Allahabad High Court
Lakhna @ Lakhan Singh vs State Of U.P. on 2 May, 2025
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:69552-DB
Judgment reserved on 18.04.2025
Judgment delivered on: 02.05.2025
Court No. - 45
Case :- CRIMINAL APPEAL No. - 5522 of 2017
Appellant :- Lakhna @ Lakhan Singh
Respondent :- State of U.P.
Counsel for Appellant :- Ajay Sengar,Premnendra Singh,Vimlesh Kumar
Counsel for Respondent :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Hon'ble Vikram D. Chauhan,J.
1. Heard Shri Akshay Raj Singh, holding brief of Shri Ajay Sengar, learned counsel for the appellant and Shri L.D. Rajbhar, learned A.G.A. for the State.
2. Present appeal is directed against the judgment and order dated 24.07.2017 passed by Sri Shailoj Chandra, Additional Sessions Judge/FTC, Court No. 1 Hamirpur in Sessions Trial No. 74 of 2011 arising out of Case Crime No. 1989 of 2009 under Sections 376 IPC, Police Station Sumerpur, District Hamirpur, whereby the learned trial Court has convicted the appellant and sentenced him to undergo life imprisonment and has imposed fine Rs. 30,000/- for the offence under Section 376 IPC and in default of payment of that fine, to further undergo imprisonment of two years. Half amount of the fine has been directed to be paid to the victim.
3. The prosecution story emerged on the FIR dated 10.12.2009 in Case Crime No. 1989 of 2009 lodged on 10.12.2009 at about 12.20 noon with respect to occurrence caused on 08.12.2009 in the evening. The FIR is Ex.Ka-9 at the trial. It was lodged on the Written Report of that date submitted by 'M' father of the victim girl 'X', aged about 8 years. The Written Report is Ex.Ka-1 at the trial. Thus, it has been narrated, on 08.12.2009, in the evening, 'X' had gone to pick 'ber' fruit. When she reached near the field of one Vinod Singh, the present appellant Lakhan Singh @ Lakhna grabbed her and forcibly took her to a nearby field and committed rape on her. The victim returned home in the night and narrated that occurrence. On 10.12.2009, the victim 'X' was medically examined by Dr. Kiran Sachan (P.W.-6 at the trial). In that she noted following injuries suffered by the victim, were noted:
"Hymen torn at places-post cervix-torn (skin) upto the anus
antibiotic ointment applied bleed +
swab taken and send to pathologist for the preservence of sperm in the seimen
Nor age determination she is referred to CMO
Opinion-Injury by blunt object ."
4. That medical examination report is Ex.Ka-5 at the trial. Supplementary Medical Report was prepared reporting that no spermatozoa was seen on the slides, however plenty red blood cells were noted. The age of the victim was recorded to be about 10 years. That report submitted by Dr. Kiran Sachan is Ex.Ka-6 at the trial.
5. On 11.12.2009, the clothing worn by the victim 'X' at the time of occurrence was recovered by S.I. Shiv Prasad (P.W.-5 at the trial). That Recovery Memo is Ex.Ka-2 at the trial.
6. On 14.12.2009, undergarments of the present appellant were also recovered. That Recovery Memo prepared by S.I. Shiv Prasad is Ex.Ka-4 at the trial.
7. With respect to the recovery of the garments of the appellant and the victim including their undergarments, forensic report was obtained. In that, presence of spermatozoa was noted on the undergarments of the appellant and victim 'X'. On the undergarments of 'X', large number of human blood spots were found present. That report dated 04.02.2010 is Ex. Ka-11 at the trial.
8. Investigation was conducted and completed by the Investigating Officer, Mohd. Sharif Khan (P.W.-8 at the trial). Accordingly, charge sheet was submitted. Upon case being committed for trial to the Court of Sessions, following charge was framed against the appellant:
"यह कि दिनांक 8.12.09 को समय करीब सायं अदम तहरीर स्थान विनोद सिंह के खेत के पास बहद ग्राम कैथी थाना सुमेरपुर जिला हमीरपुर में आपने परिवादी 'M' की पुत्री 'X' उम्र 8 वर्ष के साथ जबरन बलात्कार किया। इस प्रकार आपने ऐसा कार्य किया जो भा०दं०सं० की धारा-376 के अन्तर्गत दण्डनीय अपराध है तथा इस न्यायालय के प्रसंज्ञान में है।"
9. At the trial, besides the above documentary evidence, prosecution led oral evidence of the first informant 'M' (P.W.-1 at the trial); victim 'X' examined as P.W.-2; 'A' a friend of victim 'X' examined as P.W.-3 and 'V' mother of 'X' examined as P.W.-4.
10. Thereafter S.I. Shiv Prasad (P.W.-5) proved the recoveries. Dr. Kiran Sachan (P.W.-6) proved the medical examination of 'X' and the injuries suffered by her as also her opinion with respect to commission of rape; Constable Deen Dayal was examined as P.W.-7 to prove the GD entries and the preparation of check FIR. Last, Mohd. Sharif Khan (P.W.-8) proved the investigation.
11. Upon conclusion of prosecution evidence, statement of the accused-appellant was recorded under Section 313 Cr.P.C. In that he claimed, he had been falsely implicated for reason of bad relations. However, no defence evidence was led.
12. After hearing the parties, learned trial Court has passed the impugned order. It has convicted the appellant and sentenced him, as noted above.
13. The appellant appears to have been arrested on 14.12.2009. He has remained confined since then. Thus, the appellant has remained confined for more than 15 years.
14. In his statement 'M' proved the FIR narration during his examination-in-chief. He also proved the Written Report submitted by him. During his cross-examination, he disclosed that he learnt about the occurrence at about 5-5.15 p.m. on 08.12.2009. He however admitted that he did not lodge the FIR immediately but that he went to the police station the next day at about 10-11 a.m. He denied the suggestion that the FIR had been lodged after due consultation with other people as he was not aware how the occurrence may have been caused. He also admitted the fact that there existed a civil litigation between him and the grand-father and father of the present appellant. He also admitted that his youngest brother 'R' managed his household and that he was also acquainted with the police authorities. However, the Written Report was submitted as per own wishes of 'M'.
15. Thereafter, 'X' was examined as P.W.-2. She was 15 years of age. During her examination-in-chief, she specifically proved, she had gone to pick 'ber' fruit when the appellant pulled her from near the agricultural field of Vinod and committed rape on her. When she started bleeding due to injury suffered on her private parts, the appellant fled. She put on her clothes and returned home in that injured state. Once home, she narrated the occurrence to her mother 'V', who in turn told the same to her father 'M' (P.W.-1). She further disclosed facts with respect to her medical examination etc.
16. She was cross-examined after about two months. Thus, on 11.04.2016 'X' offered a different version. In the first place, she stated, on reaching the agricultural field of Vinod Singh she was pulled by a boy towards another agricultural field. He slapped her on her face. In that she fell and suffered injuries on her private parts, caused by crop stubble. At that time the assailant fled. She also claimed, she did not identify her assailant. Though she claimed to have disclosed the occurrence to her parents she further claimed, she had not named the present appellant, to them.
17. Thereafter, 'A' friend of the victim 'X' was examined as P.W.-3. She was about 14-15 years of age on the date of her statement being recorded. During her examination-in-chief, she denied having accompanied 'X' to pick 'ber' fruit. She was declared hostile. During her cross-examination by the prosecution, she denied having made a statement under Section 161 Cr.P.C. as was read out to her.
18. Thereafter, 'V' the mother of 'X' was examined as P.W.-4. On 02.05.2016 she maintained, 'X' was assaulted by the appellant in the manner described in the FIR. In short, she wholly supported the prosecution story as narrated in the FIR. During her cross-examination she denied suggestion thrown at her to dispute the correctness of her statement. She maintained her stand that the appellant had dragged 'X' towards an agricultural field as he alongwith 'A' reached near the agricultural field of Vinod Singh. There he committed rape on her. As to the delay in lodging the FIR, she explained that 'X' told her about the occurrence and that she narrated to her husband in the night. Initially, they did not think it fit to report the occurrence. Later, they made that report. The witness 'V' (P.W.-4) was further cross-examined still later in 2016. She maintained her earlier stand.
19. Thereafter, Sub-Inspector Shiv Prasad was examined as P.W.-5. He proved the recoveries. Constable Deen Dayal was examined as P.W.-7. He proved the lodging of the FIR. Nothing substantive emerged during his cross-examination. Similarly, Mohd. Sharif Khan, Investigating Officer was examined as P.W.-8. He proved the investigation.
20. Dr. Kiran Sachan was examined as P.W.-6. She proved the internal injuries suffered by 'X'. During her cross-examination, she did state that the injuries may have been caused upon fall on crop stubble.
21. Learned counsel for the appellant would submit, the occurrence was caused wholly otherwise i.e. fall suffered by the victim 'X' on crop stubble. During her cross-examination, the victim clearly broke free from the tutoring offered by her parents. Thus, during her cross-examination she completely falsified the prosecution story. She denied, both, the manner of occurrence and also the presence of the appellant. Specifically, she stated that she did not recognise the appellant as the person who had slapped her leading to the fall suffered by her. Referring to the deposition of the Dr. Kiran Sachan, it has been submitted, the medical expert has clearly opined that the injuries suffered by 'X' may have been caused upon fall on crop stubble.
22. Citing gross delay in lodging the FIR, the informant side has used the occurrence to settle old scores. Reliance has been placed on the admission of 'M' (P.W.-1) as to the existence of bad relations between the parties.
23. The only other eye-witness 'A' was declared hostile during her examination-in-chief. She has not supported the prosecution story to any extent. Thus, reasonable doubt has arisen as to the credibility of the prosecution narration. Therefore, the appellant is entitled to benefit of doubt.
24. Alternatively, it has been submitted, on the issue of sentence interference is warranted inasmuch as without any reason or justifiable circumstance, the appellant has been awarded maximum punishment of life imprisonment. The appellant has remained confined for 15 years. The sentence may be reduced and he may be released now.
25. On the other hand, learned AGA has opposed the appeal. He would submit, the prosecution story is proven beyond doubt. The delay in the FIR was wholly explained. In any case, it is not decisive. As to substantive evidence, it has been submitted, the victim 'X' (P.W.-2 at the trial) duly proved the prosecution story during her examination-in-chief. Though she may have made a different statement during her cross-examination, she was never confronted with her previous statement recorded during her examination-in-chief. The ocular version offered by 'X' (P.W.-2) was wholly supported by 'V' (P.W.-4), the mother of 'X' who clearly disclosed the occurrence as exactly proven during the examination-in-chief of 'X' (P.W.-2). No doubt or discrepancy emerged during her elaborate cross-examination. Similarly, 'M' (P.W.-1), father of 'X' (P.W.-2) offered the similar version of the occurrence. Then, in absence of any doubt as to the recovery of undergarments of the appellant and the victim 'X' (P.W.-2), and the presence of human blood stain noted on the undergarment of 'X' and human semen marks found present on the undergarment of the appellant and the undergarment of 'X', wholly corroborate the prosecution story.
26. On the issue of sentence, it has been submitted, the occurrence having been caused on a minor, award of maximum sentence is wholly justified.
27. Having heard learned counsel for partied and having perused the record, in the first place it may be noted that 'M' (P.W.-1) and 'V' (P.W.-4) are not eye witnesses. Though they have supported the prosecution story, as narrated in the FIR, both witnesses are parents of 'X', the victim. They claim to have derived knowledge about the occurrence from 'X'. Therefore, independent of the statement of 'X', their testimony cannot be relied to establish the occurrence.
28. At the same time, testimony of 'M' (P.W.-1) is relevant to establish the lodging of the FIR. In that, we find that the occurrence is described to have taken place in the evening of 08.12.2009. At that time 'X', a minor aged about eight years was accompanied only by her friend 'A' (P.W.-3). It has been narrated that she suffered the occurrence of rape at the hands of the present appellant in a village field. She returned home in that injured state and narrated the occurrence first to her mother 'V' (P.W.-4) and through her to 'M' (P.W.-1). The occurrence being of December, it has to be accepted that sundown would have been early. The occurrence being of rape committed on a minor girl by a person known, some time would have been consumed in ascertaining the correct facts etc. Therefore, in the context of the above noted facts, no adverse inference may be drawn for reason of FIR not registered on 08.12.2009 itself. It is common knowledge that simple villagers may not find enough resources and arrangements as may allow them opportunity to lodge a FIR within hours of the occurrence. The hard realities of life cannot be ignored. Therefore, the fact that the FIR was lodged on 10.12.2009 at about 12 noon, is not hopelessly belated.
29. In the context of delay in lodging the FIR, the issue has been considered time and again. In Lalai @ Dindoo and Another Vs. State of U.P. (1975) 3 SCC 273, a three judge bench of the Supreme Court considered the issue and observed as below:
"6. The only other ground on which Radhey Shyam's evidence was challenged is that though the incident took place at about 10.30 p.m. on the 24th it was not until 11 a.m. on the 25th that Radhey Shyam lodged the first information report. This undoubtedly is an important circumstance but the Sessions Court and the High Court have given a reasonable explanation of the delay. The night was dark, the road was rough and the assault so fierce that Radhey Shyam could not have collected his wits to proceed straightway to the police station. There is no indication in the evidence that the names of the appellants were incorporated in the first information report as a result of any confabulation."
(emphasis supplied)
30. In Tara Singh and Others Vs. State of Punjab 1991 Supp (1) SCC 536, the Supreme Court considered the issue of delay in lodging of F.I.R. It was observed as below:
"4. It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course the Supreme Court as well as the High Courts have pointed out that in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts are cautioned to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case. In the instant case there are three eye-witnesses. They have consistently deposed that the two appellants inflicted injuries on the neck with kirpans. The medical evidence amply supports the same. In these circumstances we are unable to agree with the learned counsel that the entire case should be thrown out on the mere ground there was some delay in the FIR reaching the local Magistrate. In the report given by PW 2 to the police all the necessary details are mentioned. It is particularly mentioned that these two appellants inflicted injuries with kirpans on the neck of the deceased. This report according to the prosecution, was given at about 8.45 p.m. and on the basis of the report the Investigating Officer prepared copies of the FIR and despatched the same to all the concerned officers including the local Magistrate who received the same at about 2.45 a.m. Therefore we are unable to say that there was inordinate and unexplained delay. There is no ground to doubt the presence of the eye-witnesses at the scene of occurrence. We have perused their evidence and they have withstood the cross-examination. There are no material contradictions or omissions which in any manner throw a doubt on their veracity. The High Court by way of an abundant caution gave the benefit of doubt to the other three accused since the allegation against them is an omnibus one. Though we are unable to fully agree with this finding but since there is no appeal against their acquittal we need not further proceed to consider the legality or propriety of the findings of the High Court in acquitting them. So far as the appellants are concerned, the evidence against them is cogent and convincing and specific overt acts are attributed to them as mentioned above. Therefore we see absolutely no grounds to interfere. The appeal is, therefore, dismissed."
(emphasis supplied)
31. Then in Ravinder Kumar and Another Vs. State of Punjab (2001) 7 SCC 690, there was delay of two days in lodging the F.I.R. In that, the Supreme Court made following pertinent observations:
"13. The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein.
14. When there is criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is, the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident.
15. We are not providing an exhaustive catalogue of instances which could cause delay in lodging the FIR. Our effort is to try to point out that the stale demand made in the criminal courts to treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR the court is to look at the causes for it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the mere delay in lodging the FIR. .....
...
16. In the present case, no doubt, there is apparently a long delay of two days to give information to the police but the bereaved widow was not absolutely certain that she lost her husband once and for all until her brother-in-law confirmed to her, after identifying the dead body, that the same was that of her husband. The initial tension and suspense undergone by her would have billowed up into a massive wave of grief. It is only understandable how much time a woman, placed in such a situation, would take to reach some level of placidity for communicating to the strangers of what she knew about the last journey of her husband. We therefore find no merit in the contention based on the delay in lodging the FIR."
(emphasis supplied)
32. Then, upon the FIR being lodged, prompt action was taken by the police inasmuch as 'X' was medically examined by Dr. Kiran Sachan (P.W.-6) on that day itself, wherein various injuries were noted on her private part. The fact that presence of spermatozoa was not found on her private part at that time, is of no consequence inasmuch as the medical examination took place after 36 hours had passed. At the same time the said test clearly revealed extensive injuries suffered by 'X' on her private part. Further, recovery of the clothing worn by 'X' and the present appellant was made on 11.12.2009. Serological/forensic examination revealed presence of human blood on the undergarments of 'X'. Also, presence of human semen was found on both - undergarments of 'X' as also of the appellant. To the extent there is no credible challenge raised either to those recoveries or to the presence of human blood and human semen on those clothing, corroboration exists that the occurrence was caused, in the manner narrated. Similarly, the medical examination by Dr. Kiran Sachan with respect to the extensive injuries noted on the private part of 'X' wherein not only her hymen was found torn but post cervix was torn upto the anus, clearly corroborated the occurrence of rape.
33. As to whether the occurrence was caused in the manner narrated in the FIR and as was supported by 'M' (P.W.-1) and 'V' (P.W.-4), doubt has been raised on the strength of cross-examination statement of 'X' and the fact that her friend 'A' did not support the prosecution story, to any extent. In the first place, the fact that 'A' (P.W.-3) did not support the prosecution story is of less consequence inasmuch as here, version of 'X' (P.W.-2) is available. During her examination-in-chief, 'X' clearly supported, in full, the prosecution story. She vividly described that she had gone to pick 'ber' fruit. When she reached near the field of Vinod Singh, the appellant pulled her towards another agricultural field and committed rape on her. Due to that occurrence, she suffered injuries to her private part and started bleeding. The appellant fled after causing such occurrence. At that stage, 'X' further narrated that she gathered her clothes and reached back home. Having proven such fact, 'X' was cross examined on behalf of the appellant, after about two months. At that stage, she did not support the prosecution story to the extent she made statement inconsistent to her statement recording during her examination-in-chief. At no stage of that cross-examination, she was confronted with her previous statement made during her examination-in-chief. Unless she had been confronted with that statement, the credibility of her statement recorded during her examination-in-chief may not be doubted or discarded.
34. In Tara Singh vs State of U.P., (1951) SCC OnLine SC 49, two witnesses entered the witness box at the trial and made depositions contrary to their statements recorded earlier under Section 288 Cr.P.C. Yet, they were not confronted with that previous statements made by them. When asked about those previous statements (at the trial), they only replied that they were made under coercion. That reply was found to have not met the requirement of Section 145 of the Indian Evidence Act. In that regard, the Supreme Court observed as below:
41. Now, it is evident that one of the main purposes of using the previous statements was to contradict and displace the evidence given before the Sessions Court because until that evidence was contradicted and displaced, there was no room in this case for permitting the previous statements to be brought on record and used under Section 288. Therefore, as these statements were not put to these witnesses and as their attention was not drawn to them in the manner required by Section 145, Evidence Act, they were not admissible in evidence. The observations of the Privy Council in Bal Gangadhar Tilak v. Shriniwas Pandit [Bal Gangadhar Tilak v. Shriniwas Pandit, (1914-15) 42 IA 135 at p. 147 : 1915 SCC OnLine PC 16] are relevant here.
(emphasis supplied)
35. In Rudder vs State, 1956 SCC OnLine All 141, a co-ordinate bench of this Court opined, a deposition in Court can or cannot be reconciled with a statement made under Section 161 Cr.P.C. only after the alleged omission is brought to the notice of the witness and he is given an opportunity to explain the same. In that regard, it was observed as below:
"Desai, J. also went on to hold that if the statement under Sec. 162, Cr. P.C. can be reconciled with the deposition in court and can stand with it then there is absolutely no contradiction. The question whether the deposition in court can or cannot be reconciled with the statement recorded under Sec. 161, Cr. P.C. can only be settled after the omission has been brought to the notice of the witness and the witness has had an opportunity to give his explanation. If after the explanation it appears that the two are reconcilable, it would cease to be a contradiction. But that can happen not only in the case of an omission, but even in the case of an apparent contradiction of positive facts included in the deposition and the statement under Sec. 161, Cr. P.C. There may appear to be a contradiction between the deposition in court and the statement under Sec. 161, Cr. P.C. but when it is put to the witness, he may give an explanation which may reconcile them, whereupon the contradiction may cease to be a contradiction. The mere fact that he may possibly reconcile the two statements, cannot effect the applicability of the proviso to Sec. 162, Cr. P.C. in the case of an omission which is of such a nature that it can be held to be a contradiction."
36. In Inder Deo & Anr. vs State, (1958) SCC OnLine All 175, an issue arose if a statement recorded under Section 288 Cr.P.C. may be treated as evidence if it was not disclosed to the witness (at the time of such statement being recorded), that the Court may use the statement as evidence. While considering the issue, a coordinate bench of this Court noticed non-compliance of Section 145 of the Indian Evidence Act, 1875. Thereupon, relying on Tara Singh vs State of U.P., (supra), a coordinate bench of the Court observed as below:
"There is, in the present case, yet another difficulty which we have found in the way of properly treating the statements of the two witnesses mentioned above as admissible, if we may use that expression, under Sec. 288, Cr. P.C. and the difficulty we find is that in respect of these statements compliance had not been made of the provisions of Sec. 145 of the Indian Evidence Act. Sec. 288 itself states that evidence was subject for all purposes to the provisions of the Indian Evidence Act. As we have pointed out earlier, specific passages or the particular portions on which the prosecution desired to contradict the witnesses were not read out to the witnesses and they were not afforded an opportunity of explaining those particular or specific passages. The entire statements were read out to the witnesses and they were asked to say what they had to in regard to the entire statements. In our opinion, this was not compliance with the provisions of Sec. 145 of the Indian Evidence Act. A proper compliance of these provisions can only be if the particular passages are put to the witnesses. We may here refer to the decision of their Lordships of the Supreme Court in Tara Singh v. The State [1951 A.L.J. 640 : A.I.R. S.C. 441.] wherein their Lordships at pages 446-447 said this:
"There is some difference of opinion regarding this matter in the High Courts. Sec. 288 Provides that the evidence recorded by the Committing Magistrate in the presence of the accused may, in the circumstances set out in the section, 'be treated as evidence in the case for all purposes subject to the provisions of the Indian Evidence Act, 1872.' One line of reasoning is that Sec. 145, Evidence Act, is not attracted because that section relates to previous statements in writing which are to be used for the purpose of contradiction alone. Statements of that kind do not become substantive evidence and though the evidence given in the trial can be destroyed by a contradiction of that kind, the previous statements cannot be used as substantive evidence and no decision can be grounded on them. But under Sec. 288, Cr. P.C. the previous statement becomes evidence for all purposes and can form the basis of a conviction. Therefore, according to this line of reasoning Sec. 145, Evidence Act, is not attracted. Judges who hold that view consider that provisions of the Evidence Act referred to are those relating to hearsay and matters of that kind which touch substantive evidence."
In my opinion the second line of reasoning is to be preferred. I see no reason why Sec. 145, Evidence Act, should be excluded when Sec. 288 states that the previous statements are to be 'subject to the provisions of the Indian Evidence Act.' Sec. 145 falls fairly and squarely within the plain meaning of these words. More than that this is a fair and proper vision and is in accord with sense of fair-play to which Courts are accustomed...........I hold that the evidence in the Committal Court cannot be used in the Sessions Court unless the witness is confronted with his previous statement as required by Sec. 145, Evidence Act...... but if the prosecution wishes to go further and use the previous testimony to the contrary as substantive evidence, then it must, in my opinion, confront the witness with those parts of it which are to be used for the purpose of contradicting him. Then only can the matter be brought in as substantive evidence under Sec. 288." (The decision of the Supreme Court was given, by Bose, J. and Fazl Ali, J., Patanjali Sastri, J., and Das, J., agreed with that decision.)."
(emphasis supplied)
37. In Tahsildar Singh & Anr. vs State of U.P., (1959) SCC OnLine SC 17, six-judge bench of the Supreme Court had the occasion to consider the changes made to Section 162 of the Cr.P.C. The Supreme Court recognized the object to incorporate the amendment to Section 162 Cr.P.C. and Section 145 of the Indian Evidence Act - to protect the accused from any statement made by a witness only before any police authority and to protect the accused from any false statement deposition made at the trial. It was also recognized, such previous statement made to the police may be used by the accused person to bring out any contradiction that would be of help to the accused and/or to discredit the witness making any statement before the Court. In that regard, in paragraph 17 of the report, it has been observed as below:
"17. At the same time, it being the earliest record of the statement of a witness soon after the incident, any contradiction found therein would be of immense help to an accused to discredit the testimony of a witness making the statement. The section was, therefore, conceived in an attempt to find a happy via media, namely, while it enacts an absolute bar against the statement made before a police officer being used for any purpose whatsoever, it enables the accused to rely upon it for a limited purpose of contradicting a witness in the manner provided by Section 145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction. It cannot be used for corroboration of a prosecution or a defence witness or even a court witness. Nor can it be used for contradicting a defence or a court witness. Shortly stated, there is a general bar against its use subject to a limited exception in the interest of the accused, and the exception cannot obviously be used to cross the bar."
(emphasis supplied)
38. Then, in State of U.P. vs Nahar Singh, (1998) 3 SCC 561, the Supreme Court referred to and applied the following principle of law laid down by Lord Herschell, L.C. in Browne v. Dunn, [(1893) 6 R 67] wherein it was observed as below:
"I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses."
(emphasis supplied)
39. Then, in Rammi vs State of M.P., (1999) 8 SCC 649, the Supreme Court examined the scope of Section 155 of the Indian Evidence Act and held, the previous statement made by a witness (who later deposes before a Court), may be used to impeach his credibility, in accordance with the Section 155(3) of the Indian Evidence Act. In that, it observed as below:
"25. It is a common practice in trial courts to make out contradictions from the previous statement of a witness for confronting him during cross-examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the section is extracted below:
155. Impeaching credit of witness.--The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him--
(1)-(2)***
(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;"
26. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be "contradicted" would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross-examiner to use any former statement of the witness, but it cautions that if it is intended to "contradict" the witness the cross-examiner is enjoined to comply with the formality prescribed therein. Section 162 of the Code also permits the cross-examiner to use the previous statement of the witness (recorded under Section 161 of the Code) for the only limited purpose i.e. to "contradict" the witness."
(emphasis supplied)
40. In Karan Singh vs State of M.P., (2003) 12 SCC 587, the Supreme Court explained the object of Section 145 of the Indian Evidence Act - to give the witness a chance to explain the discrepancy or inconsistency or to clear up the point of ambiguity or dispute. In that, it observed as below:
"5. When a previous statement is to be proved as an admission, the statement as such should be put to the witness and if the witness denies having given such a statement it does not amount to any admission and if it is proved that he had given such a statement the attention of the witness must be drawn to that statement. Section 145 of the Evidence Act is clear on this aspect. The object is to give the witness a chance of explaining the discrepancy or inconsistency and to clear up the particular point of ambiguity or dispute. In the instant case, Ext. D-4 statement as such was not put to the witness nor was the witness given an opportunity to explain it. Therefore, Ext. D-4 statement, even if it is assumed to be a statement of PW 1 Hari Singh, that is of no assistance to the appellants to prove their case of private defence."
(emphasis supplied)
41. Then, in Munna Pandey vs State of Bihar, (2023) SCC OnLine SC 1103, the three-judge bench of the Supreme Court had the occasion to consider the issue as to the credibility of the prosecution evidence led at the trial, in the absence of such evidence being tested on the anvil of Section 145 of the Indian Evidence Act, 1875-by contradicting the witness with their previous statement (recorded during investigation). Deprecating the practice on part of the prosecution in not doing so and further not appreciating the slackness on part of the defence in that regard, as also cautioning the Courts to remain vigilant, on that aspect, the Supreme Court observed as below:
41. It was the duty of the defence counsel to confront the witnesses with their police statements so as to prove the contradictions in the form of material omissions and bring them on record. We are sorry to say that the learned defence counsel had no idea how to contradict a witness with his or her police statements in accordance with Section 145 of the Evidence Act, 1872 (for short, 'Evidence Act').
42. The lapse on the part of public prosecutor is also something very unfortunate. The public prosecutor knew that the witnesses were deposing something contrary to what they had stated before the police in their statements recorded under Section 161 of the CrPC. It was his duty to bring to the notice of the witnesses and confront them with the same even without declaring them as hostile.
43. The presiding officer of the Trial Court also remained a mute spectator. It was the duty of the presiding officer to put relevant questions to these witnesses in exercise of his powers under Section 165 of the Evidence Act. Section 162 of the CrPC does not prevent a Judge from looking into the record of the police investigation. Being a case of rape and murder and as the evidence was not free from doubt, the Trial Judge ought to have acquainted himself, in the interest of justice, with the important material and also with what the only important witnesses of the prosecution had said during the police investigation. Had he done so, he could without any impropriety have caught the discrepancies between the statements made by these witnesses to the investigating officer and their evidence at the trial, to be brought on the record by himself putting questions to the witnesses under Section 165 of the Evidence Act. There is, in our opinion, nothing in Section 162 CrPC to prevent a Trial Judge, as distinct from the prosecution or the defence, from putting to prosecution witnesses the questions otherwise permissible, if the justice obviously demands such a course. In the present case, we are strongly of the opinion that is what, in the interests of justice, the Trial Judge should have done but he did not look at the record of the police investigation until after the investigating officer had been examined and discharged as a witness. Even at this stage, the Trial Judge could have recalled the officer and other witnesses and questioned them in the manner provided by Section 165 of the Evidence Act. It is regrettable that he did not do so.
(emphasis supplied)
42. In Birbal Nath vs State of Rajasthan & Ors., (2023) SCC OnLine SC 1396, it has been observed as below:
"19. Statement given to police during investigation under Section 161 cannot be read as an "evidence". It has a limited applicability in a Court of Law as prescribed under Section 162 of the Code of Criminal Procedure (Cr.P.C.).
20. No doubt statement given before police during investigation under Section 161 are "previous statements" under Section 145 of the Evidence Act and therefore can be used to cross examine a witness. But this is only for a limited purpose, to "contradict" such a witness. Even if the defence is successful in contradicting a witness, it would not always mean that the contradiction in her two statements would result in totally discrediting this witness. It is here that we feel that the learned judges of the High Court have gone wrong."
(emphasis supplied)
43. Recently, in Alauddin & Ors. vs State of Assam & Anr., (2024) SCC OnLine SC 760, the Supreme Court again considered the manner in which a prosecution witness may be cross-examined with the help of their prior statement. Referring to Section 162 of the Cr.P.C. and Section 145 of the Indian Evidence Act, the Supreme Court has observed as below:
"6.............
The basic principle incorporated in sub-Section (1) of Section 162 is that any statement made by a person to a police officer in the course of investigation, which is reduced in writing, cannot be used for any purpose except as provided in Section 162. The first exception incorporated in sub-Section (2) is of the statements covered by clause (1) of Section 32 of the Indian Evidence Act, 1872 (for short, 'Evidence Act'). Thus, what is provided in sub-Section (1) of Section 162 does not apply to a dying declaration. The second exception to the general rule provided in sub-Section (1) of Section 162 is that the accused can use the statement to contradict the witness in the manner provided by Section 145 of the Evidence Act. Even the prosecution can use the statement to contradict a witness in the manner provided in Section 145 of the Evidence Act with the prior permission of the Court. The prosecution normally takes recourse to this provision when its witness does not support the prosecution case. There is one important condition for using the prior statement for contradiction. The condition is that the part of the statement used for contradiction must be duly proved."
(emphasis supplied)
44. Specifically, with respect to Section 145 of the Indian Evidence Act, the Supreme Court observed as below:
"8...............
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 the contradictions can be said to be proved. The usual practice is to mark the portion or part shown to the witness of his prior statement produced on record. Marking is done differently in different States. In some States, practice is to mark the beginning of the portion shown to the witness with an alphabet and the end by marking with the same alphabet. While recording the cross-examination, the Trial Court must record that a particular portion marked, for example, as AA was shown to the witness. Which part of the prior statement is shown to the witness for contradicting him has to be recorded in the cross-examination. If the witness admits to having made such a prior statement, that portion can be treated as proved. If the witness does not admit the portion of his prior statement with which he is confronted, it can be proved through the Investigating Officer by asking whether the witness made a statement that was shown to the witness. Therefore, if the witness is intended to be confronted with his prior statement reduced into writing, that particular part of the statement, even before it is proved, must be specifically shown to the witness. After that, the part of the prior statement used to contradict the witness has to be proved. As indicated earlier, it can be treated as proved if the witness admits to having made such a statement, or it can be proved in the cross-examination of the concerned police officer. The object of this requirement in Section 145 of the Evidence Act of confronting the witness by showing him the relevant part of his prior statement is to give the witness a chance to explain the contradiction. Therefore, this is a rule of fairness."
(emphasis supplied)
45. Recently, in Lavkush vs State of U.P., (2024) SCC OnLine All 7674, a coordinate bench of this Court also had the occasion to consider the manner of confrontation of a witness with his previous statement, in accordance with the Section 145 of the Indian Evidence Act, 1875. In that, it was observed as below:
"37.........................................
The basic principle incorporated in sub-Section (1) of Section 162 is that any statement made by a person to a police officer in the course of investigation, which is reduced in writing, cannot be used for any purpose except as provided in Section 162. The first exception incorporated in sub-Section (2) is of the statements covered by clause (1) of Section 32 of the Indian Evidence Act, 1872 (for short, 'Evidence Act'). Thus, what is provided in sub-Section (1) of Section 162 does not apply to a dying declaration. The second exception to the general rule provided in sub-Section (1) of Section 162 is that the accused can use the statement to contradict the witness in the manner provided by Section 145 of the Evidence Act. Even the prosecution can use the statement to contradict a witness in the manner provided in Section 145 of the Evidence Act with the prior permission of the Court. The prosecution normally takes recourse to this provision when its witness does not support the prosecution case. There is one important condition for using the prior statement for contradiction. The condition is that the part of the statement used for contradiction must be duly proved.
38.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.
39...............................................................
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 the contradictions can be said to be proved. The usual practice is to mark the portion or part shown to the witness of his prior statement produced on record. Marking is done differently in different States. In some States, practice is to mark the beginning of the portion shown to the witness with an alphabet and the end by marking with the same alphabet. While recording the cross-examination, the Trial Court must record that a particular portion marked, for example, as AA was shown to the witness. Which part of the prior statement is shown to the witness for contradicting him has to be recorded in the cross-examination. If the witness admits to having made such a prior statement, that portion can be treated as proved. If the witness does not admit the portion of his prior statement with which he is confronted, it can be proved through the Investigating Officer by asking whether the witness made a statement that was shown to the witness. Therefore, if the witness is intended to be confronted with his prior statement reduced into writing, that particular part of the statement, even before it is proved, must be specifically shown to the witness. After that, the part of the prior statement used to contradict the witness has to be proved. As indicated earlier, it can be treated as proved if the witness admits to having made such a statement, or it can be proved in the cross-examination of the concerned police officer. The object of this requirement in Section 145 of the Evidence Act of confronting the witness by showing him the relevant part of his prior statement is to give the witness a chance to explain the contradiction. Therefore, this is a rule of fairness.
40...........................................
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 depends upon the facts of each case. Whether an omission is a contradiction also depends on the facts of each individual case."
46. In Mayank Parasari v. State of U.P., Neutral Citation No. - 2025:AHC:23769-DB, this Court observed as below :
"47. Thus, though neither the prosecution nor the defence may rely by way of evidence - on any previous statement recorded under Section 161 Cr.P.C., at the same time, Sections 145 & 155 of the Indian Evidence Act and Section 162 Cr.P.C., allow the party adversely affected by a deposition made at a trial, to confront the witness (making such deposition), with their previous statement including that recorded under Section 161 Cr.P.C., to either impeach the credibility of the witness or to bring out a contraction. If that confrontation (with any previous statement) is not offered by that affected party, in the manner permitted under Section 145 and/or 155 of the Evidence Act or Section 162 Cr.P.C., then, the deposition made would have to be considered on its own weight, in the individual facts of each case and its correctness or truthfulness may not be doubted merely because it may be claimed (by the party affected by the depositions made by that witness), that there exists contrary to the deposition made a previous statement of the same witness, that runs contrary to the depositions thus made."
47. Therefore, we are not in a position to accept either that 'X' did not recognise the assailant or that she did not suffer the occurrence as narrated during her examination-in-chief. Clearly, she made a contrary statement during her cross-examination. It is of no worth and no reliance may be placed on the same as she was never confronted with her previous statement recorded during her examination-in-chief.
48. To the extent, 'A' (P.W.-3) denied having accompanied 'X' at the time of occurrence, that statement if believed only lends further credence to the prosecution story inasmuch as no material has emerged to doubt the occurrence. It would have been another case if 'A' had narrated a different version of the occurrence during her examination-in-chief.
49. Then, the defence version that the occurrence may have been caused by a fall suffered on crop stubble is only an unsubstantiated possibility. In absence of any evidence existing on record that may give rise to a reason for such possibility to arise, we cannot treat that as a reasonable doubt in the prosecution story. Merely because the doctor may have stated that the injuries proved by her may have been caused if the victim 'X' had suffered a fall on crop stubble, it may never be acknowledged that therefore a reasonable doubt exists that the occurrence may have been caused by a fall suffered on crop stubble. For such reasonable doubt to arise, there must exist material evidence of the 'X' having suffered a fall on crop stubble in a manner as may have resulted in the injuries noted.
50. For the reasons noted above, we find no good ground to interfere with the order of conviction offered by the learned trial Court. The same is therefore, maintained. However, against the punishment awarded of life imprisonment, no special reason has been recorded and no accentuating circumstance exists. We therefore modify the sentence to the sentence already undergone by the appellant. Appellant is in jail. He may be released forthwith subject to him being not wanted in any other case and subject to compliance of Section 437-A Cr.P.C..
51. The fine imposed Rs. 30,000/- is enhanced to Rs. 50,000/-. Fine shall be deposited by the appellant within two months of his release. In case of default of payment of fine to further undergo imprisonment of one year. The amount of fine so deposited by the appellant shall be paid to the victim.
52. The appeal stands partly allowed, as above.
53. Let the trial Court record be returned to the learned court below alongwith a copy of this order, forthwith.
54. A copy of this order may also be transmitted to the jail authorities concerned for compliance.
Order Date :- 02.05.2025
Faraz/Abhilash
(Vikram D. Chauhan, J.) (S. D. Singh, J.)
