2026:HHC:9659

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeals No. 202, 203, 204 and

205 of 2014

Reserved on: 27.02.2026

Date of Decision: 01.04.2026.

1. Cr. Appeal No. 202 of 2014

Pawan Kumar ...Appellant

Versus

State of Himachal Pradesh ...Respondent

______________________________________

2. Cr. Appeal No. 203 of 2014

Brij Lal ...Appellant

Versus

State of Himachal Pradesh ...Respondent

______________________________________

3. Cr. Appeal No. 204 of 2014

Kanchan Kumar ...Appellant

Versus

State of Himachal Pradesh ...Respondent

______________________________________

4. Cr. Appeal No. 205 of 2014

Sanjeev Kumar @ Sanju ...Appellant

Verus

State of Himachal Pradesh ...Respondent

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Coram

Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?

1

Yes

For the Appellant(s): Mr Rajiv Rai, Advocate, in all the

appeals.

For Respondent/State: Mr Lokender Kutlehria, Additional

Advocate General, in all the appeals.

Rakesh Kainthla, Judge

The present appeals are directed against the judgment

of conviction dated 28.04.2014, and order of sentence dated

30.04.2014 passed by learned Additional Sessions Judge,

Ghumarwin, District Bilaspur, H.P. (learned Trial Court) vide

which the respondents (accused before the learned Trial Court)

were convicted and sentenced as under: -

Sections Sentences

363 read with

Section 120-B of IPC

The accused were sentenced to

undergo rigorous imprisonment for

three years each, pay a fine of

₹5000/- each, and in default of

payment of fine to undergo further

simple imprisonment for six months

each.

366 read with

Section 120-B of IPC

The accused were sentenced to

undergo rigorous imprisonment for

five years each, pay a fine of ₹5,000/-

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

3

2026:HHC:9659

each, and in default of payment of the

fine, to undergo further simple

imprisonment for six months each.

Accused Sanjeev

Kumar @ Sanju was

also sentenced

under Section 506 of

IPC

The accused was sentenced to

undergo rigorous imprisonment for

three years, pay a fine of ₹5000/-,

and in default of payment of fine, to

undergo further simple

imprisonment for two months.

All the substantive sentences of imprisonment were ordered

to run concurrently.

(Parties shall hereinafter be referred to in the same manner as they

were arrayed before the learned Trial Court for convenience.)

2. Briefly stated, the facts giving rise to the present

appeals are that the informant (PW1) is the father of the victim

(name being withheld to protect her identity), who was studying

in class 9

th

. He received a call on 16.08.2008 at 10:00 PM, and the

caller expressed his intention to talk to the victim. The victim

revealed that the caller was Pawan, a friend of Sanju. Another call

was received on 17.08.2008 at about 11 PM, and this time the call

was answered by victim’s grandfather (PW9). When victim’s

grandfather enquired about the purpose of the call, the caller

disconnected the phone call. The victim revealed on 18.08.2008

that Sanjeev @ Sanju used to ask her to marry him or he would kill

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his father. He had done bad acts with her. The victim was found

missing from her home on 19.08.2008. The informant made a

complaint (Ext.PW1/A) to the police, and the police registered an

FIR (Ext.PW20/B). HC Hem Raj (PW17) investigated the matter. He

searched the victim. One HRTC bus came from Shimla and halted

at Brahmpukhar. The victim alighted from the bus at

Brahmpukhar. The informant identified her. Memo of recovery

(Ext. PW1/B) was prepared. The victim was brought to the

hospital. An application (Ext.PW11/A) was filed for her medical

examination. Dr D. Bhangal (PW11) examined the victim and

found that she had not sustained any injury. The Medical Officer

preserved the sample. She advised X-ray for age determination

and referred the victim to a dental surgeon. She also sought the

opinion from the gynaecologist. Dr Poojan (PW3) examined the

victim at the KNH Shimla on 21.08.2008 and issued the MLC

(Ext.PW3/A). As per his opinion, the possibility of sexual

intercourse could not be ruled out. HC Hemraj (PW17) prepared

the spot map (Ext.PW17/A) and handed over the victim’s custody

to her parents. Inspector Mool Raj (PW19) conducted further

investigation. He visited the spot from where the victim was

kidnapped and prepared a spot map (Ext.PW19/A). He arrested the

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2026:HHC:9659

accused P (a juvenile) and seized the clothes worn by him. These

were put in a cloth parcel, and the parcel was sealed with eight

seals of Seal ‘T. The parcel was seized by vide memo (Ext.PW19/B).

School leaving certificate of P (Ext. PW5/B) was seized vide memo

(Ext. PW5/A). Inspector Mool Raj (PW19) filed an application

(Ext.PW7/A) for obtaining the Pariwar Register and birth

certificate of the victim. Shashi Kumar (PW13) issued a copy of the

Pariwar Register (Ext.PW7/B). ASI Krishan Chand (PW18)

investigated the matter. He arrested the accused Kanchan Kumar.

He obtained the birth certificate of the victim (Ext.PW13/A). The

birth certificate of the juvenile P (Ext.PW18/A) and the Pariwar

register (Ext.PW18/B) confirmed that he was a juvenile. The

samples were sent to SFSL for analysis, and as per the report

(Ext.PW18/D), no blood and semen were detected on the exhibits.

Dr D. Bhangal (PW11) issued a final opinion mentioning that it was

not possible to rule out the possibility of rape. The X-ray films

(Ext.PA to Ext.PE) were taken into possession, and the skeletal age

of the victim was found to be between 16 and 18 years. An

application (Ext.PW12/A) was filed for supplying the birth

certificate from the victim’s school. Nirmala Chauhan (PW12)

supplied the school leaving certificate (Ext.PW12/B). The

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2026:HHC:9659

statements of witnesses were recorded as per their version, and

after the completion of the investigation, the challan was

prepared and presented in the Court of learned Chief Judicial

Magistrate, Bilaspur, who committed it to the Court of learned

Sessions Judge for trial. Learned Sessions Judge, Bilaspur, sent the

matter to learned Additional Sessions Judge, Ghumarwin (learned

Trial Court).

3. Learned Trial Court charged the accused Brij Lal,

Pawan Kumar and Kanchan Kumar with the commission of

offences punishable under Sections 120-B, 363 and 366 of IPC and

the accused Sanjeev Kumar with the commission of offences

punishable under Sections 120-B, 363, 366, 376 and 506 of IPC, to

which the accused pleaded not guilty and claimed to be tried.

4. The prosecution examined 26 witnesses to prove its

case. The informant (PW1) had reported the matter to the police.

Arun Kumar (PW2) took the X-rays of the victim. Dr Poojan (PW3)

and Dr D. Bhangal (PW11) medically examined the victim. Victim

(PW4) narrated the incident. HC Kishori Lal (PW5) witnessed the

recovery. Roshan Lal (PW6), Shakuntala Devi (PW14) and Raj

Kumar (PW21) did not support the prosecution’s case. Shashi

Kumar (PW7) produced a copy of the Pariwar Register of the

7

2026:HHC:9659

victim. ASI Diwan Singh (PW8) obtained the printout of the call

detail record of the mobile No. xxxx408 and xxxx271. Victim’s

grandfather (PW9) was using the mobile No. xxx 408. Dr Yuvraj

Shori (PW10) medically examined the accused Sanjeev Kumar.

Nirmala Chauhan (PW12) produced the school-leaving certificate

of the victim. Shashi Kumar (PW13) supplied the birth certificate

of the victim. HC Davinder Kumar (PW15) carried the case

property to SFSL Junga. Inspector Megh Nath (PW16) prepared the

challan. HC Hem Raj (PW17), SI Krishan Chand (PW18), and

Inspector Mool Raj (PW19) investigated the matter. Taranjeet

Singh (PW20) signed the FIR. HC Suresh Kumar (PW22) was

working as MHC with whom the case property was deposited.

Inspector Jasbir Singh (PW23) wrote the letter for obtaining the

customer details of the mobile numbers xxx 408 and xxxx201.

Kashmiri Lal (PW24) issued the certificate. Parkash Chand (PW25)

obtained the opinion of the Medical Officer. Dr Dinesh Sharma

(PW26) stated that he had not done anything in the present case.

5. The accused, in their statements recorded under

Section 313 of Cr.P.C., denied the prosecution’s case in its entirety.

Accused Pawan Kumar stated that he was innocent, and a false

case was registered against him due to enmity. Accused Sanjeev

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2026:HHC:9659

Kumar @ Sanju stated that he was falsely implicated because of

the land dispute. Accused Brij Lal and Kanchan Kumar claimed

that they were innocent. They did not produce any evidence in

their defence.

6. Learned Trial Court held that the testimonies of the

witnesses corroborated each other. The victim was proven to be a

minor on the date of the incident, and she was incapable of

consenting. The victim’s testimony was duly corroborated by the

medical evidence. She was taken out of the lawful guardianship of

her father. All the accused were acting together. Accused Kanchan

Kumar had accompanied the victim from Jukhala to

Brahmpukhar. Accused Pawan Kumar and Brij Lal had called the

victim’s grandfather. They were forcing her to marry the accused

Sanjeev Kumar. This proved that the accused had entered into a

conspiracy. The failure to disclose the commission of rape by the

victim to her parents was not material, considering the age of the

victim. Therefore, the learned Trial Court convicted and sentenced

the accused as aforesaid.

7. Being aggrieved by the judgment and order passed by

the learned Trial Court, the accused filed separate appeals.

9

2026:HHC:9659

8. I have heard Mr Rajeev Rai, learned counsel for the

appellants and Mr Lokender Kutlehria, learned Additional

Advocate General for the respondents/State.

9. Mr Rajeev Rai, learned counsel for the

appellants/accused, submitted that the learned Trial Court erred

in appreciating the evidence on record. The victim was not proven

to be a minor. She was travelling in the bus and had not protested

or made any hue and cry, which showed her consent. The

prosecution witnesses admitted the enmity between the accused

and the family members of the victim, and the possibility of false

implication could not be ruled out. There was no evidence of any

conspiracy, and the learned Trial Court erred in holding that the

charge of conspiracy was proved. The statements of the

prosecution’s witnesses contradicted each other on material

particulars, which made the prosecution’s case suspect. Hence, he

prayed that the present appeals be allowed and the judgment and

order passed by the learned Trial Court be set aside.

10. Mr Lokender Kutlehria, learned Additional Advocate

General for the respondent/State, submitted that the date of birth

of the victim was proved by the copy of the birth certificate and

the certificate taken from the school. The opinion of the

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2026:HHC:9659

Radiologist was not conclusive, and it had a margin of error. The

learned Trial Court had rightly held that the victim was a minor

and her consent was immaterial. The accused had taken the victim

out of the lawful keeping of her guardian. The accused Sanjeev @

Sanju had raped her, and this fact was confirmed in the medical

opinion. There was no reason for the victim to falsely implicate

the accused. Learned Trial Court had taken a reasonable view, and

no interference is required with the judgment and order passed by

the learned Trial Court. Hence, he prayed that the present appeals

be dismissed.

11. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

12. Informant (PW1) stated that the victim is his daughter.

He had entered her name in the Panchayat record. She was

studying in school and was aged 16 years. He stated in his cross-

examination that he was married when he was 21 years of age.

However, he did not remember the year of his marriage.

13. Shashi Kumar (PW7) stated that an application was

filed by the police for issuing the birth certificate of the victim. He

issued a copy of the Pariwar Register (Ext.PW7/B). He admitted in

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his cross-examination that he had not made entries in the

Pariwar Register and could not say who had made these entries.

14. The entry (Ext.PW7/B) shows that the victim was born

on 02.08.1992. The year of birth of her parents was mentioned as

1970, which corroborates the statement of victim’s father that he

was married at the age of 21 years. The victim was born in the year

1992 when the informant was aged 22 years.

15. It was submitted that this witness had not made the

entry in the Pariwar Register, and the entry was not proved as per

the law. This submission is only stated to be rejected. It was laid

down by this Court in Vidya Dhar vs. Mohan Lal (12.04.1978 -HPHC): MANU/HP/0030/1978 that the family registers are

maintained pursuant to the instructions issued by the

Government, and entries made therein are admissible under

Section 35 of the Indian Evidence Act. Therefore, there was no

requirement to prove the Pariwar Register by examining the

person who had made the entry.

16. Shashi Kumar (PW13) stated that he had prepared the

birth certificate (Ext.PW13/A) showing that the victim was born on

02.08.1992. He stated in his cross-examination that the entry on

12

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page 44 of the Register pertains to the single hand. He did not

know who had made the entry in page No. 44.

17. The copy of the birth certificate (Ext.PW7/B) also

shows that the victim was born on 02.08.1992. This is a copy of

the public record and is, per se, admissible. Hence, the admission

made by Shashi Kumar (PW13) in his cross-examination that he

was not aware as to who had made the entry in the original

Register will not make the birth register doubtful.

18. The victim was studying in school. Nirmala Chauhan

(PW12) issued the victim’s school leaving certificate (Ext.PW12/B)

showing that the date of the birth of the victim was 02.08.1992.

She admitted in her cross-examination that the entries in the

admission and withdrawal register were not made by her. This

admission will not make any difference as the entry was made by a

public official in discharge of the official duties. Therefore, the

entry is per se admissible, and its proof was not required.

19. Therefore, the documents on record clearly showed

that the victim was born on 02.08.1992 and was aged 16 years on

the date of the incident.

20. Dr D. Bhangal (PW11) stated the skeletal age of the

victim was found to be 16-18 years. It was submitted that there is

13

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a variation of two years, and the testimony of this witness shows

that the victim might have been a major. This submission will not

help the accused. It was laid down by the Hon’ble Supreme Court

in Bhoop Ram v. State of U.P., (1989) 3 SCC 1, that the entry in the

school register will prevail upon the certificate issued by a

radiologist regarding the age. The birth certificate taken from the

Panchayat and the school show the victim’s date of birth as

02.08.1992. These entries have to be preferred to the opinion

expressed by the radiologist based upon the radiological

examination, and the opinion evidence cannot be used to discard

the definite opinion regarding the date of birth of the victim.

21. Therefore, the learned Trial Court had rightly

concluded that the victim was proved to be a minor on the date of

the incident, and there is no infirmity in the findings recorded by

the learned Trial Court.

22. The victim (PW4) stated that she was studying in class

9

th

in the year 2008. Her date of birth is 02.08.1992. Accused

Sanjeev Kumar had illicit relations with her since she was 8-9

years of age. Accused Kanchan and Brij Lal used to call her on her

grandfather’s phone from a mobile number xxxx207, inter alia,

compelling her to marry the accused Sanjeev Kumar. Her

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grandfather asked her about the relationship with the caller, and

she narrated the truth. Her grandfather and family members

asked the parents of the accused, Sanjeev Kumar, about the illicit

relations. The parents of the accused started quarrelling with her

family members. They said that she was telling a lie. She had gone

to fetch drinking water in the evening when the accused Sanjeev

met her on the way. He told her that the relationship between

them was known to everybody, and he advised her to run away

from home. He asked her to go to the house of her aunt and tell

her falsely that she (the victim) had consumed poison. The

accused also promised to pay money to her for running away from

her home. She left her home at 7 PM and went to the house of the

accused Sanjeev Kumar, who paid ₹800/- to her. She went to the

house of her aunt and told her falsely that she had consumed

poison, and she should accompany her to the hospital. However,

her aunt refused to accompany her. The victim left the home of

her aunt, but she was caught at some distance. She (aunt) went to

her home to call the victim’s parents. The victim ran away

towards Jukhala. Accused Kanchan met her. She told the accused

Kanchan that she wanted to return to her home, and she had

committed the mistake by leaving her home. Accused Kanchan

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2026:HHC:9659

told her that Sanjeev would kill her if she returned to her home.

He also slapped her. He took her towards Jukhala through Khad.

He told her to call Pawan and get the number of P from him. She

called P, but his phone was switched off. She called Kanchan from

an STD booth, who told her to wait as he would be coming with P.

After some time, P came and advised her to go to her home, but

she declined. She, P, and Kanchan went towards Brahmpukhar.

Accused Sanjeev @ Sanju came to the spot in a jeep and sent her

and P to Shimla in a bus. Accused Kanchan and Sanjeev Kumar

returned. Accused Sanjeev had advised her that he would contact P

on his cell phone and would disclose the further plan. However, no

call was received till 11 AM. P received a call from his home, and

his parents told him that the victim’s parents had reported the

matter to the police. She and P returned in the HRTC Bus and she

was apprehended at Brahmpukhar. P tried to run away, but he was

caught by the police. She was taken to the hospital, where she was

medically examined.

23. She stated that her sister was one year younger than

her. She had cordial relations with the family of the accused. One

year before the incident, she and her sister used to visit the house

of the accused, Sanjeev Kumar. P was her class fellow, and she was

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on talking terms with him. The mobile numbers of the accused

were saved in the cell phone of her grandfather. She had attended

the phone call of accused Kanchan, who had advised her to marry

accused Sanjeev Kumar. His mother and the mother of P had an

altercation regarding her disappearance. She had not disclosed

anything to her aunt. She told the incident to her family members

on 18.08.2008. Her statement was recorded in the Court. The

accused Sanjeev had committed wrong acts with her for about 8

years. She denied that she was making a false statement, and she

had voluntarily accompanied P to Shimla. She denied that she was

incapable of maintaining a physical relationship.

24. The statement of this witness is duly corroborated by

her aunt (PW14), who stated that the victim had come to her on

18.08.2008 and told her that she would stay in her home. She

disclosed that she had consumed poison and requested that she be

accompanied to fetch medicines. She told the victim that her

husband would come shortly and she would take her to the Doctor.

However, the victim left the home. She informed the victim’s

grandfather. She searched for the victim, but the victim could not

be found. She was permitted to be cross-examined. She admitted

that the accused Sanjeev @ Sanju is her brother-in-law. She

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2026:HHC:9659

admitted that the victim had told her to accompany her to fetch

medicines. She denied in her cross-examination that the victim

had not visited her home.

25. This witness supported the victim’s version that she

had gone to her aunt’s house and disclosed to her about the

consumption of the poison.

26. It was submitted that the victim had stated that she

was apprehended by her aunt after she had left her home, and

this witness had not supported this part of the victim’s

testimony. This submission will not help the accused. This

witness admitted her relationship with the accused; therefore,

she had a reason to favour the accused. The victim had made the

statement on 29.09.2011 after the lapse of three years, and the

memory was bound to fail with time. Hon’ble Supreme Court held

in Rajan v. State of Haryana, 2025 SCC OnLine SC 1952, that the

discrepancies in the statements of the witnesses are not sufficient

to discard the prosecution case unless they shake the core of the

testimonies. It was observed: -

“32. The appreciation of ocular evidence is a hard task.

There is no fixed or straitjacket formula for the

appreciation of the ocular evidence. The judicially evolved

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principles for the 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 an 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, a 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

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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 videotape 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 the exact time of an incident, or the time

duration of an occurrence, usually, people make their

estimates by guesswork 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 that 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

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2026:HHC:9659

cross-examination by counsel and, out of nervousness,

mix up facts, get confused regarding the sequence of

events, or fill in details from imagination on the spur of

the moment. The subconscious mind of the witness

sometimes 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 a contradiction. Unless the former statement

has the potency to discredit the latter statement, even if

the latter 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) 3 SCC 217: 1983 Cri LJ 1096: (AIR 1983

SC 753) Leela Ram v. State of Haryana (1999) 9 SCC

525: AIR 1999 SC 3717 and Tahsildar Singh v. State of

UP (AIR 1959 SC 1012)”

27. It was laid down by the Hon’ble Supreme Court in

Karan Singh v. State of U.P., (2022) 6 SCC 52: (2022) 2 SCC (Cri) 479:

2022 SCC OnLine SC 253 that the Court has to examine the

evidence of the witnesses to find out whether it has a ring of truth

or not. The Court should not give undue importance to omissions,

contradictions and discrepancies which do not go to the heart of

the matter. It was observed at page 60: -

“38. From the evidence of Mahender Singh, PW 4, it

appears that no specific question was put to him as to

whether the appellant was present at the place of

occurrence or not. This Court in Rohtash Kumar v. State of

Haryana [Rohtash Kumar v. State of Haryana, (2013) 14 SCC

434: (2014) 4 SCC (Cri) 238] held: (SCC p. 446, para 24)

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“24. … The court has to examine whether the evidence

read as a whole appears to have a ring of truth. Once

that impression is formed, it is undoubtedly necessary

for the court to scrutinise the evidence more,

particularly keeping in view the deficiencies,

drawbacks, and infirmities pointed out in the evidence

as a whole and evaluate them to find out whether it is

against the general tenor of the evidence given by the

witnesses and whether the earlier evaluation of the

evidence is shaken, as to render it unworthy of belief.

Thus, the court is not supposed to give undue

importance to omissions, contradictions and

discrepancies which do not go to the heart of the matter

and shake the basic version of the prosecution witness.”

39. Referring to Narayan Chetanram Chaudhary v. State of

Maharashtra [Narayan Chetanram Chaudhary v. State of

Maharashtra, (2000) 8 SCC 457: 2000 SCC (Cri) 1546], Mr

Tyagi argued that minor discrepancies caused by lapses in

memory were acceptable, contradictions were not. In this

case, there was no contradiction, only minor discrepancies.

40. In Kuriya v. State of Rajasthan [Kuriya v. State of

Rajasthan, (2012) 10 SCC 433: (2013) 1 SCC (Cri) 202], this

Court held: (SCC pp. 447-48, paras 30-32)

“30. This Court has repeatedly taken the view that the

discrepancies or improvements which do not materially

affect the case of the prosecution and are insignificant

cannot be made the basis for doubting the case of the

prosecution. The courts may not concentrate too much

on such discrepancies or improvements. The purpose is

to primarily and clearly sift the chaff from the grain and

find out the truth from the testimony of the witnesses.

Where it does not affect the core of the prosecution

case, such a discrepancy should not be attached undue

significance. The normal course of human conduct

would be that while narrating a particular incident,

there may occur minor discrepancies. Such

discrepancies may even, in law, render credentials to

the depositions. The improvements or variations must

22

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essentially relate to the material particulars of the

prosecution case. The alleged improvements and

variations must be shown with respect to the material

particulars of the case and the occurrence. Every such

improvement, not directly related to the occurrence, is

not a ground to doubt the testimony of a witness. The

credibility of a definite circumstance of the prosecution

case cannot be weakened with reference to such minor

or insignificant improvements. Reference in this regard

can be made to the judgments of this Court in Kathi

Bharat Vajsur v. State of Gujarat [Kathi Bharat Vajsur v.

State of Gujarat, (2012) 5 SCC 724 : (2012) 2 SCC (Cri)

740], Narayan Chetanram Chaudhary v. State of

Maharashtra [Narayan Chetanram Chaudhary v. State of

Maharashtra, (2000) 8 SCC 457: 2000 SCC (Cri) 1546],

Gura Singh v. State of Rajasthan [Gura Singh v. State of

Rajasthan, (2001) 2 SCC 205: 2001 SCC (Cri) 323] and

Sukhchain Singh v. State of Haryana [Sukhchain Singh v.

State of Haryana, (2002) 5 SCC 100: 2002 SCC (Cri) 961].

31. What is to be seen next is whether the version

presented in the Court was substantially similar to what

was said during the investigation. It is only when

exaggeration fundamentally changes the nature of the

case the Court has to consider whether the witness was

stating the truth or not. [Ref. Sunil Kumar v. State (NCT

of Delhi) [Sunil Kumar v. State (NCT of Delhi), (2003) 11

SCC 367: 2004 SCC (Cri) 1055]].

32. These are variations which would not amount to any

serious consequences. The Court has to accept the

normal conduct of a person. The witness who is

watching the murder of a person being brutally beaten

by 15 persons can hardly be expected to state a minute-

by-minute description of the event. Everybody, and

more particularly a person who is known to or is related

to the deceased, would give all his attention to take

steps to prevent the assault on the victim and then to

make every effort to provide him with medical aid and

inform the police. The statements which are recorded

23

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immediately upon the incident would have to be given a

little leeway with regard to the statements being made

and recorded with utmost exactitude. It is a settled

principle of law that every improvement or variation

cannot be treated as an attempt to falsely implicate the

accused by the witness. The approach of the court has to

be reasonable and practicable. Reference in this regard

can be made to Ashok Kumar v. State of Haryana [Ashok

Kumar v. State of Haryana, (2010) 12 SCC 350: (2011) 1 SCC

(Cri) 266] and Shivlal v. State of Chhattisgarh [Shivlal v.

State of Chhattisgarh, (2011) 9 SCC 561: (2011) 3 SCC (Cri)

777].”

41. In Shyamal Ghosh v. State of W.B. [Shyamal Ghosh v. State

of W.B., (2012) 7 SCC 646: (2012) 3 SCC (Cri) 685], this Court

held: (SCC pp. 666-67, paras 46 & 49)

“46. Then, it was argued that there are certain

discrepancies and contradictions in the statements of

the prosecution witnesses inasmuch as these witnesses

have given different timings as to when they had seen

the scuffling and strangulation of the deceased by the

accused. … Undoubtedly, some minor discrepancies or

variations are traceable in the statements of these

witnesses. But what the Court has to see is whether

these variations are material and affect the case of the

prosecution substantially. Every variation may not be

enough to adversely affect the case of the prosecution.

***

49. It is a settled principle of law that the court should

examine the statement of a witness in its entirety and

read the said statement along with the statements of

other witnesses in order to arrive at a rational

conclusion. No statement of a witness can be read in

part and/or in isolation. We are unable to see any

material or serious contradiction in the statement of

these witnesses which may give any advantage to the

accused.”

24

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42. In Rohtash Kumar v. State of Haryana [Rohtash Kumar v.

State of Haryana, (2013) 14 SCC 434: (2014) 4 SCC (Cri) 238],

this Court held: (SCC p. 446, para 24)

“24. … The court has to examine whether the evidence

read as a whole appears to have a ring of truth. Once

that impression is formed, it is undoubtedly necessary

for the court to scrutinise the evidence more,

particularly keeping in view the deficiencies,

drawbacks, and infirmities pointed out in the evidence

as a whole and evaluate them to find out whether it is

against the general tenor of the evidence given by the

witnesses and whether the earlier evaluation of the

evidence is shaken, as to render it unworthy of belief.

Thus, the court is not supposed to give undue

importance to omissions, contradictions and

discrepancies which do not go to the heart of the matter

and shake the basic version of the prosecution witness.”

28. Similar is the judgment in Anuj Singh v. State of Bihar,

2022 SCC OnLine SC 497: AIR 2022 SC 2817 , wherein it was

observed: -

“17. It is not disputed that there are minor contradictions

with respect to the time of the occurrence or injuries

attributed on hand or foot, but the constant narrative of

the witnesses is that the appellants were present at the

place of occurrence, armed with guns, and they caused the

injury on informant PW-6. However, the testimony of a

witness in a criminal trial cannot be discarded merely

because of minor contradictions or omissions, as observed

by this court in Narayan Chetanram Chaudhary & Anr. Vs.

State of Maharashtra, 2000 8 SCC 457. This Court, while

considering the issue of contradictions in the testimony

while appreciating the evidence in a criminal trial, held

that only contradictions in material particulars and not

minor contradictions can be grounds to discredit the

testimony of the witnesses. The relevant portion of para 42

25

2026:HHC:9659

of the judgment reads as under:

"42. Only such omissions which amount to a

contradiction in material particulars can be used to

discredit the testimony of the witness. The omission

in the police statement by itself would not

necessarily render the testimony of the witness

unreliable. When the version given by the witness in

the court is different in material particulars from

that disclosed in his earlier statements, the case of

the prosecution becomes doubtful and not otherwise.

Minor contradictions are bound to appear in the

statements of truthful witnesses as memory

sometimes plays false, and the sense of observation

differs from person to person. The omissions in the

earlier statement, if found to be of trivial details, as

in the present case, the same would not cause any

dent in the testimony of PW 2. Even if there is a

contradiction of a statement of a witness on any

material point, that is no ground to reject the whole

of the testimony of such witness."

29. It was laid down by the Hon’ble Supreme Court in

Achchar Singh vs. State of H.P., AIR 2021 SC 3426 , that the

testimony of a witness cannot be discarded due to exaggeration

alone. It was observed:

“24. It is vehemently contended that the evidence of the

prosecution witnesses is exaggerated and thus false.

Cambridge Dictionary defines "exaggeration" as "the fact

of making something larger, more important, better or

worse than it is". Merriam-Webster defines the term

"exaggerate" as to "enlarge beyond bounds or the truth".

The Concise Oxford Dictionary defines it as "enlarged or

altered beyond normal proportions". These expressions

unambiguously suggest that the genesis of an 'exaggerated

statement' lies in a fact, to which fictitious additions are

26

2026:HHC:9659

made to make it more penetrative. Every exaggeration,

therefore, has the ingredients of 'truth'. No exaggerated

statement is possible without an element of truth. On the

other hand, the Advanced Law Lexicon defines "false" as

"erroneous, untrue; opposite of correct, or true". Oxford

Concise Dictionary states that "false" is "wrong; not

correct or true". Similar is the explanation in other

dictionaries as well. There is, thus, a marked differential

between an 'exaggerated version' and a 'false version'. An

exaggerated statement contains both truth and falsity,

whereas a false statement has no grain of truth in it (being

the 'opposite' of 'true'). It is well said that to make a

mountain out of a molehill, the molehill shall have to exist

primarily. A Court of law, being mindful of such

distinction, is duty-bound to disseminate 'truth' from

'falsehood' and sift the grain from the chaff in case of

exaggerations. It is only in a case where the grain and the

chaff are so inextricably intertwined that, in their

separation, no real evidence survives that the whole

evidence can be discarded. [Sucha Singh v. State of Punjab,

(2003) 7 SCC 643, 18.]

25. Learned State counsel has rightly relied on Gangadhar

Behera (Supra) to contend that even in cases where a major

portion of the evidence is found deficient, if the residue is

sufficient to prove the guilt of the accused, a conviction can

be based on it. This Court in Hari Chand v. State of Delhi,

(1996) 9 SCC 112 held that:

"24. ...So far as this contention is concerned, it must

be kept in view that while appreciating the evidence

of witnesses in a criminal trial, especially in a case

of eyewitnesses, the maxim falsus in uno, falsus in

omnibus cannot apply, and the court has to make

efforts to sift the grain from the chaff. It is of course

true that when a witness is said to have exaggerated

in his evidence at the stage of trial and has tried to

involve many more accused and if that part of the

evidence is not found acceptable the remaining part

of the evidence has to be scrutinised with care and

27

2026:HHC:9659

the court must try to see whether the acceptable

part of the evidence gets corroborated from other

evidence on record so that the acceptable part can

be safely relied upon..."

26. There is no gainsaying that homicidal deaths cannot be

left to judicium dei. The Court, in their quest to reach the

truth, ought to make earnest efforts to extract gold out of

the heap of black sand. The solemn duty is to dig out the

authenticity. It is only when the Court, despite its best

efforts, fails to reach a firm conclusion that the benefit of

the doubt is extended.

27. An eye-witness is always preferred to others. The

statements of P.W.1, P.W.11 and P.W.12 are, therefore, to be

analysed accordingly, while being mindful of the difference

between exaggeration and falsity. We find that the truth

can be effortlessly extracted from their statements. The

trial Court fell in grave error and overlooked the credible

and consistent evidence while proceeding with a baseless

premise that the exaggerated statements made by the

eyewitnesses belie their version.”

30. It was laid down by the Hon’ble Supreme Court in

Arvind Kumar @ Nemichand and others Versus State of Rajasthan,

2022 Cri. L.J. 374, that the testimony of a witness cannot be

discarded because he had made a wrong statement regarding

some aspect. The principle that when a witness deposes

falsehood, his entire statement is to be discarded does not apply

to India. It was observed: -

“48. The principle that when a witness deposes falsehood,

the evidence in its entirety has to be eschewed may not

have a strict application to the criminal jurisprudence in

our country. The principle governing sifting the chaff from

28

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the grain has to be applied. However, when the evidence is

inseparable and such an attempt would either be

impossible or would make the evidence unacceptable, the

natural consequence would be one of avoidance. The said

principle has not assumed the status of law but continues

only as a rule of caution. One has to see the nature of the

discrepancy in a given case. When the discrepancies are

very material, shaking the very credibility of the witness,

leading to a conclusion in the mind of the court that it is

neither possible to separate it nor to rely upon, it is for the

said court to either accept or reject."

31. Therefore, in view of the binding precedents of the

Hon’ble Supreme Court, the statements of the witnesses cannot

be discarded due to omissions, contradictions, or discrepancies.

The Court must consider whether the discrepancies negatively

affect the prosecution's case and whether they pertain to the core

of the case rather than the details. In the present case, the

discrepancy related to a detail, and is not sufficient to discard the

prosecution’s case.

32. The victim was confronted with a portion of her

statement in her cross-examination; however, the Investigating

Officer, HC Hem Raj (PW17) and Inspector Mool Raj (PW19) were

not asked anything in the cross-examination about these

confrontations. Therefore, the confrontations have not been

proved as per the law. It was laid down by the Bombay High Court

about a century ago in Emperor vs. Vithu Balu Kharat (1924) 26

29

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Bom. L.R. 965 that the previous statement has to be proved before

it can be used. It was observed:

“The words "if duly proved" in my opinion, clearly show

that the record of the statement cannot be admitted in

evidence straightaway but that the officer before whom

the statement was made should ordinarily be examined as

to any alleged statement or omitted statement that is

relied upon by the accused for the purpose of

contradicting the witness; and the provisions of Section

67 of the Indian Evidence Act apply to this case, as well as

to any other similar ease. Of course, I do not mean to say

that, if the particular police officer who recorded the

statement is not available, other means of proving the

statement may not be availed of, e.g., evidence that the

statement is in the handwriting of that particular officer.”

33. It was laid down by the Hon’ble Supreme Court in

Muthu Naicker and Others, etc. Versus State of T.N. (1978) 4 SCC 385,

that if the witness affirms the previous statement, no proof is

necessary, but if the witness denies or says that he did not

remember the previous statement, the investigating officer

should be asked about the same. It was observed: -

“52. This is the most objectionable manner of using the

police statement, and we must record our emphatic

disapproval of the same. The question should have been

framed in a manner to point out that, from amongst those

accused mentioned in examination-in-chief, there were

some whose names were not mentioned in the police

statement and if the witness affirms this, no further proof

is necessary and if the witness denies or says that she does

not remember, the investigation officer should have been

questioned about it.”

30

2026:HHC:9659

34. The Gauhati High Court held in Md. Badaruddin Ahmed

v. State of Assam, 1989 SCC OnLine Gau 35: 1989 Cri LJ 1876, that if

the witness denies having made the statement, the portion

marked by the defence should be put to the investigating officer

and his version should be elicited regarding the same. It was

observed at page 1880: -

“13. The learned defence counsel has drawn our attention

to the above statement of the Investigating Officer and

submits that P.W. 4 never made his above statement before

the police and that the same, being his improved version,

cannot be relied upon. With the utmost respect to the

learned defence counsel, we are unable to accept his above

contention. Because, unless the particular matter or point

in the previous statement sought to be contradicted is

placed before the witness for explanation, the previous

statement cannot be used in evidence. In other words,

drawing the attention of the witness to his previous

statement sought to be contradicted and giving all

opportunities to him for explanation are compulsory. If

any authority is to be cited on this point, we may

conveniently refer to the case of Pangi Jogi Naik v. State

reported in AIR 1965 Orissa 205: (1965 (2) Cri LJ 661). Further,

in the case of Tahsildar Singh v. State of U.P., reported in AIR

1959 SC 1012: (1959 Cri LJ 1231) it was also held that the

statement not reduced to writing cannot be contradicted

and, therefore, in order to show that the statement sought

to be contradicted: was recorded by the police, it should be

marked and exhibited. However, in the case at hand, there

is nothing on the record to show that the previous

statement of the witness was placed before him and that

the witness was given the chance for explanation. Again,

his previous statement was not marked and exhibited.

Therefore, his previous statement before the police cannot

31

2026:HHC:9659

be used. Hence, his evidence that when he turned back, he

saw the accused Badaruddin lowering the gun from his

chest is to be taken as his correct version.

14. The learned defence counsel has attempted to persuade

us not to rely on the evidence of this witness on the ground

that his evidence before the trial Court is contradicted by

his previous statement made before the police. However, in

view of the decisions made in the said cases we have been

persuaded irresistibly to hold that the correct procedure to

be followed which would be in conformity with S. 145 of the

Evidence Act to contradict the evidence given by the

prosecution witness at the trial with a statement made by

him before the police during the investigation will be to

draw the attention of the witness to that part of the

contradictory statement which he made before the police,

and questioned him whether he did, in fact, make that

statement. If the witness admits having made the

particular statement to the police, that admission will go

into evidence and will be recorded as part of the evidence of

the witness and can be relied on by the accused as

establishing the contradiction. However, if, on the other

hand, the witness denies to have made such a statement

before the police, the particular portions of the statement

recorded should be provisionally marked for identification

as B-1 to B-1, B-2 to B-2 etc. (any identification mark) and

when the investigating officer who had actually recorded

the statements in question comes into the witness box, he

should be questioned as to whether these particular

statements had been made to him during the investigation

by the particular witness, and obviously after refreshing

his memory from the case diary the investigating officer

would make his answer in the affirmative. The answer of

the Investigating Officer would prove the statements B-1 to

B-1, B-2 to B-2, which are then exhibited as Ext. D. 1, Ext.

D. 2, etc. (exhibition mark) in the case and will go into

evidence, and may, thereafter, be relied on by the accused

as contradictions. In the case in hand, as was discussed in

above, the above procedure was not followed while cross-

32

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examining the witness to his previous statements, and,

therefore, we have no alternative but to accept the

statement given by this witness before the trial Court that

he saw the accused Badaruddin lowering the gun from his

chest to be his correct version.”

35. Andhra Pradesh High Court held in Shaik Subhani v.

State of A.P., 1999 SCC OnLine AP 413: (1999) 5 ALD 284: 2000 Cri LJ

321: (1999) 2 ALT (Cri) 208 that putting a suggestion to the witness

and the witness denying the same does not amount to putting the

contradiction to the witness. The attention of the witness has to

be drawn to the previous statement, and if he denies the same,

the same is to be proved by the investigating officer. It was

observed at page 290: -

“24… As far as the contradictions put by the defence are

concerned, we would like to say that the defence Counsel

did not put the contradictions in the manner in which it

ought to have been put. By putting suggestions to the

witness and the witness denying the same will not amount

to putting contradiction to the witness. The contradiction

has to be put to the witness as contemplated under Section

145 of the Evidence Act. If a contradiction is put to the

witness and it is denied by him, then his attention has to be

drawn to the statement made by such witness before the

Police or any other previous statement and he must be

given a reasonable opportunity to explain as to why such

contradiction appears and he may give any answer if the

statement made by him is shown to him and if he

confronted with such a statement and thereafter the said

contradiction must be proved through the Investigation

Officer. Then only it amounts to putting the contradiction

33

2026:HHC:9659

to the witness and getting it proved through the

Investigation Officer.”

36. The Calcutta High Court took a similar view in Anjan

Ganguly v. State of West Bengal, 2013 SCC OnLine Cal 22948: (2013)

2 Cal LJ 144 and held at page 151: -

“21. It was held in State of Karnataka v. Bhaskar Kushali

Kothakar, reported as (2004) 7 SCC 487 , that if any

statement of the witness is contrary to the previous

statement recorded under Section 161, Cr.P.C. or suffers

from omission of certain material particulars, then the

previous statement can be proved by examining the

Investigating Officer who had recorded the same. Thus,

there is no doubt that for proving the previous statement

Investigating Officer ought to be examined, and the

statement of the witness recorded by him can only be

proved by him, and he has to depose to the extent that he

had correctly recorded the statement, without adding or

omitting, as to what was stated by the witness.

23. Proviso to Section 162(1), Cr.P.C. states in clear terms

that the statement of the witness ought to be duly proved.

The words, if duly proved, cast a duty upon the accused

who wants to highlight the contradictions by confronting

the witness to prove the previous statement of a witness

through the police officer who has recorded the same in the

ordinary way. If the witness in the cross-examination

admits contradictions, then there is no need to prove the

statement. But if the witness denies a contradiction and the

police officer who had recorded the statement is called by

the prosecution, the previous statement of the witness on

this point may be proved by the police officer. In case the

prosecution fails to call the police officer in a given

situation Court can call this witness, or the accused can call

the police officer to give evidence in defence. There is no

doubt that unless the statement as per proviso to sub-

section (1) of Section 162, Cr.P.C. is duly proved, the

34

2026:HHC:9659

contradiction in terms of Section 145 of the Indian

Evidence Act cannot be taken into consideration by the

Court.

24. To elaborate on this further, it will be necessary to

reproduce Section 145 of the Indian Evidence Act.

“S. 145. A witness may be cross-examined as to previous

statements made by him in writing or reduced into writing,

and relevant to matters in question, without such writing

being shown to him, or being proved; but, if it intended to

contradict him by the writing, his attention must, before

the writing can be proved, be called to those parts of it

which are to be used for the purpose of contradicting him.”

25. Therefore, it is appropriate that before the previous

statement or statement under Section 161, Cr.P.C. is

proved, the attention of the witness must be drawn to the

portion in the statement recorded by the Investigating

Officer to bring to light the contradiction, a process called

confrontation.

26. Let us first understand what the proper procedure is. A

witness may have stated in the statement under Section

161, Cr.P.C. that ‘X murdered Y’. In Court witness state ‘Z

murdered Y’. This is a contradiction. Defence Counsel or

Court, and even prosecution if the witness is declared

hostile, having resiled from a previous statement, is to be

confronted to bring contradiction on record. The attention

of the witness must be drawn to the previous statement or

statement under Section 161, Cr.P.C., where it was stated

that ‘X murdered Y’. Since Section 145 of the Indian

Evidence Act uses the word being proved, therefore, in the

course of examination of the witness, a previous statement

or a statement under Section 161, Cr.P.C. will not be

exhibited but shall be assigned a mark, and the portion

contradicted will be specified. The trial Court in the event

of contradiction, has to record as under.

27. The attention of the witness has been drawn to portions

A to A of the statement marked as 1, and confronted with

the portion where it is recorded that ‘X murdered Y’. In this

35

2026:HHC:9659

manner, by way of confrontation, contradiction is brought

on record. Later, when the Investigating Officer is

examined, the prosecution or defence may prove the

statement, after the Investigating Officer testifies that the

statement assigned mark was correctly recorded by him, at

that stage statement will be exhibited by the Court. Then

the contradiction will be proved by the Investigating

Officer by stating that the witness had informed or told

him that ‘X murdered Y’ and he had correctly recorded this

fact.

28. Now, a reference to the explanation to Section 162,

Cr.P.C., which says that an omission to state a fact or

circumstance may amount to contradiction. Say, for

instance, if a witness omits to state in Court that ‘X

murdered Y’, what he had stated in a statement under

Section 161, Cr.P.C. will be materia? contradiction, for the

Public Prosecutor, as the witness has resiled from the

previous statement, or if he has been sent for trial for the

charge of murder, omission to state ‘X murdered Y’ will be

a material omission, and amount to contradiction so far as

the defence of ‘W is concerned. At that stage also attention

of the witness will also be drawn to a significant portion of

the statement recorded under Section 161, Cr.P.C., which

the witness had omitted to state, and note shall be given

that attention of the witness was drawn to the portion A to

A wherein it is recorded that ‘X murdered Y’. In this way,

the omission is brought on record. The rest of the

procedure stated earlier, qua confrontation shall be

followed to prove the statement of the witness and the fact

stated by the witness.

29. Therefore, to prove the statement for the purpose of

contradiction, it is necessary that the contradiction or

omission must be brought to the notice of the witness. His

or her attention must be drawn to the portion of the

previous statement (in the present case statement under

Section 161, Cr.P.C)”

36

2026:HHC:9659

37. A similar view was taken in Alauddin v. State of Assam,

2024 SCC OnLine SC 760, wherein it was observed:

“7. When the two statements cannot stand together, they

become contradictory statements. When a witness makes a

statement in his evidence before the Court which is

inconsistent with what he has stated in his statement

recorded by the Police, there is a contradiction. When a

prosecution witness whose statement under Section 161(1)

or Section 164 of CrPC has been recorded states factual

aspects before the Court which he has not stated in his

prior statement recorded under Section 161(1) or Section

164 of CrPC, it is said that there is an omission. There will

be an omission if the witness has omitted to state a fact in

his statement recorded by the Police, which he states

before the Court in his evidence. The explanation to Section

162 CrPC indicates that an omission may amount to a

contradiction when it is significant and relevant. Thus,

every omission is not a contradiction. It becomes a

contradiction provided it satisfies the test laid down in the

explanation under Section 162. Therefore, when an

omission becomes a contradiction, the procedure provided

in the proviso to sub-Section (1) of Section 162 must be

followed for contradicting witnesses in the cross-

examination.

8. As stated in the proviso to sub-Section (1) of section

162, the witness has to be contradicted in the manner

provided under Section 145 of the Evidence Act. Section 145

reads thus:

“145. Cross-examination as to previous statements

in writing.—A witness may be cross-examined as to

previous statements made by him in writing or reduced

into writing, and relevant to matters in question,

without such writing being shown to him, or being

proved; but, if it is intended to contradict him by the

writing, his attention must, before the writing can be

37

2026:HHC:9659

proved, be called to those parts of it which are to be used

for the purpose of contradicting him.”

The Section operates in two parts. The first part

provides that a witness can be cross-examined as to his

previous statements made in writing without such writing

being shown to him. Thus, for example, a witness can be

cross-examined by asking whether his prior statement

exists. The second part is regarding contradicting a

witness. While confronting the witness with his prior

statement to prove contradictions, the witness must be

shown his prior statement. If there is a contradiction

between the statement made by the witness before the

Court and what is recorded in the statement recorded by

the police, the witness's attention must be drawn to

specific parts of his prior statement, which are to be used

to contradict him. Section 145 provides that the relevant

part can be put to the witness without the writing being

proved. However, the previous statement used to

contradict witnesses must be proved subsequently. Only if

the contradictory part of his previous statement is proved

can the contradictions be said to be proved. The usual

practice is to mark the portion or part shown to the witness

of his prior statement produced on record. Marking is done

differently in different States. In some States, practice is to

mark the beginning of the portion shown to the witness

with an alphabet and the end by marking with the same

alphabet. While recording the cross-examination, the Trial

Court must record that a particular portion marked, for

example, as AA was shown to the witness. Which part of

the prior statement is shown to the witness for

contradicting him has to be recorded in the cross-

examination. If the witness admits to having made such a

prior statement, that portion can be treated as proved. If

the witness does not admit the portion of his prior

statement with which he is confronted, it can be proved

through the Investigating Officer by asking whether the

witness made a statement that was shown to the witness.

Therefore, if the witness is intended to be confronted with

38

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his prior statement reduced into writing, that particular

part of the statement, even before it is proved, must be

specifically shown to the witness. After that, the part of the

prior statement used to contradict the witness has to be

proved. As indicated earlier, it can be treated as proved if

the witness admits to having made such a statement, or it

can be proved in the cross-examination of the concerned

police officer. The object of this requirement in Section 145

of the Evidence Act, of confronting the witness by showing

him the relevant part of his prior statement, is to give the

witness a chance to explain the contradiction. Therefore,

this is a rule of fairness.

9. If a former statement of the witness is inconsistent

with any part of his evidence given before the Court, it can

be used to impeach the credit of the witness in accordance

with clause (3) of Section 155 of the Evidence Act, which

reads thus:

“155. Impeaching credit of the witness. — The credit

of a witness may be impeached in the following ways by

the adverse party, or, with the consent of the Court, by

the party who calls him—

(1) ….……………………………………

(2) ………………………………………

(3) by proof of former statements inconsistent with

any part of his evidence which is liable to be

contradicted.”

It must be noted here that every contradiction or

omission is not a ground to discredit the witness or to

disbelieve his/her testimony. A minor or trifle omission or

contradiction brought on record is not sufficient to

disbelieve the witness's version. Only when there is a

material contradiction or omission can the Court disbelieve

the witness's version either fully or partially. What is a

material contradiction or omission, depending upon the

facts of each case? Whether an omission is a contradiction

also depends on the facts of each individual case.

39

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10. We are tempted to quote what is held in a landmark

decision of this Court in the case of Tahsildar Singh v. State

of U.P.1959 Supp (2) SCR 875. Paragraph 13 of the said

decision reads thus:

“13. The learned counsel's first argument is based

upon the words “in the manner provided by Section 145

of the Indian Evidence Act, 1872” found in Section 162

of the Code of Criminal Procedure. Section 145 of the

Evidence Act, it is said, empowers the accused to put all

relevant questions to a witness before his attention is

called to those parts of the writing with a view to

contradicting him. In support of this contention,

reliance is placed upon the judgment of this Court in

Shyam Singh v. State of Punjab [(1952) 1 SCC 514: 1952

SCR 812]. Bose, J. describes the procedure to be followed

to contradict a witness under Section 145 of the

Evidence Act, thus at p. 819:

Resort to Section 145 would only be necessary if

the witness denies that he made the former

statement. In that event, it would be necessary to

prove that he did, and if the former statement was

reduced to writing, then Section 145 requires that his

attention must be drawn to these parts which are to

be used for contradiction. But that position does not

arise when the witness admits the former statement.

In such a case, all that is necessary is to look to the

former statement of which no further proof is

necessary because of the admission that it was

made.”

It is unnecessary to refer to other cases wherein a

similar procedure is suggested for putting questions

under Section 145 of the Indian Evidence Act, for the

said decision of this Court and similar decisions were

not considering the procedure in a case where the

statement in writing was intended to be used for

contradiction under Section 162 of the Code of Criminal

Procedure. Section 145 of the Evidence Act is in two parts:

the first part enables the accused to cross-examine a

40

2026:HHC:9659

witness as to a previous statement made by him in writing

or reduced to writing without such writing being shown to

him; the second part deals with a situation where the

cross-examination assumes the shape of contradiction: in

other words, both parts deal with cross-examination; the

first part with cross-examination other than by way of

contradiction, and the second with cross-examination by

way of contradiction only. The procedure prescribed is that,

if it is intended to contradict a witness by the writing, his

attention must, before the writing can be proved, be called

to those parts of it which are to be used for the purpose of

contradicting him. The proviso to Section 162 of the Code of

Criminal Procedure only enables the accused to make use of

such a statement to contradict a witness in the manner

provided by Section 145 of the Evidence Act. It would be

doing violence to the language of the proviso if the said

statement be allowed to be used for the purpose of cross-

examining a witness within the meaning of the first part of

Section 145 of the Evidence Act. Nor are we impressed by

the argument that it would not be possible to invoke the

second part of Section 145 of the Evidence Act without

putting relevant questions under the first part thereof. The

difficulty is more imaginary than real. The second part of

Section 145 of the Evidence Act clearly indicates the simple

procedure to be followed. To illustrate: A says in the witness

box that B stabbed C; before the police, he had stated that D

stabbed C. His attention can be drawn to that part of the

statement made before the police, which contradicts his

statement in the witness box. If he admits his previous

statement, no further proof is necessary; if he does not

admit it, the practice generally followed is to admit it

subject to proof by the police officer. On the other hand,

the procedure suggested by the learned counsel may be

illustrated thus: If the witness is asked, “Did you say

before the police officer that you saw a gas light?” and

he answers “yes”, then the statement which does not

contain such recital is put to him as a contradiction.

This procedure involves two fallacies: one is that it

enables the accused to elicit by a process of cross-

41

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examination what the witness stated before the police

officer. If a police officer did not make a record of a

witness's statement, his entire statement could not be

used for any purpose, whereas if a police officer

recorded a few sentences, by this process of cross-

examination, the witness's oral statement could be

brought on record. This procedure, therefore,

contravenes the express provision of Section 162 of the

Code. The second fallacy is that by the illustration given

by the learned counsel for the appellants, there is no

self-contradiction of the primary statement made in the

witness box, for the witness has yet not made on the

stand any assertion at all which can serve as the basis.

The contradiction, under the section, should be between

what a witness asserted in the witness box and what he

stated before the police officer, and not between what

he said he had stated before the police officer and what

he actually made before him. In such a case, the

question could not be put at all: only questions to

contradict can be put, and the question here posed does

not contradict; it leads to an answer which is

contradicted by the police statement. This argument of

the learned counsel based upon Section 145 of the

Evidence Act is, therefore, not of any relevance in

considering the express provisions of Section 162 of the

Code of Criminal Procedure.” (emphasis added)

This decision is a locus classicus, which will continue to

guide our Trial Courts. In the facts of the case, the learned

Trial Judge has not marked those parts of the witnesses'

prior statements based on which they were sought to be

contradicted in the cross-examination.”

38. It was laid down by the Hon’ble Supreme Court in

Matadin v. State of U.P., 1980 Supp SCC 157, that the statement

under Section 161 Cr.PC is not detailed and is meant to be brief. It

does not contain all the details. It was observed at page 158:

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2026:HHC:9659

“3. The learned Sessions Judge had rejected the evidence of

the eyewitnesses on wrong, unconvincing and unsound

reasons. The Sessions Judge appears to have been swayed

by some insignificant omissions made by some of the

witnesses in their statements before the police, and on the

basis of these omissions, dubbed the witnesses as liars. The

Sessions Judge did not realise that the statements given by

the witnesses before the police were meant to be brief

statements and could not take the place of evidence in the

Court. Where the omissions are vital, they merit

consideration, but mere small omissions will not justify a

finding by a court that the witnesses concerned are self-

contained liars. We have carefully perused the judgment of

the Sessions Judge, and we are unable to agree that the

reasons that he has given for disbelieving the witnesses are

good or sound reasons. The High Court was, therefore, fully

justified in reversing the judgment passed by the trial

court. We are satisfied that this is a case where the

judgment of the Sessions Judge was manifestly wrong and

perverse and was rightly set aside by the High Court. It was

urged by Mr Mehta that, as other appellants except

Matadin and Dulare do not appear to have assaulted the

deceased, they should be acquitted of the charge under

Section 149. We, however, find that all the appellants were

members of the unlawful assembly. Their names find a

place in the FIR. For these reasons, we are unable to find

any ground to distinguish the case of those appellants from

that of Matadin and Dulare. The argument of the learned

counsel is overruled. The result is that the appeal fails and

is accordingly dismissed. The appellants who are on bail

will now surrender to serve out the remaining portion of

their sentence.”

39. Similar is the judgment in Esher Singh v. State of A.P.,

(2004) 11 SCC 585: 2004 SCC OnLine SC 320, wherein it was held at

page 601:

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“23. So far as the appeal filed by accused Esher Singh is

concerned, the basic question is that even if the

confessional statement purported to have been made by A-

5 is kept out of consideration, whether residuary material

is sufficient to find him guilty. Though it is true, as

contended by learned counsel for the accused-appellant

Esher Singh, that some statements were made for the first

time in court and not during the investigation, it has to be

seen to what extent they diluted the testimony of Balbeer

Singh and Dayal Singh (PWs 16 and 32) used to bring home

the accusations. A mere elaboration cannot be termed a

discrepancy. When the basic features are stated, unless the

elaboration is of such a nature that it creates a different

contour or colour of the evidence, the same cannot be said

to have totally changed the complexion of the case. It is to

be noted that in addition to the evidence of PWs 16 and 32,

the evidence of S. Narayan Singh (PW 21) provides the

necessary links and strengthens the prosecution’s version.

We also find substance in the plea taken by learned counsel

for the State that evidence of Amar Singh Bungai (PW 24)

was not tainted in any way, and should not have been

discarded and disbelieved only on surmises. Balbir Singh

(PW 3), the son of the deceased, has also stated about the

provocative statements in his evidence. Darshan Singh (PW

14) has spoken about the speeches of the accused Esher

Singh, highlighting the Khalistan movement. We find that

the trial court had not given importance to the evidence of

some of the witnesses on the ground that they were

relatives of the deceased. The approach is wrong. The mere

relationship does not discredit the testimony of a witness.

What is required is careful scrutiny of the evidence. If, after

careful scrutiny, the evidence is found to be credible and

cogent, it can be acted upon. In the instant case, the trial

court did not indicate any specific reason to cast doubt on

the veracity of the evidence of the witnesses whom it had

described as the relatives of the deceased. PW 24 has

categorically stated about the provocative speeches by A-1.

No definite cross-examination on the provocative nature

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of speech regarding the Khalistan movement was made, so

far as this witness is concerned.”

40. This position was reiterated in Shamim v. State (NCT of

Delhi), (2018) 10 SCC 509: 2018 SCC OnLine SC 1559, where it was

held at page 513:

“12. While appreciating the evidence of a witness, the

approach must be whether the evidence of the witness,

read as a whole, inspires confidence. Once that impression

is formed, it is undoubtedly necessary for the court to

scrutinise the evidence more particularly keeping in view

the deficiencies, drawbacks and infirmities pointed out in

the evidence as a whole and evaluate them to find out

whether it is against the general tenor of the evidence and

whether the earlier evaluation of the evidence is shaken as

to render it unworthy of belief. Minor discrepancies on

trivial matters not touching the core of the case, a

hypertechnical approach by taking sentences torn out of

context here or there from the evidence, and attaching

importance to some technical error without going to the

root of the matter would not ordinarily permit rejection of

the evidence as a whole. Minor omissions in the police

statements are never considered to be fatal. The

statements given by the witnesses before the police are

meant to be brief statements and cannot take the place of

evidence in court. Small/trivial omissions would not justify

a finding by the court that the witnesses concerned are

liars. The prosecution’s evidence may suffer from

inconsistencies here and discrepancies there, but that is a

shortcoming from which no criminal case is free. The main

thing to be seen is whether those inconsistencies go to the

root of the matter or pertain to insignificant aspects

thereof. In the former case, the defence may be justified in

seeking advantage of incongruities obtained in the

evidence. In the latter, however, no such benefit may be

available to it.”

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2026:HHC:9659

41. Similar is the judgment in Kalabhai Hamirbhai

Kachhot v. State of Gujarat, (2021) 19 SCC 555: 2021 SCC OnLine SC

347, wherein it was observed at page 564:

“22. We also do not find any substance in the argument of

the learned counsel that there are major contradictions in

the deposition of PWs 18 and 19. The contradictions which

are sought to be projected are minor contradictions which

cannot be the basis for discarding their evidence. The

judgment of this Court in Mohar [Mohar v. State of U.P.,

(2002) 7 SCC 606: 2003 SCC (Cri) 121], relied on by the

learned counsel for the respondent State, supports the case

of the prosecution. In the aforesaid judgment, this Court

has held that convincing evidence is required to discredit

an injured witness. Para 11 of the judgment reads as under:

(SCC p. 611)

“11. The testimony of an injured witness has its own

efficacy and relevancy. The fact that the witness

sustained injuries on his body would show that he was

present at the place of occurrence and had seen the

occurrence by himself. Convincing evidence would be

required to discredit an injured witness. Similarly, every

discrepancy in the statement of a witness cannot be

treated as fatal. A discrepancy which does not affect the

prosecution’s case materially cannot create any

infirmity. In the instant case, the discrepancy in the

name of PW 4 appearing in the FIR and the cross-

examination of PW 1 has been amply clarified. In cross-

examination, PW 1 clarified that his brother Ram Awadh

had three sons: (1) Jagdish, PW 4, (2) Jagarnath, and (3)

Suresh. This witness, however, stated that Jagarjit had

only one name. PW 2 Vibhuti, however, stated that at

the time of occurrence, the son of Ram Awadh, Jagjit

alias Jagarjit, was milking a cow, and he was also called

as Jagdish. Balli (PW 3) mentioned his name as Jagjit

and Jagdish. PW 4 also gave his name as Jagdish.”

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23. The learned counsel for the respondent State has

also relied on the judgment of this Court in Naresh [State of

U.P. v. Naresh, (2011) 4 SCC 324: (2011) 2 SCC (Cri) 216]. In

the aforesaid judgment, this Court has held that the

evidence of injured witnesses cannot be brushed aside

without assigning cogent reasons. Paras 27 and 30 of the

judgment, which are relevant, read as under: (SCC pp. 333-

34)

“27. The evidence of an injured witness must be

given due weight, being a stamped witness; thus, his

presence cannot be doubted. His statement is generally

considered to be very reliable, and it is unlikely that he

has spared the actual assailant in order to falsely

implicate someone else. The testimony of an injured

witness has its own relevancy and efficacy as he has

sustained injuries at the time and place of occurrence,

and this lends support to his testimony that he was

present during the occurrence. Thus, the testimony of

an injured witness is accorded a special status in law.

The witness would not like or want to let his actual

assailant go unpunished merely to implicate a third

person falsely for the commission of the offence. Thus,

the evidence of the injured witness should be relied

upon unless there are grounds for the rejection of his

evidence on the basis of major contradictions and

discrepancies therein. (Vide Jarnail Singh v. State of

Punjab [Jarnail Singh v. State of Punjab, (2009) 9 SCC 719:

(2010) 1 SCC (Cri) 107], Balraje v. State of Maharashtra

[Balraje v. State of Maharashtra, (2010) 6 SCC 673: (2010)

3 SCC (Cri) 211] and Abdul Sayeed v. State of M.P. [Abdul

Sayeed v. State of M.P., (2010) 10 SCC 259: (2010) 3 SCC

(Cri) 1262])

***

30. In all criminal cases, normal discrepancies are

bound to occur in the depositions of witnesses due to

normal errors of observation, namely, errors of memory

due to lapse of time or due to mental dispositions such

as shock and horror at the time of occurrence. Where

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the omissions amount to a contradiction, creating

serious doubt about the truthfulness of the witness and

other witnesses also make material improvement while

deposing in the court, such evidence cannot be safe to

rely upon. However, minor contradictions,

inconsistencies, embellishments or improvements on

trivial matters which do not affect the core of the

prosecution case, should not be made a ground on

which the evidence can be rejected in its entirety. The

court has to form its opinion about the credibility of the

witness and record a finding as to whether his

deposition inspires confidence.

‘9. Exaggerations, per se, do not render the evidence

brittle. But it can be one of the factors to test the

credibility of the prosecution version when the entire

evidence is put in a crucible for being tested on the

touchstone of credibility.’ [Ed.: As observed in Bihari

Nath Goswami v. Shiv Kumar Singh, (2004) 9 SCC 186, p.

192, para 9: 2004 SCC (Cri) 1435]

Therefore, mere marginal variations in the statements

of a witness cannot be dubbed as improvements, as the

same may be elaborations of the statement made by the

witness earlier. The omissions which amount to

contradictions in material particulars, i.e. go to the root

of the case/materially affect the trial or core of the

prosecution's case, render the testimony of the witness

liable to be discredited. (Vide State v. Saravanan [State v.

Saravanan, (2008) 17 SCC 587 : (2010) 4 SCC (Cri) 580],

Arumugam v. State [Arumugam v. State, (2008) 15 SCC

590 : (2009) 3 SCC (Cri) 1130], Mahendra Pratap Singh v.

State of U.P. [Mahendra Pratap Singh v. State of U.P.,

(2009) 11 SCC 334 : (2009) 3 SCC (Cri) 1352] and Sunil

Kumar Sambhudayal Gupta v. State of Maharashtra [Sunil

Kumar Sambhudayal Gupta v. State of Maharashtra,

(2010) 13 SCC 657 : (2011) 2 SCC (Cri) 375]”

24. Further, in Narayan Chetanram Chaudhary v. State of

Maharashtra [Narayan Chetanram Chaudhary v. State of

Maharashtra, (2000) 8 SCC 457: 2000 SCC (Cri) 1546], this

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Court has considered the effect of the minor contradictions

in the depositions of witnesses while appreciating the

evidence in a criminal trial. In the aforesaid judgment, it is

held that only contradictions in material particulars and

not minor contradictions can be grounds to discredit the

testimony of the witnesses. The relevant portion of para 42

of the judgment reads as under: (SCC p. 483)

“42. Only such omissions that amount to a

contradiction in material particulars can be used to

discredit the testimony of the witness. The omission in

the police statement by itself would not necessarily

render the testimony of the witness unreliable. When

the version given by the witness in the court is different

in material particulars from that disclosed in his earlier

statements, the case of the prosecution becomes

doubtful and not otherwise. Minor contradictions are

bound to appear in the statements of truthful witnesses,

as memory sometimes plays false, and the sense of

observation differs from person to person. The

omissions in the earlier statement, if found to be of

trivial details, as in the present case, the same would

not cause any dent in the testimony of PW 2. Even if

there is a contradiction of a statement of a witness on

any material point, that is no ground to reject the whole

of the testimony of such witness.”

42. Therefore, the testimony of the victim cannot be

discarded simply because the learned defence counsel had

confronted her with a portion of her statement after asking her

whether she had deposed about what was told by her to the police.

43. It was submitted that the victim had a congenital

malformation of the vagina, as per the opinion of the

gynecologist and her testimony that the accused Sanjeev was

49

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maintaining physical relations with her is false. This submission

is only stated to be rejected. Dr Poojan (PW3) specifically stated

that, as per her opinion, the possibility of sexual intercourse

could not be ruled out even with the patient of vaginal congenital

agenesis/malformations because partial penetration is possible.

Therefore, the medical expert has categorically stated that there

was a possibility of a physical relationship, even if there was a

malformation of the vagina, and the submission that the victim’s

testimony is to be discarded because of the malformation of her

vagina cannot be accepted.

44. Raj Kumar (PW21) stated that no SIM was issued in his

name. He used SIM number xxxx729. He was permitted to be

cross-examined and denied that mobile number xxxx271 was

issued in his name; he had lost it and had not reported the matter

to the police.

45. It was submitted that the testimony of this witness

made the prosecution’s case doubtful, as the mobile number

xxx271 was not connected to the accused. This submission will

not help the accused. This witness was contradicted by his

previous statement, wherein he had told the police that the SIM

50

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belonged to him and that he had lost it. Thus, he had made two

inconsistent statements: one before the police and one before the

Court, which cannot stand together. Thus, his credit has been

impeached under Section 155 (3) of the Indian Evidence Act. It

was laid down by the Hon'ble Supreme Court in Sat Paul v. Delhi

Admn., (1976) 1 SCC 727 that where a witness has been thoroughly

discredited by confronting him with the previous statement, his

statement cannot be relied upon. However, when he is confronted

with some portions of the previous statement, his credibility is

shaken to that extent, and the rest of the statement can be relied

upon. It was observed:

“52. From the above conspectus, it emerges clearly that

even in a criminal prosecution, when a witness is cross-

examined and contradicted with the leave of the court by

the party calling him, his evidence cannot, as a matter of

law, be treated as washed off the record altogether. It is for

the Judge of fact to consider in each case whether, as a

result of such cross-examination and contradiction, the

witness stands thoroughly discredited or can still be

believed regarding a part of his testimony. If the Judge

finds that in the process, the credit of the witness has not

been completely shaken, he may, after reading and

considering the evidence of the witness, as a whole, with

due caution and care, accept, in the light of the other

evidence on the record, that part of his testimony which he

finds to be creditworthy and act upon it. If in a given case,

the whole of the testimony of the witness is impugned, and

in the process, the witness stands squarely and totally

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discredited, the Judge should, as a matter of prudence,

discard his evidence in toto.”

46. This Court also took a similar view in Ian Stilman

versus. State 2002(2) ShimLC 16 wherein it was observed:

“12. It is now well settled that when a witness who has been

called by the prosecution is permitted to be cross-

examined on behalf of the prosecution, such a witness loses

credibility and cannot be relied upon by the defence. We

find support for the view we have taken from the various

authorities of the Apex Court. In Jagir Singh v. The State

(Delhi Administration), AIR 1975 Supreme Court 1400, the

Apex Court observed:

"It is now well settled that when a witness, who has

been called by the prosecution, is permitted to be

cross-examined on behalf of the prosecution, the

result of that course being adopted is to discredit this

witness altogether and not merely to get rid of a part

of his testimony.

47. Hence, no reliance can be placed upon his testimony.

48. The victim deposed about the role of the accused

Kanchan Kumar in taking her to Jukhala through Khad. Nothing

was suggested in her cross-examination that she was having any

motive to depose falsely against the accused Kanchan. Therefore,

her testimony regarding the involvement of the accused Kanchan

cannot be discarded.

49. The victim’s father (PW1) stated that the HRTC Bus

bound to Mandi from Shimla came to Brahmpukhar at about 4:30

PM, which was stopped by the police for checking. The victim was

52

2026:HHC:9659

found sitting in the bus with P. The victim was taken off the bus

on his identification, and her custody was handed over to him.

50. HC Hem Raj (PW17) stated that he was searching for

the victim. One HRTC bus came from Shimla and stopped at

Brahmpukhar. The victim came out of the bus and was seen by her

father. She was caught by her parents.

51. It was submitted that there is a discrepancy in the

statement of these witnesses regarding the manner in which the

victim was recovered. The victim’s father stated that the victim

was seen sitting inside the bus with a juvenile P, whereas HC Hem

Raj stated that the victim was exiting the bus when she was

spotted by the victim’s parents. This discrepancy is minor and will

not affect the prosecution’s case. The core of these statements

that the victim was travelling in the bus has remained unshaken.

This is as per the victim’s version that she was coming from

Shimla with a juvenile P, and a minor discrepancy in the

statements of the witnesses is not sufficient to discredit this

version.

52. The victim stated that she had left her home at 7 PM

when her parents were busy. It was submitted that there was no

kidnapping from her lawful guardianship. This submission will

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not help the accused. The victim specifically stated that the

accused, Sanjeev Kumar @ Sanju, had told her that their

relationship was known to the whole world and she should run

away from her home. He had promised to pay her the money. She

also stated that she went to the house of the accused, and the

accused paid ₹800/- to her. Therefore, it is apparent from her

testimony that she was told that she was defamed and was

promised the money. Therefore, her consent was not free. In any

case, the victim was a minor, and her consent was immaterial.

Section 361 of IPC defines kidnapping from lawful guardianship as

under:

361. Kidnapping from lawful guardianship

Whoever takes or entices any minor under sixteen

years of age if a male, or under eighteen years of age

if a female, or any person of unsound mind, out of

the keeping of the lawful guardian of such minor or

person of unsound mind, without the consent of

such guardian, is said to kidnap such minor or

person from lawful guardianship.

53. This Section shows that the offence of kidnapping is

committed against guardians, and the consent of the minor is

immaterial. It was laid down by the Hon’ble Supreme Court in

Prakash vs. State of Haryana (2004) 1 SCC 399 that the offence of

kidnapping is for the protection of the minor, and the only

54

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consent of the guardian can take it out of the purview of section

361. It was observed:

The object of this section seems to protect the minor

children from being seduced for improper purposes, as to

protect the rights and privileges of guardians having the

lawful charge or custody of their minor wards. The

gravamen of this offence lies in the taking or enticing of a

minor under the ages specified in this section, out of the

keeping of the lawful guardian without the consent of such

guardian. The words "takes or entices any minor ......... out

of the keeping of the lawful guardian of such minor" in

Section 361 are significant. The use of the word "Keeping"

in the context connotes the idea of charge, protection,

maintenance and control; further, the guardian's charge

and control appear to be compatible with the independence

of action and movement in the minor, the guardian's

protection and control of the minor being available

whenever the necessity arises. On a plain reading of this

section, the consent of the minor who is taken or enticed is

wholly immaterial: it is only the guardian's consent, which

takes the case out of its purview. Nor is it necessary that

the taking or enticing must be shown to have been by

means of force or fraud. Persuasion by the accused person,

which creates willingness on the part of the minor to be

taken out of the keeping of the lawful guardian, would be

sufficient to attract the Section."

54. This provision was also considered by the Hon’ble

Supreme Court in Anversinha @ Kiransinh Fatesinh Zala vs. State of

Gujarat 2021(3) SCC 12, and it was held:

16. A bare perusal of the relevant legal provisions, as

extracted above, shows that consent of the minor is

immaterial for purposes of Section 361 of the IPC. Indeed,

as borne out through various other provisions in the IPC

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and other laws like the Indian Contract Act, 1872, minors

are deemed incapable of giving lawful consent. [ Satish

Kumar Jayanti Lal Dabgar vs. State of Gujarat, (2015) 7 SCC

359, 15.] Section 361 IPC, particularly, goes beyond this

simple presumption. It bestows the ability to make crucial

decisions regarding a minor's physical safety upon his/her

guardians. Therefore, a minor girl's infatuation with her

alleged kidnapper cannot by itself be allowed as a defence,

for the same would amount to surreptitiously undermining

the protective essence of the offence of kidnapping.

55. Therefore, the consent of the victim is immaterial for

the charge of kidnapping, and only the consent of the guardian of

the victim can help the accused.

56. It was submitted that the victim had left her home on

18.08.2008 at about 9-9:30 pm, and the matter was reported to

the police on 19.08.2008. There was a delay in reporting the

matter, which made the prosecution’s case suspect. This

submission cannot be accepted. The victim’s father stated that he

had searched for the victim. This was a reasonable conduct as the

victim’s father would not have rushed to the Police Station

without making inquiries from his relatives and friends.

Therefore, the delay in reporting the matter was properly

explained by the victim’s father, and the prosecution’s case

cannot be doubted due to the delay.

57. The victim’s statement showed that she left the home

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because the accused, Sanjeev, had paid her money. It was laid

down by the Hon’ble Supreme Court in State of Haryana versus

Raja Ram 1973 (1) SCC 544, that where the victim was persuaded

by the messages sent by the accused, the accused would be guilty

of kidnapping the victim out of her father's lawful guardianship.

The fact that the victim was easily persuaded would not make any

difference. It was observed: -

“9. In the present case, the evidence of the prosecutrix, as

corroborated by the evidence of Narain Das, P.W. 1 (her

father), Abinash Chander, P.W. 3 (her brother) and Smt.

Tarawanti P.W. 4 (her mother) convincingly establishes

beyond a reasonable doubt : (1) that Jai Narain had tried to

become intimate with the prosecutrix and to seduce her to

go and live with him, and an objection having been raised

by her father, who asked Jai Narain not to visit his house.

Jai Narain started sending messages to the prosecutrix

through Raja Ram, respondent; (2) that Raja Ram,

respondent, had been asking the prosecutrix to be ready to

accompany Jai Narain; (3) that at about 12 noon on April 4

Raja Ram went to see the prosecutrix at her house and

asked her to visit his house when he would convey Jai

Narain's message to her : (4) that on the same day after

some time Sona was sent by her father to the house of the

prosecutrix to fetch her to his house where the prosecutrix

was informed that Jai Narain would come that night and

would take the prosecutrix away: and (5) that Raja Ram

accordingly asked the prosecutrix to visit his house at

about midnight so that she may be entrusted to Jai Narain.

This evidence was believed by the learned Additional

Sessions Judge who convicted the respondent, as already

noticed. The learned single Judge also did not disbelieve

her statement. Indeed, in the High Court, the learned

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counsel for Raja Ram had proceeded on the assumption

that the evidence of the prosecutrix is acceptable, the

argument being that even accepting her statement to be

correct, no offence was made out against Raja Ram. Once

the evidence of the prosecutrix is accepted in our opinion,

Raja Ram cannot escape conviction for the offence of

kidnapping her from her father's lawful guardianship. It

was not at all necessary for Raja Ram to have himself gone

to the house of the prosecutrix to bring her from there on

the midnight in question. It was sufficient if he had earlier

been soliciting or persuading her to leave her father's

house to go with him to Jai Narain. It is fully established on

the record that he had been conveying messages from Jai

Narain to the prosecutrix and had himself been persuading

her to accompany him to Jai Narain's place, where he

would hand her over to him. Indisputably, the last message

was conveyed by him to the prosecutrix when she was

brought by his daughter Sona from her own house to his,

and it was pursuant to this message that the prosecutrix

decided to leave her father's house at midnight in question

for going to Raja Ram's house for the purpose of being

taken to Jai Narain's place. On these facts, it is difficult to

hold that Raja Ram was not guilty of taking or enticing the

prosecutrix out of the keeping of her father's lawful

guardianship. Raja Ram's action was the proximate cause

of the prosecutrix going out of the keeping of her father,

and indeed, but for Raja Ram's persuasive offer to take her

to Jai Narain, the prosecutrix would not have gone out of

the keeping of her father, who was her lawful guardian, as

she actually did. Raja Ram actively participated in the

formation of the intention of the prosecutrix to leave her

father's house. The fact that the prosecutrix was easily

persuaded to go with Raja Ram would not prevent him

from being guilty of the offence of kidnapping her. Her

consent or willingness to accompany Raja Ram would be

immaterial, and it would be equally so even if the proposal

to go with Raja Ram had emanated from her. There is no

doubt a distinction between taking and allowing a minor to

accompany a person. But the present is not a case of the

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prosecutrix herself leaving her father's house without any

inducement by Raja Ram, who merely allowed her to

accompany him.”

58. Similarly, it was held in Anversinha @ Kiransinh

Fatesinh Zala (supra) that where the accused had the intent to

marry the victim, her enticement was duly proved. It was

observed:

“14. Adverting to the facts of the present case, the

appellant has unintentionally admitted his culpability.

Besides the victim being recovered from his custody, the

appellant admits to having established sexual intercourse

and having the intention to marry her. Although the

victim's deposition that she was forcefully removed from

the custody of her parents might possibly be a belated

improvement, the testimonies of numerous witnesses

make out a clear case of enticement. The evidence on

record further unequivocally suggests that the appellant

induced the prosecutrix to reach at a designated place to

accompany him.”

59. In the present case, the accused and the victim knew

each other. The accused had instigated the victim to leave her

home, and the victim left the home after such instigation.

Therefore, the statement of the victim that she had left the home

on her own will not show that no offence of kidnapping was

committed.

60. The learned Trial Court held that the accused Brij Lal

used to call the victim and ask her to marry the accused Sanjeev

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Kumar @ Sanju, which showed his involvement. This finding

cannot be sustained. The victim’s grandfather (PW9) stated that

he had received a call on his mobile on 16.08.2008 in the evening,

and an enquiry was made about the victim. The caller’s mobile

number was displayed as xxxx271. The victim told him on enquiry

that the call was made by Sanjeev @ Sanju. Thus, as per his

testimony, only one call was made, and he had not handed over

the mobile phone to the victim. Hence, the part of the testimony

of the victim that accused Brij Lal used to call the victim and ask

her to marry the accused Sanjeev @ Sanju was not proved beyond

a reasonable doubt.

61. The accused Kanchan Kumar had accompanied her to

Jukhala. He advised the victim to call Pawan and ask for his

number. Pawan did not respond to the call. Therefore, the victim

has only attributed the role of making a call to the accused,

Pawan. Learned Trial Court held that the accused Pawan Kumar

and the accused Brij Lal had repeatedly threatened the victim,

which was not established from the victim’s testimony.

Therefore, the learned Trial Court erred in holding the accused

Pawan Kumar and Brij Lal guilty of the commission of offences

punishable under Section 120-B, 363 and 366 of the IPC.

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62. Accused Kanchan Kumar had accompanied the victim

to Jukhala. He had helped her to board the bus to Shimla with the

juvenile P. Accused Sanjeev @ Sanju had asked the victim to leave

the home, and accused Kanchan Kumar had facilitated the victim

after she had left the home. This conduct showed that he was

acting at the behest of the accused Sanjeev @ Sanju, and the

conspiracy to kidnap the victim was duly proved.

63. The victim specifically stated that the accused,

Sanjeev, intended to marry her. There is no reason to doubt her

testimony, and the ingredients of the commission of an offence

punishable under Section 366 of the IPC were fully satisfied.

64. The victim stated that the accused, Sanjeev Kumar,

threatened to kill her. This is corroborated by the fact that she had

not narrated the incident to any person till calls were made to her

home, and the learned Trial Court had rightly convicted the

accused Sanjeev Kumar of the commission of an offence

punishable under Section 506 of the IPC.

65. Learned Trial Court convicted the accused for the

commission of offences punishable under Sections 363 and 366 of

the IPC. Section 366 of IPC is an aggravated form of Section 363,

and as per Section 71, a person being punished for the aggravated

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form cannot be punished for a minor offence. This position was

recognised in Emperor v. Mahmud Ali Khan, 1933 SCC OnLine All 54:

ILR (1933) 55 All 557, wherein it was observed at page 561:

“It seems to me unreasonable, when a man is found guilty

of the major offence of illicitly manufacturing excisable ar-

ticles, that he should also be severely punished for keeping

in his possession materials for manufacturing those arti-

cles and for possessing them. The one offence includes all

the others. Further, section 71 of the Penal Code, 1860,

provides for this. It is there laid down that “Where any-

thing which is an offence is made up of parts, any of which

parts is itself an offence, the offender shall not be punished

with the punishment of more than one of such his of -

fences, unless it be so expressly provided”; and also

“Where several acts, of which one or more than one would

by itself or themselves constitute an offence, constitute,

when combined, a different offence, the offender shall not

be punished with a more severe punishment than the court

which tries him could award for any one of such offences.”

66. Hence, the learned Trial Court erred in convicting the

accused of the commission of an offence punishable under Section

363 read with Section 120B of the IPC.

67. No other point was urged.

68. Therefore, the learned Trial Court had rightly held

that the accused Sanjeev Kumar and Kanchan Kumar were guilty

of committing the offences punishable under Section 366 read

with Section 120-B of IPC, and the accused Sanjeev Kumar was

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guilty of the commission of the offence punishable under Section

506 of IPC.

69. Learned Trial Court erred in convicting the accused

Brij Lal and Pawan Kumar of the commission of offences

punishable under Sections 363, 366 and 120-B of IPC. Learned

Trial Court also erred in convicting the accused Sanjeev Kumar

and Kanchan Kumar of the commission of an offence punishable

under Section 363 of IPC when the conviction was recorded of the

aggravated offence of Section 366 read with Section 120 B of the

IPC. Hence, the judgment passed by the learned Trial Court is

partly sustainable.

70. Learned Trial Court sentenced each accused for the

commission of an offence punishable under Section 366 read with

Section 120-B of IPC, for 5 years pay a fine of ₹5000/- and in

default of payment of fine, to undergo simple imprisonment for

six months. The victim was a minor. She was threatened to leave

her home. Hence, in these circumstances, the sentence of 5 years

cannot be said to be excessive.

71. The learned Trial Court sentenced the accused Sanjeev

Kumar to undergo rigorous imprisonment for three years, pay a

fine of ₹5,000/- and in default of payment of fine to undergo

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further simple imprisonment for two months. The victim

consistently stated that she had been threatened since she was

aged 8 years. She was forced to leave her home by the threats

given by the accused. The accused was remotely related to her and

was bound to protect her. However, he took advantage of the

victim by intimidating her. Hence, the sentence of three years

cannot be said to be excessive.

72. In view of the above, the appeals filed by accused

Pawan Kumar, i.e., Cr. Appeal No. 202 of 2014 and accused Brij Lal,

i.e., Cr. Appeal No. 203 of 2014 are allowed, and the judgment of

conviction dated 28.04.2024 and order of sentence dated

30.04.2014 passed by the learned Trial Court qua them are ordered

to be set aside. The appellants/accused Pawan Kumar and Brij Lal

are acquitted of the commission of offences punishable under

Sections 363 and 366 read with Section 120-B of the IPC. The fine

amount, if deposited be refunded to them after the expiry of the

period of limitation for filing an appeal, if no appeal is filed, and

in case of appeal, it be dealt with as per the judgment of the

Hon’ble Supreme Court.

73. Appeals filed by accused Sanjeev Kumar and Kanchan

Kumar are partly allowed, and the conviction and sentence

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recorded for the commission of the offence punishable under

Section 363 read with Section 120-B of IPC are ordered to be set

aside. Subject to this modification, the rest of the judgment and

sentence imposed upon accused Sanjeev Kumar and Kanchan

Kumar are upheld.

74. In view of the provisions of Section 437-A of the Code

of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha

Sanhita, 2023) the appellants/accused Pawan Kumar and Brij Lal

are directed to furnish bail bonds in the sum of ₹25,000/- each

with one surety each in the like amount to the satisfaction of the

learned Trial Court within four weeks, which shall be effective for

six months with stipulation that in the event of Special Leave

Petition being filed against this judgment, or on grant of the

leave, the appellants/accused on receipt of notice thereof, shall

appear before the Hon’ble Supreme Court.

75. A copy of this judgment, along with the record of the

learned Trial Court, be sent back forthwith. Pending applications,

if any, also stand disposed of.

(Rakesh Kainthla)

Judge

1

st

April, 2026

(Nikita)