the accused
along with Ramana
Master (proposed
accused)
proceeding
towards the house
of Allu Appala
Naidu by arming
with sticks and
rods.
We also followed
them at some
distance.
By the time, I
reached there,
deceased was
already beaten.
I also found
P.Ws.1 to 3 laid
on the road with
injuries. After that
incident, all the
accused along with
proposed accused
left towards SC
colony.
Witness in the
cross-examination
denied that he did
not state before the
Police that
accused along with
proposed accused
proceeding
towards the house
of Appala Naidu by
arming with sticks
and rods.
P.W.18 admitted
that P.W.9 stated
before him as in
Ex.D6.
Contradiction is
proved.
P.W.18 further
stated that P.W.9
is not an eye
witness.
-do-
43
Witness also
denied the
contradiction to the
effect that he came
to know about
shifting the injured
to KGH in an
ambulance after
the incident and
also the demise of
Pothuraju on
05.12.2008.
45. Keeping in mind the evidence referred to supra, a cursory look at the
impugned Order would show that the contradictions, which are recorded in the
evidence of the above witnesses regarding the involvement of A.3 (proposed
accused), are ignored. The standard of satisfaction as guided in Hardeep
Singh’s (supra) case is not made out from the evidence of P.Ws.4, 7 and 9.
46. In the instant case, when the trial has already completed and when the
matter was posted for judgment, the degree of satisfaction required to be
recorded by the trial Court while summoning any other person as an additional
Accused, should be more than the standards required at the stage of framing
of charges as held in Hardeep Singh‘s case (supra). In other words, the
evidence on record must strongly suggest more than a "prima facie" case
against such a person and his involvement in commission of the crime. As
discussed above, in the instant case, though there is no material to prima
facie show the involvement of the Appellant/proposed Accused in the
commission of the alleged offence, the learned trial Judge, by invoking the
44
power under Section 319 Cr.P.C., added the name of the proposed Accused
and ordered to issue summons to him. In such circumstances, this Court is of
the view that the impugned order suffers from serious infirmity and it does not
stand for legal scrutiny and the same is liable to be set aside.
47. In the result, the Criminal Appeal is allowed setting aside the order
dated 11.09.2024 passed in S.C.No.10 of 2015 on the file of the Court of
Special Sessions Judge for SC & ST Cases-cum-XI Additional District and
Sessions Judge, Visakhapatnam and the consequent order dated 20.12.2024
of issuance of summons to the Appellant. However, it is made clear that
consideration by this Court regarding the evidence of the witnesses discussed
supra, is only for the limited purpose of consideration of prayer under Section
319 Cr.P.C as against the Appellant. The learned trial Judge may
independently appreciate the evidence on record according to law without
being influenced by the observations made in this judgment.
As a sequel thereto, miscellaneous petitions, pending if any, shall
stand closed.
Dr.JUSTICE VENKATA JYOTHIRMAI PRATAPA
07.03.2025
L.R.Copy to be marked
Dinesh/
Mjl/*
45
HON’BLE DR. JUSTICE VENKATA JYOTHIRMAI PRATAPA
Crl.A.No.41 of 2025
07.03.2025
Dinesh
Mjl/*
46
IN THE HIGH COURT OF ANDHRA PRADESH, AMARAVATI
CRIMINAL APPEAL No. 41 OF 2025
Between:
RUTHALA RAMANA ALIAS RAMANA MASTER, S /O PARADESI, RETD.
TEACHER, 65 YEARS. K. VELAMA, BURUGUPALEM VILLAGE,
MAKAVARAPALEM MANDAL, (ADDED AS CO -ACCUSED IN THE
ABOVE CASE AS PER THE ORDER OF THE HONOURABLE COURT
VIDE DT. 11-09-2024)
...APELLANT
AND
1. THE STATE OF ANDHRA PRADESH, REP, BY I TS PUBLIC
PROSECUTOR, HIGH COURT OF ANDHRA PRADESH, HIGH
COURT BUILDINGS AT AMARAVATHI.
2. OBBALAREDDY CHINNABBAI, S/O NOOKARAJU 59 YEARS K
VELAMA, BURUGUPALLEM VILLAGE, MAKAVARAPALEM MANDAL,
PRESENTLY ANAKAPALLI DISTRICT.
3. YADAGIRI MALIAYA, S/O NAGULU 76 YEARS, SC BURUGUPALLEM
VILLAGE, MAKAVARAPALEM MANDAL, PRESENTLY ANAKAPALLI
DISTRICT.
4. MARRA PENTAMMA, W/O VEERANNA 63 YEARS SC
BURUGUPALLEM VILLAGE, MAKAVARAPALEM MANDAL,
PRESENTLY ANAKAPALLI DISTRICT.
...RESPODENT(S):
DATE OF JUDGMENT PR ONOUNCED: 07.03.2025
SUBMITTED FOR APPROVAL :
THE HON’BLE Dr. JUSTICE VENKATA JYOTHIRMAI PRATAPA
1. Whether Reporters of Local Newspapers
may be allowed to see the judgment? Yes/No
2. Whether the copies of judgment may be
marked to Law Reporters / Journals? Yes/No
3. Whether Her Lordship wish to
see the fair copy of the Judgment? Yes/No
Dr.JUSTICE VENKATA JYOTHIRMAI PRATAPA
47
* THE HON’BLE Dr.JUSTICE VENKATA JYOTHIRMAI PRATAPA
+ CRIMINAL APPEAL No. 41 OF 2025
% 07.03.2025
Between:
RUTHALA RAMANA ALIAS RAMANA MASTER, S/O PARADESI, RETD.
TEACHER, 65 YEARS. K. VELAMA, BURUGUPALEM VILLAGE,
MAKAVARAPALEM MANDAL, (ADDED AS CO -ACCUSED IN THE
ABOVE CASE AS PER THE ORDER OF THE HONOURABLE COURT
VIDE DT. 11-09-2024)
...APPELLANT
AND
1. THE STATE OF ANDHRA PRADESH, REP, BY ITS PUBLIC
PROSECUTOR, HIGH COURT OF ANDHRA PRADESH, HIGH
COURT BUILDINGS AT AMARAVATHI.
2. OBBALAREDDY CHINNABBAI, S/O NOOKARAJU 59 YEARS K
VELAMA, BURUGUPALLEM VILLAGE, MAKAVARAPALEM MANDAL ,
PRESENTLY ANAKAPALLI DISTRICT.
3. YADAGIRI MALIAYA, S/O NAGULU 76 YEARS, SC BURUGUPALLEM
VILLAGE, MAKAVARAPALEM MANDAL, PRESENTLY ANAKAPALLI
DISTRICT.
4. MARRA PENTAMMA, W/O VEERANNA 63 YEARS SC
BURUGUPALLEM VILLAGE, MAKAVARAPALEM MANDAL,
PRESENTLY ANAKAPALLI DISTRICT.
...RESPODENT(S):
! Counsel for Appellant : Sri P.A.K.Kishore
^ Counsel for Respondents : Ms.K.Priyanka Lakshmi,
Assistant Public Prosecutor for R.1
< Gist:
> Head Note:
? Cases referred:
1. AIR 1959 SC 1012
2. (2004) 1 SCC 184
3. 2015 (9) SCC 588
4. 2021 (10) SCC 598
5. AIR 1964 SC 1563
6. (2004) 11 SCC 231
48
7. (2004) 13 SCC 174
8. (2005) 9 SCC 769
9. (2009) 4 SCC 271
10. (2009) 11 SCC 106
11. 2023 INSC 957
12. (2024) SCC Online SC 760
13. 2017 (7) SCC 706
14. 2024 INSC 368
15. 1999 (8) SCC 649
16. (2014) 3 SCC 92
17. 2022 LiveLaw (SC) 1009
18. (2019) 12 SCC 644
19. 2024 INSC 903
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