2025:HHC:16348 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 61 of 2009 Reserved on: 23.04.2025 Date of Decision: 28.05.2025 Sanjay Pantri ...Appellant Versus State of H.P. ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 For the Appellant : Mr. N.S. Chandel, Senior Advocate, with Mr. Sidharth, Advocate. For the Respondent/State : Mr. Lokender Kutlehria, Additional Advocate General. Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 17.02.2009, passed by learned Additional Sessions Judge, (Fast Track Court), Shimla, H.P. (learned Trial Court), vide which the appellant (accused before the learned Trial Court) was convicted of the commission of an offence punishable under Section 326 of Indian Penal Code (IPC) and was sentenced to undergo rigorous imprisonment for three years, pay a fine of 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2025:HHC:16348 ₹50,000/- and in default of payment of fine to undergo further rigorous imprisonment for one year. ₹ 25,000/- was ordered to be paid to the victim as compensation out of the fine, so realised. (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 appeal are that the police presented a challan against the accused and the other persons for the commission of an offence punishable under Section 307 read with Section 34 of the IPC. It was asserted that the police received information from DDU Hospital, Shimla, that Sushil Kumar was brought in an injured condition after a quarrel at Tutikandi. SI Chaman Lal (PW15), ASI Kulwant Singh, HC Rajesh Kumar, and Constable Tikkam Dass were sent to verify the correctness of the information. An entry (Ex.PW12/A) was recorded in the police station regarding their departure. SI Chaman Lal filed an application (Ex.PW15/A) to seek the opinion of the Medical Officer regarding the fitness of the injured to make the statement. The Medical Officer certified that the injured was not fit to make the statement. Amit Nanda (PW13) made a statement (Ex.PW13/A) that he was present in his petrol pump on 11.09.2006 at about 6.00 p.m. Sanjay Panthri 3 2025:HHC:16348 (accused) called him and told him that he and Gaje Singh wanted to meet him in connection with some work. Gaje Singh was posted as a Naib Court in Court No. IV. The informant knew Gaje Singh and Sanjay Panthri before the incident. The informant told Sanjay Panthri that he had received a supply of petrol at the petrol pump, and he would meet them at Fagli. However, some time was spent at the petrol pump, and the informant could not visit Fagli as promised. Accused Sanjay Panthri and Gaje Singh visited the informant’s petrol pump at 8.00 p.m. An Interview of Gaje Singh’s brother-in-law was scheduled, and Gaje Singh wanted the informant’s help in connection with the interview. The informant said that it was quite late and that he would talk to someone regarding the interview. All the persons boarded the vehicle bearing registration No. HP-51A-5500. They purchased beer from the liquor vendor at Tutikandi at about 8.30 p.m. and consumed it. They had an altercation with the salesman over the rate of the beer. Sushil Thakur (PW14) and Arun Thakur (PW1) also visited the liquor vend. The informant and Arun Thakur were standing near the counter. Accused Sanjay Panthri, Gaje Singh and Sushil Thakur were standing at a distance of 7-8 feet. Sanjay Panthri and Sushil Thakur had an argument at about 9.15 p.m. 4 2025:HHC:16348 Sushil Thakur told Sanjay Panthri not to talk nonsense about his brother. Sanjay Panthri and Sushil Thakur had a scuffle. Sanjay Panthri picked up a beer bottle, broke it by hitting the railing with it and inflicted an injury on the stomach of Sushil Thakur. Informant Arun Thakur and accused Gaje Singh tried to rescue Sushil Thakur. Sushil Thakur caught his stomach and shouted for help. Gaje Singh and Arun took the injured to the hospital. The statement was sent to the police station where FIR (Ex.PW10/A) was registered. SI Chaman Lal (PW15) conducted the investigation. He prepared the site plan (Ex.PW15/C). The photographs of the spot (Ex.PW9/A to Ex. PW9/E) were taken. Pieces of broken bottle and the bloodstained soil were seized vide memos (Ex.PW13/B and Ex.PW13/C). These were put in separate parcels, and each parcel was sealed with seal impression ‘A’. Dr. Ravinder Mokta (PW8) conducted the medical examination of the injured. He found the injuries on the stomach of Sushil Thakur. The injuries were dangerous to life and grievous. They could have been caused by a sharp-edged weapon. He issued the MLC (Ex.PW8/A). He referred the injured to IGMC, Shimla, for further treatment. Dr Kailash Chander (PW7) treated Sushil in the hospital. In his opinion, the injuries were grievous and 5 2025:HHC:16348 dangerous to life. He issued the case summary (Ex.PW7/A). The case property was sent to FSL, and the result of analysis (Ex.PW11/A) was issued, in which it was mentioned that the shirt of Sushil Thakur and the bloodstained soil contained the human blood of group B. Statements of remaining witnesses were recorded as per their versions, and after the completion of the investigation, the challan was prepared and presented before the learned Chief Judicial Magistrate First Class, who committed it for trial to the learned Sessions Judge, Shimla. Learned Sessions Judge assigned the case to the learned Additional Sessions Judge, Fast Track Court, Shimla (learned Trial Court) for trial. 3. The learned Trial Court charged the accused with the commission of an offence punishable under Section 307 read with Section 34 of the IPC, to which the accused pleaded not guilty and claimed to be tried. 4. The prosecution examined 15 witnesses to prove its case. Arun Thakur (PW1) is an eyewitness to the incident. Bal Krishan (PW2) reached the spot after hearing about the incident and carried the injured to the Hospital. HC Tulsi Dass (PW3) was posted as MHC with whom the case property was deposited. Constable Mohinder Singh (PW4) accompanied the injured to the 6 2025:HHC:16348 Hospital. HC Prakash Chand (PW5) was working as an MHC who handed over the parcels to Constable Param Dev (PW6) with a direction to carry them to FSL Junga. Dr. Kailash Chander (PW7) treated the injured at IGMC, Shimla. Dr. Ravinder Mokta (PW8) conducted the initial examination of the victim. HHC Santosh Kumar (PW9) took the photographs. SI Satish Chander (PW10) signed the FIR. Inspector K.D. Sharma (PW11) was posted as the SHO who prepared the challan. Constable Sanjeev Kumar (PW12) proved the entries in the Daily Diary. Amit Nanda (PW13) is the informant. Sushil Thakur (PW14) is the victim. SI Chaman Lal (PW15) conducted the investigation. 5. The accused, in his statement recorded under Section 313 of CrPC., stated that he had visited the liquor vend with the co-accused. He admitted that Sushil Thakur, Arun Thakur and Bal Krishan came to the liquor vend to purchase liquor. He denied the rest of the prosecution's case. He stated that witnesses deposed against him falsely. He claimed that he was innocent and was falsely implicated. The statement of Dr. Hans Raj Rahi (DW1) was recorded in defence. 6. The learned Trial Court held that the testimony of the informant was corroborated by the statements of injured Sushil 7 2025:HHC:16348 Thakur and the report of the Medical Officer Dr. Ravinder Mokta (PW8). Arun Thakur (PW1) and Bal Krishan (PW2) also supported the prosecution's case. There was nothing in their testimonies to doubt the prosecution's case. Minor contradictions in the statements of the prosecution witnesses were not sufficient to discard them. The involvement of Gaje Singh and Dinesh Sharma was not proved, but that could not discard the prosecution's case. The incident occurred all of a sudden without any pre-meditation. The injured had sustained grievous injury with a sharp-edged weapon. Hence, the prosecution had proved its case beyond a reasonable doubt against Sanjay Panthri for the commission of offences punishable under Section 326 of the IPC and he was convicted and sentenced as aforesaid. 7. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused has filed the present appeal, asserting that the learned Trial Court erred in convicting and sentencing him. The eyewitnesses did not support the prosecution's case. There was no light on the spot. The surface was uneven, and stones were protruding. The injured was intoxicated, and he sustained injuries by way of a fall. Only the injured implicated the accused, and other persons did not name 8 2025:HHC:16348 the accused as the person who had caused injuries to the injured. The duty Constable had recorded the statement of the injured, which was duly signed by him. However, the statement was not brought on record. This was the earliest version of the incident, and an adverse inference has to be drawn against the prosecution for withholding the statement. The injured stated that the accused, Gaje Singh and Harshu alias Dinesh, had caught hold of him from his arm. However, the accused, Gaje Singh and Harshu alias Dinesh, were acquitted by the learned Trial Court. If part of the statement was found to be false, the rest of it could not have been accepted as correct. The OPD Slip prepared by the Causality Medical Officer mentioned that the injuries were caused accidentally. This evidence was discarded by the learned Trial Court. Dr Kailash Chander (PW7) admitted in his cross- examination that injuries could have been caused by way of a fall. This evidence made the prosecution’s version doubtful. Therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. 8. I have heard Mr. N.S. Chandel learned Senior Counsel, assisted by Mr. Sidharth, learned counsel for the 9 2025:HHC:16348 appellant/accused and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent/State. 9. Mr. N.S. Chandel, learned Senior Counsel for the appellant/accused, submitted that the learned Trial Court erred in convicting and sentencing the accused. The testimony of the injured was disbelieved by the learned Trial Court regarding the role played by accused, Gaje Singh and Dinesh; his testimony could not have been used to convict the accused. The testimonies of other witnesses did not inspire confidence. There was no light on the place of the incident. The injured was heavily intoxicated, and the possibility of the injured sustaining the injuries by way of a fall could not be ruled out. This is also corroborated by the OPD slip, in which the cause of injuries was mentioned as an accident. Learned Trial Court erred in rejecting this document. Therefore, he prayed that the present appeal 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 learned Trial Court had rightly appreciated the evidence. It was not stated in the FIR that the accused, Gaje Singh and Dinesh, had caught hold of the injured. Therefore, it was an improvement and was 10 2025:HHC:16348 rightly discarded by the learned Trial Court. The testimony of the injured was corroborated by the testimonies of other witnesses and the medical evidence. Learned Trial Court had rightly accepted the same. Therefore, it was prayed that the present appeal be dismissed. 11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 12. Injured Sushil Thakur (PW14) stated that he, Arun Thakur and Bal Krishan went to the Tutikandi liquor vend. Accused Gaje Singh, Sanjay Panthri and Dinesh were standing near the vend. Amit Nanda was also present with them. He (Sushil Thakur) asked Sanjay Panthri to tell his brother to talk to him. A hot exchange occurred between him and Sanjay Panthri. Sushil Thakur purchased a beer bottle and proceeded towards his car. He went to the side to urinate. The accused Gaje Singh and Harshu alias Dinesh caught hold of him by his arm. Accused Sanjay Panthri struck the beer bottle against the iron bench, broke it and inflicted a blow on his stomach. He sustained an injury. He was taken to the hospital. He was provided first aid in Ripon Hospital and was treated at IGMC, Shimla. He stated in his cross-examination that he started consuming liquor at 7.00 p.m. 11 2025:HHC:16348 The car was parked near the vending machine. Bal Krishan was standing near the car. Arun Thakur was standing near the counter of the liquor vend. Bal Krishan was standing at a distance of 3 feet. The incident was witnessed by Bal Krishan, but he did not try to save him. He corrected to say that Bal Krishan came to save him, but he was pushed. He had not told the police about this fact. However, he had told the police that he had gone to urinate. He denied that he was heavily drunk, and he fell. He did not tell anything to the police at Ripon Hospital. He also did not tell anything to his brother anything on the way. He denied that he had made a false statement to save the accused. 13. It was submitted that the testimony of this witness, that the accused, Gaje Singh and Dinesh, had caught hold of him from his arm, was rejected by the learned Trial Court. Therefore, the testimony of this witness could not have been used to convict the accused, Sanjay Panthri. This submission is not acceptable. This submission proceeds on the basis that if part of the testimony of the witness is incorrect, the whole of the testimony has to be rejected. It was laid down by the Hon’ble Supreme Court in Arvind Kumar v. State of Rajasthan, (2022) 16 SCC 732: 2021 SCC OnLine SC 1099, that the testimony of a witness cannot be 12 2025:HHC:16348 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 at page 754: - “Falsus in uno, falsus in omnibus 50. The principle that when a witness deposes falsehood, the evidence in its entirety has to be eschewed may not have strict application to the criminal jurisprudence in our country. The principle governing sifting the chaff from the grain has to be applied. However, when the evidence is inseparable and such an attempt would either be impossible or would make the evidence unacceptable, the natural consequence would be one of avoidance. The said principle has not assumed the status of law but continues only as a rule of caution. One has to see the nature of the discrepancy in a given case. When the discrepancies are very material shaking the very credibility of the witness leading to a conclusion in the mind of the court that it is neither possible to separate it nor to rely upon, it is for the said court to either accept or reject. 51. The said principle of law has been dealt with by this Court in Anand Ramachandra Chougule v. Sidarai Laxman Chougala [Anand Ramachandra Chougule v. Sidarai Laxman Chougala, (2019) 8 SCC 50 : (2019) 3 SCC (Cri) 309], which states thus : (SCC pp. 53-54, paras 9-13) “9. We have considered the respective submissions and perused the materials on record. The relationship between parties and the existence of a land dispute regarding which a civil suit was also pending are undisputed facts. The fact that a verbal duel followed by a scuffle took place between the parties culminating in injuries is a concurrent finding of fact by two courts. The fact that the accused also lodged an FIR with regard to the same occurrence stands established by the evidence of PWs 19 and 22, the investigating officers, 13 2025:HHC:16348 who have admitted that the respondent-accused had also lodged BRPS Cr. No. 79/02 — marked Ext. D-10, which was not investigated by them. Similarly, PW 11, the police constable, deposed that two of the accused were admitted to District Hospital, Belgaum and that he was posted on watch duty. The occurrence is of 7-6- 2002 and respondents Accused 1 and 2 were discharged on 11-6-2002. Their injury report has not been brought on record by the prosecution and no explanation has been furnished in that regard. 10. The burden lies on the prosecution to prove the allegations beyond all reasonable doubt. In contradistinction to the same, the accused has only to create a doubt about the prosecution case and the probability of its defence. An accused is not required to establish or prove his defence beyond all reasonable doubt, unlike the prosecution. If the accused takes a defence, which is not improbable and appears likely, there is material in support of such defence, the accused is not required to prove anything further. The benefit of the doubt must follow unless the prosecution is able to prove its case beyond all reasonable doubt. 11. The fact that a defence may not have been taken by an accused under Section 313CrPC again cannot absolve the prosecution from proving its case beyond all reasonable doubt. If there are materials which the prosecution is unable to answer, the weakness in the defence taken cannot become the strength of the prosecution to claim that in the circumstances it was not required to prove anything. In Sunil Kundu v. State of Jharkhand [Sunil Kundu v. State of Jharkhand, (2013) 4 SCC 422 : (2013) 2 SCC (Cri) 427], this Court observed : (SCC pp. 433-34, para 28) ‘28. … When the prosecution is not able to prove its case beyond reasonable doubt it cannot take advantage of the fact that the accused have not been able to probabilise their defence. It is well settled that the prosecution must stand or fall on its own feet. It cannot draw support from the weakness of 14 2025:HHC:16348 the case of the accused if it has not proved its case beyond reasonable doubt.’ 12. The fact that an FIR was lodged by the accused with regard to the same occurrence, the failure of the police to explain why it was not investigated, coupled with the admitted fact that the accused were also admitted in the hospital for treatment with regard to injuries sustained in the same occurrence, but the injury report was not brought on record and suppressed by the prosecution, creates sufficient doubts which the prosecution has been unable to answer. 13. We find it difficult to concur with the submission on behalf of the appellants that the failure of the prosecution to investigate the FIR lodged by the accused with regard to the same occurrence or to place their injury reports on record was merely a defective investigation. We are of the considered opinion that the failure of the prosecution to act fairly and place all relevant materials with regard to the occurrence before the court enabling it to take a just and fair decision has caused serious prejudice to them. A fair criminal trial encompasses a fair investigation at the pre-trial stage, a fair trial where the prosecution does not conceal anything from the court and discharges its obligations in accordance with law impartially to facilitate a just and proper decision by the court in the larger interest of justice concluding with fairness in sentencing also.” 14. This was reiterated in Arun v. State of M.P., 2025 SCC OnLine SC 668 wherein it was observed: 16. As the maxim ‘Falsus in uno, falsus in omnibus’ (false in one thing, false in everything) is not part of Indian law and jurisprudence and is, at best, a rule of caution, the entire evidence of these witnesses need not be discarded because some of their statements are proved to be factually incorrect. However, their depositions would have to be viewed with care and caution before they are accepted and acted upon. 15 2025:HHC:16348 15. Therefore, the testimony of the victim could not have been rejected on the ground that part of the statement was discarded by the learned Trial Court. 16. His testimony is duly corroborated by Arun Thakur (PW1). He stated that Sushil Thakur met him on 11.09.2006 at about 6.30-7.00 p.m. near the bus stand. He went to a wine shop with Sushil in his car bearing registration No.HP51-2378. They purchased a beer bottle and a quarter of liquor from the liquor vend. They consumed the liquor at the bus stand. He, Bal Krishan and Sushil went to the wine shop to bring more liquor. Amit Nanda, Gaje Singh, Sanjay Panthri and Harish were present at the liquor shop. Amit Nanda was talking to the salesman of the vend. Sanjay and Sushil exchanged hot words. He heard the cries and found that Sushil had been hit with a glass bottle in the stomach. The bottle blow was given by the accused Sanjay Panthri. Accused Gaje Singh and Harshu had caught hold of Sushil by his arm. He carried the injured Sushil to Ripon Hospital, from where he was referred to IGMC, Shimla. 17. He stated in his cross-examination by the learned defence counsel that he and Sushil Thakur had consumed the beer and the alcohol for 30-45 minutes. Liquor was purchased by 16 2025:HHC:16348 Sushil on both occasions. Amit Nanda was standing near the counter. The accused was standing at some distance. He admitted that there was a lot of open and uneven space in front of the liquor vend. The stones of various sizes were protruding in that place. They remained at the liquor vend for about 5-10 minutes. Sanjay Panthri did not complain that he was charged more. He denied that Sushil was lying on the ground. He volunteered to say that Sushil had got his hand on his stomach. He heard the cries of Sushil, and thereafter he went to him. He denied that Sushil was carrying the beer bottle. He fell and sustained injuries. Bal Krishan met them at 8.00 p.m. when they were going to the liquor vend for the second time. 18. The statement of this witness corroborates the statement of the injured in material particulars. It was suggested to him that the injured had fallen in a state of intoxication, but he denied the suggestion. A denied suggestion does not amount to any proof, and no advantage can be derived from the suggestion made to this witness. 19. It was submitted that he reached the spot after hearing the cries, and, therefore, it was not possible for him to see the actual infliction of the injuries. This submission is not 17 2025:HHC:16348 acceptable. He categorically stated in the examination-in-chief that he had seen Sanjay Panthri and Sushil exchanging hot blows, which means that his attention was drawn towards them earlier. He also stated that the bottle blow was given by the accused Sanjay Panthri. Therefore, the submission that he had not witnessed the incident is not acceptable. He only stated in the cross-examination that he went near the injured after hearing the cries. This is expected because he had no justification for approaching the injured without any reason. Therefore, the part of the cross-examination that he approached the injured after hearing the cries will not make his testimony in the examination-in-chief doubtful. 20. He was recalled for further cross-examination on 12.08.2008. He stated that he had not stated before the police that the accused and Amit Nanda were exchanging hot words with the salesman of the liquor vend about the rate list. He was confronted with portions A to A1 of Ex.DC where it was so recorded. However, no advantage can be derived from this confrontation because the Investigating Officer was not asked about portions A to A1 of Ex. DC. Proviso to Section 162 of Cr.P.C. 18 2025:HHC:16348 permits the use of the statement recorded by the police to contradict a witness. It reads: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872) and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. 21. Thus, it is apparent that the defence can use the statement to contradict a witness if the statement is proved. It was laid down by the Hon’ble Bombay High Court about a century ago in Emperor vs. Vithu Balu Kharat (1924) 26 Bom. L.R. 965 that the previous statement has to be proved before it can be used. It was observed: “The words "if duly proved" in my opinion, clearly show that the record of the statement cannot be admitted in evidence straightaway but that the officer before whom the statement was made should ordinarily be examined as to any alleged statement or omitted statement that is relied upon by the accused for the purpose of contradicting the witness; and the provisions of Section 67 of the Indian Evidence Act apply to this case, as well as to any other similar ease. Of course, I do not mean to say that, if the particular police officer who recorded the statement is not available, other means of proving the statement may not be availed of, e.g., evidence that the 19 2025:HHC:16348 statement is in the handwriting of that particular officer.” 22. 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.” 23. 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 20 2025:HHC:16348 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 be used, Hence, his evidence that when he turned back, he saw the accused Badaruddin lowering, the gun from the chest is to be taken as his correct version. 14. The learned defence counsel has attempted to persuade us not to rely on the evidence of this witness on the ground that his evidence before the trial Court is contradicted by his previous statement made before the police. However, in view of the decisions made in the said cases we have been persuaded irresistibly to hold that the correct procedure to be followed which would be in conformity with S. 145 of the Evidence Act to contradict the evidence given by the prosecution witness at the trial with a statement made by him before the police during the investigation will be to draw the attention of the witness to that part of the contradictory statement which he made before the police, and questioned him whether he did, in 21 2025:HHC:16348 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 above, the above procedure was not followed while cross-examining the witness to his previous statements, and, therefore, we have no alternative but to accept the statement given by this witness before the trial Court that he saw the accused Badaruddin lowering the gun from his chest to be his correct version.” 24. 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 22 2025:HHC:16348 denies it, the statement is to be proved by the Investigating Officer. It was observed at page 290: - “24… As far as contradictions put by the defence are concerned, we would like to say that the defence Counsel did not put the contradictions in the manner in which it ought to have been put. By putting suggestions to the witness and the witness denying the same will not amount to putting contradiction to the witness. The contradiction has to be put to the witness as contemplated under Section 145 of the Evidence Act. If a contradiction is put to the witness and it is denied by him, then his attention has to be drawn to the statement made by such witness before the Police or any other previous statement and he must be given a reasonable opportunity to explain as to why such contradiction appears and he may give any answer if the statement made by him is shown to him and if he confronted with such a statement and thereafter the said contradiction must be proved through the Investigation Officer. Then only it amounts to putting the contradiction to the witness and getting it proved through the Investigation Officer.” 25. The Calcutta High Court took a similar view in Anjan Ganguly v. State of West Bengal, 2013 SCC OnLine Cal 22948: (2013) 2 Cal LJ 144: (2013) 3 Cal LT 193: (2013) 128 AIC 546: (2014) 2 RCR (Cri) 970: (2013) 3 DMC 760 and held at page 151: - “21. It was held in State of Karnataka v. Bhaskar Kushali Kothakar, reported as (2004) 7 SCC 487 that if any statement of the witness is contrary to the previous statement recorded under Section 161, Cr.P.C. or suffers from omission of certain material particulars, then the previous statement can be proved by examining the Investigating Officer who had recorded the same. Thus, there is no doubt that for proving the previous statement Investigating Officer ought to be examined, and the 23 2025:HHC:16348 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 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. 24 2025:HHC:16348 26. Let us first understand what is proper procedure. A witness may have stated in the statement under Section 161, Cr.P.C. that ‘X murdered Y’. In Court witness state ‘Z murdered Y’. This is a contradiction. Defence Counsel or Court and even prosecution if the witness is declared hostile having resiled from previous statement, is to be confronted to bring contradiction on record. The attention of the witness must be drawn to the previous statement or statement under Section 161, Cr.P.C. where it was stated that ‘X murdered Y’. Since Section 145 of the Indian Evidence Act uses the word being proved, therefore, in the course of examination of the witness, previous statement or statement under Section 161, Cr.P.C. will not be exhibited but shall be assigned a mark, and the portion contradicted will be specified. The trial Court in the event of contradiction has to record as under. 27. The attention of the witness has been drawn to portions A to A of statement marked as 1, and confronted with the portion where it is recorded that ‘X murdered Y’. In this manner by way of confrontation contradiction is brought on record. Later, when the Investigating Officer is examined, the prosecution or defence may prove the statement, after the Investigating Officer testifies that the statement assigned mark was correctly recorded by him at that stage statement will be exhibited by the Court. Then contradiction will be proved by the Investigating Officer by stating that the witness had informed or told him that ‘X murdered Y’ and he had correctly recorded this fact. 28. Now a reference to the explanation to Section 162, Cr.P.C. which says that an omission to state a fact or circumstance may amount to contradiction. Say for instance if a witness omits to state in Court that ‘X murdered Y’, what he had stated in a statement under Section 161, Cr.P.C. will be material? 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 25 2025:HHC:16348 so far defence of ‘W is concerned. At that stage also attention of the witness will 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.)” 26. 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 26 2025:HHC:16348 contradiction, the procedure provided in the proviso to sub-Section (1) of Section 162 must be followed for contradicting witnesses in the cross-examination. 8. As stated in the proviso to sub-Section (1) of section 162, the witness has to be contradicted in the manner provided under Section 145 of the Evidence Act. Section 145 reads thus: “145. Cross-examination as to previous statements in writing.—A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.” The Section operates in two parts. The first part provides that a witness can be cross-examined as to his previous statements made in writing without such writing being shown to him. Thus, for example, a witness can be cross-examined by asking whether his prior statement exists. The second part is regarding contradicting a witness. While 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 27 2025:HHC:16348 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. 9. If a former statement of the witness is inconsistent with any part of his evidence given before the Court, it can be used to impeach the credit of the witness in accordance with clause (3) of Section 155 of the Evidence Act, which reads thus: “155. Impeaching credit of witness. — The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him— (1) ….…………………………………… (2) ……………………………………… 28 2025:HHC:16348 (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.” It must be noted here that every contradiction or omission is not a ground to discredit the witness or to disbelieve his/her testimony. A minor or trifle omission or contradiction brought on record is not sufficient to disbelieve the witness's version. Only when there is a material contradiction or omission can the Court disbelieve the witness's version either fully or partially. What is a material contradiction or omission depending upon the facts of each case? Whether an omission is a contradiction also depends on the facts of each individual case. 10. We are tempted to quote what is held in a landmark decision of this Court in the case of Tahsildar Singh v. State of U.P.1959 Supp (2) SCR 875 Paragraph 13 of the said decision reads thus: “13. The learned counsel's first argument is based upon the words “in the manner provided by Section 145 of the Indian Evidence Act, 1872” found in Section 162 of the Code of Criminal Procedure. Section 145 of the Evidence Act, it is said, empowers the accused to put all relevant questions to a witness before his attention is called to those parts of the writing with a view to contradict him. In support of this contention, reliance is placed upon the judgment of this Court in Shyam Singh v. State of Punjab [(1952) 1 SCC 514: 1952 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 29 2025:HHC:16348 statement. In such a case all that is necessary is to look to the former statement of which no further proof is necessary because of the admission that it was made.” It is unnecessary to refer to other cases wherein a similar procedure is suggested for putting questions under Section 145 of the Indian Evidence Act, for the said decision of this Court and similar decisions were not considering the procedure in a case where the statement in writing was intended to be used for contradiction under Section 162 of the Code of Criminal Procedure. Section 145 of the Evidence Act is in two parts: the first part enables the accused to cross-examine a witness as to a previous statement made by him in writing or reduced to writing without such writing being shown to him; the second part deals with a situation where the cross-examination assumes the shape of contradiction: in other words, both parts deal with cross-examination; the first part with cross-examination other than by way of contradiction, and the second with cross-examination by way of contradiction only. The procedure prescribed is that, if it is intended to contradict a witness by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to Section 162 of the Code of Criminal Procedure only enables the accused to make use of such a statement to contradict a witness in the manner provided by Section 145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the 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 30 2025:HHC:16348 part of the statement made before the police which contradicts his statement in the witness box. If he admits his previous statement, no further proof is necessary; if he does not admit it, the practice generally followed is to admit it subject to proof by the police officer. On the other hand, the procedure suggested by the learned counsel may be illustrated thus: If the witness is asked “Did you say before the police officer that you saw a gas light?” and he answers “yes”, then the statement which does not contain such recital is put to him as a contradiction. This procedure involves two fallacies: one is it enables the accused to elicit by a process of cross-examination what the witness stated before the police officer. If a police officer did not make a record of a witness's statement, his entire statement could not be used for any purpose, whereas if a police officer recorded a few sentences, by this process of cross-examination, the witness's oral statement could be brought on record. This procedure, therefore, contravenes the express provision of Section 162 of the Code. The second fallacy is that by the illustration given by the learned counsel for the appellants, there is no self-contradiction of the primary statement made in the witness box, for the witness has yet not made on the stand any assertion at all which can serve as the basis. The contradiction, under the section, should be between what a witness asserted in the witness box and what he stated before the police officer, and not between what he said he had stated before the police officer and what he actually made before him. In such a case the question could not be put at all: only questions to 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 31 2025:HHC:16348 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.” 27. He further stated that he came to know that Sushil Thakur had sustained injuries only when he came in front of him with his hands on his stomach. This part of the statement will also not help the accused. He categorically stated that he had seen the accused inflicting a blow with a bottle on Sushil Thakur’s stomach. Hence, the mere fact that he had not noticed the injuries earlier will not dilute his testimony regarding the infliction of injury by the accused on the injured. He stated that the police Constable had recorded the statement of the injured before the arrival of Dr Banerjee, which was signed by him. His statement that the police Constable had recorded the statement of the injured cannot be believed because the Medical Officer had certified that the injured was not fit to make the statement. Therefore, no person could have recorded the statement of the injured. 28. He was recalled for further cross-examination after one year of the initial statement, and much time had lapsed between the initial statement and the recall. Therefore, the testimony of the witness recorded in the cross-examination after 32 2025:HHC:16348 he was recalled cannot be read as a gospel truth and cannot be used to discard the earlier statement made by him. 29. Bal Krishan (PW2) stated that the informant party consumed beer in the car. They went to a liquor vend to purchase beer bottles. Sushil and Arun Thakur got down the car. He parked the car on the roadside. When he came out of the car, he found that Sushil Thakur had sustained injuries to his stomach. Sanjay Panthri, Gaje Singh and Amit Nanda were present. Sushil Thakur was taken to the hospital in the car of Amit Nanda. He stated in his cross-examination that all of them took beer and not alcohol. Sushil had consumed only one bottle of beer. Sushil was heavily intoxicated. He admitted that the people present on the spot were sympathizing with Sushil Thakur, and they were telling him that he would be taken to the hospital. He denied that Sanjay Panthri helped in transporting the injured to the hospital and helped in the arrangement of the blood. He denied that he made a false statement. 30. The testimony of this witness corroborates the prosecution's version regarding the injuries sustained by Sushil Thakur. 33 2025:HHC:16348 31. Amit Nanda/informant (PW13) stated that Gaje Singh and the accused went to the liquor vend. They purchased five beer bottles. Hot exchanges took place between them and the salesman of the liquor vend because he was charging more. Sushil Thakur, Arun Thakur and Bal Krishan came to the spot. Bal Krishan remained in the car. Sushil Thakur and Arun Thakur came to the liquor vend. They were already drunk. The accused was standing at some distance. He heard the cries of Sushil Thakur, who was saying “Bachao Bachao. He did not see anyone hitting Sushil Thakur. He was permitted to be cross-examined. He admitted in his cross-examination that Arun Thakur was standing near the counter of the liquor vend. He admitted that Sushil Thakur had sustained injuries on his stomach. He admitted that the intestines of Sushil came out of his body. He stated that his statement had already been recorded by the police, and he was asked simply to sign it. A Constable recorded the statement of Sushil Thakur and informed the police station. He had signed the statement (Ex.PW13/A) after reading it. 32. The testimony of this witness is not believable. He admitted that he had signed the statement after reading it. It was specifically mentioned in the statement that the accused, Sanjay 34 2025:HHC:16348 Panthri, had inflicted a blow using a broken bottle. If this statement was read by this witness before signing it, he would not have signed it, if it was untrue, therefore, the statement made by this witness to the contrary in the Court is not acceptable because of the previous statement recorded by the Investigating Officer. Hence, the part of this statement will not make the prosecution's case suspect. 33. Dr. Ravinder Mokta (PW8) conducted the medical examination of the injured. He found fresh bleeding from the left side of the lower abdomen, large intestine portion was protruding out of the wound. The bleeding was controlled, and the patient was sent to IGMC, Shimla. The injury could be caused by an empty/broken glass bottle. He stated in his cross- examination that the patient had two injuries. However, he did not mention whether the injuries were horizontal or vertical. He did not mention the length, breadth and width of the injury. He volunteered to say that it was not possible because the bleeding was coming out, and his priority was to stop the bleeding. The injuries could have been caused by way of a fall on a sharp object/surface. 35 2025:HHC:16348 34. His testimony corroborates the prosecution's version that Sushil Thakur had sustained injuries which could have been caused by using the broken bottle. 35. Dr. Kailash Chander (PW7) treated the patient at IGMC, Shimla. He also stated that injuries could be caused if the person is hit with a broken glass bottle. He stated in his cross- examination that the emergency medical slip/OPD slip was prepared by the Casualty Medical Officer. He admitted that the Casualty Medical Officer had mentioned that a complaint of accidental penetrating injury to the abdomen was made. He admitted that there was no mention of a beer bottle in the record. He volunteered to say that the gin bottle was mentioned, and both were glass bottles. The patient and attendant had given the history of being hit with a gin bottle. The injured was conscious till his operation. He was responding. Sushil Thakur had an injury on the scalp. He denied that injuries could not be caused by a broken glass bottle. He volunteered to say that if a person falls on a broken glass bottle, injuries could be caused. 36. The testimonies of the Medical Officers corroborate the version of the prosecution that injuries were caused by a 36 2025:HHC:16348 broken glass bottle. There is nothing in their cross-examination to show that they were making false statements. 37. It was submitted that Dr Kailash Chander admitted that injuries could be caused if a person falls on a broken glass bottle, and this falsifies the prosecution's case. This submission is not acceptable. This admission suggests an alternative hypothesis, which is not sufficient to reject the testimonies of the prosecution witnesses. 38. Much was made out of the fact that the cause of injury was mentioned as an accidental protrusion in the emergency casualty slip (Ex. DA). First of all, it is not known who has given this history. The accused were accompanying the injured, and the possibility of any of the accused giving a different version to save himself cannot be ruled out. Further, the history mentioned in the emergency casualty slip is not substantive evidence and can be used to contradict its author. This procedure was not adopted, and the statement is being sought to be proved as a substantive piece of evidence, and without the cross-examination of the person who had given this history; it will fall within the definition of written hearsay and is inadmissible. Therefore, no advantage can be derived from this history. 37 2025:HHC:16348 39. It was further mentioned that in the history given to the Medical Officer, the injury by a gin bottle was mentioned, which falsifies the prosecution's case. This submission is not acceptable. The Medical Officer stated that a gin and a beer bottle are both glass bottles. Further, the injured was certified to be incapable of making the statement by Dr Ravinder Mokta, and it is highly doubtful that he would have mentioned the history to the Medical Officer at IGMC, Shimla. Therefore, the history given to the Medical Officer cannot be attributed to the injured and cannot be used to discard the prosecution's version. 40. There is nothing in the cross-examination of the prosecution witnesses to show that they had any motive to depose falsely against the accused. The injured categorically stated about the infliction of injury by the accused. His testimony was corroborated by Arun Thakur and Bal Krishan. The denial by the informant/Amit Nanda is not sufficient to discard the prosecution's version, as noticed above. Therefore, the learned Trial Court had rightly relied upon the testimony of the injured to hold that the accused had inflicted a blow on the stomach of the injured by a broken piece of bottle. The nature of the injury was stated to be grievous, and, the accused was rightly convicted of 38 2025:HHC:16348 the commission of an offence punishable under Section 326 of the IPC. 41. The learned Trial Court sentenced the accused to undergo rigorous imprisonment for three years. The accused used a broken piece of a beer bottle to inflict injury on the stomach, which is a vital part of the body. The weapon used and the part of the body where it was directed show the intention of the accused to cause serious injury to the injured. Keeping in view the nature of the injury and the part of the body where the injury was caused, the sentence of three years is not excessive. 42. The learned Trial Court had imposed a fine of ₹50,000/- and directed that ₹ 25,000/- be paid as compensation to the injured. The injured was to be compensated for the injuries caused to him. Keeping in view this consideration, the fine of ₹50,000/- cannot be said to be excessive. 43. No other point was urged. 44. Hence, the judgment and order passed by the learned Trial Court are fully sustainable and no interference is required with them. 45. Thus, the present appeal fails, and the same is dismissed. 39 2025:HHC:16348 46. Registry is directed to send down the records alongwith copy of the judgment to the learned Trial Court. (Rakesh Kainthla) Judge 28th May, 2025 (Rupsi)