# Jagat Pal & Ors. (In Jail) v. The State of U.P

- **Citation:** Criminal Appeal No. 612 of 1996
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-28
- **Case number:** Criminal Appeal No. 612 of 1996
- **Bench:** Pankaj Mithal, Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagat-pal-ors-in-jail-v-the-state-of-u-p-46408
- **Pages:** 14

## Headnote

A.G.A.

Delay of 9 hours in lodging the FIR and
convincing and reasonable explanation
has not been furnished- Testimony of fact
witnesses not in consonance with the FIR
version- Where the witness has changed
his version and has narrated a new set of
facts which neither finds mention in FIR
nor in his statement recorded by I.O under
section 161 CrPC and which changes the
nature and character of his evidence, the
evidence
becomes
significantly
contradictory
and
such
improvement
shatters his credibility as witness- It
amounts to material contradiction and
improvement and such evidence is not
acceptable and should be discarded -
Contradiction between the medical with
the ocular evidence- The prosecution has
not been able to show and prove the
source of light at the time of incident in
which the two fact witnesses saw the
accused persons, nor has been able to
discover any incriminatory article- No
reason or motive has been alleged nor
there
was
any enmity
between the
deceased and accused persons leading to
such criminal act.

Held- Delay in lodging FIR- Where the
witnesses are unreliable, the delay in lodging
the FIR without any explanation becomes fatal
for the case of the prosecution.

Evidence Law- Indian Evidence Act, 1872-
Section 155- Credibility of witness- Material
contradictions
and
improvements
in
the
testimony of a witness renders his evidence
untrustworthy and unreliable and should be
discarded.

Absence of corroborative evidence- Where
the medical evidence contradicts the ocular
version and there is absence of corroboration of
the ocular evidence, the presence of the
prosecution witnesses becomes doubtful.

Evidence law-Indian Evidence Act, 1872 -
Section 9- Identification of the accused-
Early hours of winter morning and no recovery
of
source
of
light
(torches)
makes
the
identification of the accused doubtful.

Evidence Law -Indian Evidence Act, 1872-
Section 8 - Absence of motive- The
prosecution has failed to bring out any motive
and on the contrary there was pre-existing
bitterness which caused the false implication of
the appellants.

The learned trial court has ignored the
infirmities and shortcomings in the evidence and
prosecution case. The impugned judgement is
perverse, illegal and not sustainable under law
and is liable to be set aside.
( Para 28, 29,31, 35)

Criminal Appeal allowed (E-3)

List
of
case
cited:-
3-5 All. Jagat Pal & Ors. Vs. The State of U.P.
299

## Text

_Characters 0–39,945 of 48,110. This is a partial read: ask again with offset=39945 for what follows._

298 INDIAN LAW REPORTS ALLAHABAD SERIES

(v) Copy of the judgment be sent
to Sessions Judge, Hardoi to ensure
compliance under intimation to this Court.

(vi) The Office is directed to
provide
the
copy
of
the
judgment
separately to all the three appellant
promptly.

(vii) The office is further directed
to enter the judgment in compliance
register maintained for the purpose on the
Court.
----------
(2020)03-05ILR A298
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.05.2020

BEFORE
THE HON'BLE PANKAJ MITHAL, J.
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 612 of 1996

Jagat Pal & Ors. ...Appellants(In Jail)
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Sri R.K. Saxena, Sri Sukhveer[A.C.]

Counsel for the Opposite Party:
A.G.A.

Delay of 9 hours in lodging the FIR and
convincing and reasonable explanation
has not been furnished- Testimony of fact
witnesses not in consonance with the FIR
version- Where the witness has changed
his version and has narrated a new set of
facts which neither finds mention in FIR
nor in his statement recorded by I.O under
section 161 CrPC and which changes the
nature and character of his evidence, the
evidence
becomes
significantly
contradictory
and
such
improvement
shatters his credibility as witness- It
amounts to material contradiction and
improvement and such evidence is not
acceptable and should be discarded -
Contradiction between the medical with
the ocular evidence- The prosecution has
not been able to show and prove the
source of light at the time of incident in
which the two fact witnesses saw the
accused persons, nor has been able to
discover any incriminatory article- No
reason or motive has been alleged nor
there
was
any enmity
between the
deceased and accused persons leading to
such criminal act.

Held- Delay in lodging FIR- Where the
witnesses are unreliable, the delay in lodging
the FIR without any explanation becomes fatal
for the case of the prosecution.

Evidence Law- Indian Evidence Act, 1872-
Section 155- Credibility of witness- Material
contradictions
and
improvements
in
the
testimony of a witness renders his evidence
untrustworthy and unreliable and should be
discarded.

Absence of corroborative evidence- Where
the medical evidence contradicts the ocular
version and there is absence of corroboration of
the ocular evidence, the presence of the
prosecution witnesses becomes doubtful.

Evidence law-Indian Evidence Act, 1872 -
Section 9- Identification of the accused-
Early hours of winter morning and no recovery
of
source
of
light
(torches)
makes
the
identification of the accused doubtful.

Evidence Law -Indian Evidence Act, 1872-
Section 8 - Absence of motive- The
prosecution has failed to bring out any motive
and on the contrary there was pre-existing
bitterness which caused the false implication of
the appellants.

The learned trial court has ignored the
infirmities and shortcomings in the evidence and
prosecution case. The impugned judgement is
perverse, illegal and not sustainable under law
and is liable to be set aside.
( Para 28, 29,31, 35)

Criminal Appeal allowed (E-3)

List
of
case
cited:-
3-5 All. Jagat Pal & Ors. Vs. The State of U.P.
299
1. St. of Raj. Vs. Smt Kalki, AIR 1981 SC 1390

2. Alamgir Vs. St. of NCT, Delhi, (2003) 1 SCC
21

3. Rudrappa Ramappa Jainpur Vs. St. of Kar.,
(2004) 7 SCC 422

4. Bihari Nath Goswami Vs. Shiv Kumar Singh
(2004) 9 SCC 186

5. Syed Ibrahim Vs. St. of A.P., AIR 2006 SC
2908;

6. Arumugam Vs. State, AIR 2009 SC 3

7. St. Rep. by Inspr. of Police, T.N, (2008) 15
SCC 440

8. St. of Raj. Vs. Rajendra Singh, (2009) 11 SCC
106

9. St. Rep. by Inspr. of Police Vs. Sarvanan, AIR
2009 SC 152

10. Mahendra Pratap Singh Vs. St. of UP, (2009)
11 SCC 334

11. Sunil Kumar Shambhu Dayal Gupta Vs. St.
of Maha., 2011 (72) ACC 699 (SC)

12. Rohtash Vs. St. of Har., (2012) 6 SCC 589

13. Tomaso Bruno Vs. St. of U.P, (2015) 7 SCC
178

14. Rambraksh Vs. St. of Chhatisgarh, AIR 2016
SC 2381

(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.

1. Heard Sri Sukhveer Singh, Amicus
Curiae, for the appellants and Ms. Meena,
learned AGA for the State.

2. This criminal appeal has been filed
against the impugned judgment dated
23.3.1996
passed
by
3rd
Additional
Sessions Judge, Kanpur Nagar in ST No.
369 of 1992 arising out of Case Crime No.
16 of 1992 under Sections 302, 323, 506
IPC, Police Station Maharajpur, District
Kanpur Nagar, by which the accusedappellants namely Jagat Pal, Jhabboo @
Somnath and Prithvi Pal have been
convicted for the offence under Sections
302/34 and 323/34 IPC and have been
sentenced to undergo life imprisonment for
the offence under Section 302 IPC and
three months imprisonment under Section
323 IPC with Rs. 500/- fine each and in
default additional imprisonment of one
month.

3. Vide order dated 22.11.2019 of this
Court, criminal appeal has been abated in
respect of appellant no.3 namely Prithvi
Pal on account of his death report.

4. Brief facts of this case is that the
informant Putti Lal gave a written report on
9.1.1992 at 13:15 PM in respect of criminal
incident dated 9.1.1992 at about 4:00 AM
in mid night. Ramdhani, nephew of
informant, was sleeping on the tube-well at
the time of incident and next day in the
morning, for a long time when he did not
return, his mother asked the informant to
go and see why Ramdhani has not come till
now from the tube-well. At about 10:00
AM in the morning when the informant
was going to the tube-well, on the way he
heard the sound of groaning and crying
from the tube-well of Ramlal Kushwaha.
He went there and found there Ramlal
Kushwaha lying on his cot and was
groaning. He had incurred bleeding injuries
on his mouth. He asked about it then he
told that in the mid night at about 4:00 AM
Jagat Pal Singh son of Babu Singh Thakur,
Jhabboo @ Somnath son of Ved Prakash
and Prithvi Pal son of Munni Lal Pasi of
the village were assaulting Ramdhani on
his
tube-well.
Hearing
his
cry,
he
300 INDIAN LAW REPORTS ALLAHABAD SERIES
challenged and cried out 'who is there' and
'I am coming'. Hearing his voice all the
three
accused
persons
after
killing
Ramdhani came to him and threatened him
that if he told about it to anyone they would
kill him. He said that they have committed
a wrong thing by killing Ramdhani
whereupon they started beating him by fist
and hockey stick. The informant then went
to the tube-well of Ramdhani and found
that Ramdhani was lying dead below the
cot. He told about it in the village and
Bihari, Ramesh, Sanwari Lal, Rajkumar
and other persons came on the tube-well
and at the same time Ramlal s/o Murali,
Ram Avatar and Brij Bihari also came and
they said that they had also seen the
incident. The informant Putti Lal (PW-1)
along with Ramlal (PW-2) and Sanwari
(PW-3) went to the police station and gave
a written report. The offence was registered
against the three accused persons namely
Jagat Pal, Jhabboo @ Somnath and Prithvi
Pal for the offence under Sections 302, 323
and 506 IPC and chik was prepared. The
injured Ramlal was sent to hospital and he
was medically examined on the injury letter
of the police. The police went to the spot
and the dead body was taken into
possession and sealed. Inquest report was
prepared, papers necessary for post-mortem
were also prepared and the dead body was
handed over to the police personnel to take
the same to the District Hospital for postmortem, where the post-mortem of the dead
body was conducted.

5. The Investigating Officer went to
the spot and recorded the statement of the
witness, prepared spot map and after
obtaining the post-mortem report and
finding sufficient evidence against the
accused persons, submitted charge sheet
against them under the aforesaid sections.
Charges were framed against the accused
persons for the offence under Sections
302/34, 323/34 and 506 IPC. The accused
persons denied the charge and claimed trial.
Nine witnesses were examined by the
prosecution in support of prosecution case.
The statements of the accused persons were
recorded under Section 313 CrPC. The
accused persons stated that they were
falsely implicated and false evidence was
given against them out of enmity. Accused
Somnath has stated that his mausi (sister of
his mother) was killed in which an
application was given against witness
Sanwari on which direction was given to
register the case. But, instead of registering
a case against him, he was made a witness
and the case was registered against Jagatpal
and Prithwipal in which they were
acquitted. Accused Prithvi Pal has stated
that at the time of incident he was in Pali
road and he had no idea about the incident
and after attachment he appeared. The
accused Jagat Pal Singh had stated that
Ramlal and Sanwari Lal have enmity with
him and Sanwari Lal had given evidence
against him earlier also. They have enmity
with him because of party rivalry. The
nephew of Ramlal namely Rajendra Singh
was killed in which Jagat Pal Singh was
made an accused and he was acquitted, this
is also a reason for enmity. At the time of
incident, he was not in the village and on
being informed that he has been involved in
the case, he surrendered in the Court. The
accused persons have, however, not given
any evidence in defence. On the basis of
evidence on record and after hearing both
the sides, the learned trial court passed the
impugned
judgment
convicting
and
sentencing the appellants for the offence
under section 302/34 and 323/34 IPC.

6. Aggrieved by the impugned
judgment, the appellants have filed this
appeal challenging the impugned judgment
3-5 All. Jagat Pal & Ors. Vs. The State of U.P.
301
on the ground that the conviction and
sentence is against weight of evidence on
record and is bad in law. The sentence
awarded is too severe and the judgment is
liable to be set aside and they are entitled
for acquittal.

7. Before proceeding to examine the
legality of the impugned judgment, it is
necessary to go through the prosecution
evidence. PW-1 Putti Lal (informant) has
stated that the deceased Ramdhani was his
nephew, who used to sleep on the tube-well
to look after the same. About 15-16 months
ago Ramdhani as usual went to his tubewell in the evening and on the next day
morning for a long time he did not come
back. His mother asked him to go to the
tube-well and to see why Ramdhani has not
come back as yet. The informant at about
10:00 AM in the morning was going to
tube-well and when he reached near the
tube-well of Ramlal, he heard the voice of
groaning and crying. He went there and
saw that Ramlal was lying on his cot and
was crying with pain. He had incurred
bleeding injury on his mouth. On being
asked by him, Ramlal said that in the mid
night at about 4:00 AM accused Jagat Pal,
Jhabboo @ Somnath and Prithvi Pal of the
village were assaulting Ramdhani and
hearing him crying Ramlal challenged that
who is there and he is coming. The accused
persons after killing Ramdhani came to him
and threatened him that if he told about it to
anyone he will be killed. Ramlal said that
they had committed a wrong thing by
killing Ramdhani, whereupon, all the three
accused persons assaulted him by hockey
stick and fist. Then, PW-1 went to tubewell of Ramdhani and found him lying
dead below his cot and his neck was cut in
the left side. PW-1 went to the village and
said about the incident to the villagers.
Ramesh, Bihari, Rajkumar, Banwari Lal
and Ramlal son of Murli and other persons
of the village came there. He got a report
scribed by Man Singh and after hearing and
understanding the same he put his thumb
impression on the report and gave it to the
police. He also put his thumb impression
on the memo of blood stained and plain
earth. In the very beginning of the crossexamination, he had stated that he had not
seen the incident and he lodged the FIR on
the basis of what Ramlal had stated to him.

8. PW-2 Ramlal has stated that the
incident took place in January, 1992. He
was sleeping on his tube-well in the night
near his tube-well, there is a tube-well of
Ramdhani also where Ramdhani was
sleeping. In the early morning at 4:00 AM,
he heard Ramdhani crying that he is being
killed whereupon he went to the tube-well
of Ramdhani with torch and stick and saw
that accused Prithvi Pal and Jagat Pal
having an axe in their hand and Somnath
having a hockey like stick were cutting
Ramdhani. He said that they had done a
very wrong thing by killing Ramdhani
whereupon the accused persons said that he
will be put to the same condition and
started beating him and he sustained
injuries. After sunrise informant Putti Lal
came there to whom he informed about the
incident. His son took him to the police
station from where he was sent to hospital
where he was medically examined and he
was admitted in the hospital.

9. PW-3 Sanwari has stated that at
4:00-4:30 AM
in
the
midnight,
on
8/9.01.1992 he was going to sell vegetables
with his younger brother Brij Bihari Lal
and Ram Avtar. They saw that accused
Jagat pal, Prithvi Pal and Jhabboo were
coming from the side of tube-well of
Ramdhani through chak road with Jagat Pal
having a tabbal, Prithvi Pal having an axe
302 INDIAN LAW REPORTS ALLAHABAD SERIES
and Jhabboo having a hockey in their hand.
In the light of torch, he saw that their cloths
were stained with blood. He came back at
about 11:30 AM after selling his vegetables
and then he came to know about the
incident by his wife.

10. PW-4 Dr. Y.K. Sharma was
posted as Orthopaedic Surgeon in the
U.H.M.,
Hospital,
Kanpur
Nagar
on
10.1.1992 when he conducted post-mortem
of the dead body of deceased Ramdhani,
who was sent by police station Maharajpur
through constable Man Singh and Shiv
Sharan along-with necessary papers in a
sealed conditions. He conducted postmortem at 11:45 am on 10.1.1992. The
deceased was average built, his mouth and
eyes half opened, rigour-mortis was present
in his body and stomach was greenish with
little swelling. Post death staining was
found on his back, hip and back of the
thigh. On examination, following ante
mortem injuries were found on the body of
the deceased-

(1). Incised wound 8 cm x 2 cm x
bone deep 1 cm below the right ear ending
down ward upto lower part of neck.

(2). Incised wound 11 cm x 5 cm
on the upper part of left lateral side of the
neck to front portion of jaw and second
vertebrae of neck. Veins and arteries of
neck were found cut. Second vertebrae was
also found cut.

(3) Incised wound 1 cm x 1⁄4 cm
muscle deep on the right back shoulder in
scapular region.

(4) Abrasion 8 cm x 2 cm in the
frontal region of left thigh and knee.

In
the
internal
examination,
membrance was found blank. Both right
and left lounge were found pale. Both
chambers of heart were empty. Gal-bladder
and both the kidneys were found pale. Semi
digested food was found in the small
intestine, gasses and digested food was
found in the large intestine. In the opinion
of the doctor the cause of death was due to
shock and haemorrhage as a result of anti
mortem injuries. The doctor has stated that
the injuries found on the body of the
deceased were possibly caused in the night
at about 4:00 PM on 8.1.1992 and might
have been caused by axe.

11. PW-5 Head Constable Krishna
Murari has prepared chik and has entry the
same in the GD.

12. PW-6 Dr. A.P. Verma had
examined the injury of Ramlal on 1:45 PM,
who was aged about 72 years who was
brought by the home guard Uday Veer
Singh
of
police
station
Maharajpur.
Following injuries were found on his body-

(1). Contused abrasion 9 cm x 4
cm over the left parietal region just above
the outer margin of left eye brow & 7 cm
above from the left mastool process,
abrasion 1.5 cm x 05 cm reddish.

(2). Contusion 5 cm x 2 cm just
below the right eye, bluish red.

(3). Contusion 3.5 cm x 3 cm on
right side face over the maxilla bone 0.5 cm
below the injury no.2, reddish.

(4). Contusion 2.5 cm x 1 cm over
the middle of upper lip 1 cm below the
nose, bluish.

(5). Contusion 2.5 cm x 2 cm over
the nose 1 cm below the root of nose. Injury
kept under observation.

(6). Abrasion 2 cm x 1 cm left
side back 9 cm below the lower border of
scapula bone.

According to doctor, the injured
was complaining pain on his shoulder,
chest and back but there was no visible
injury. All the injuries were simple in
3-5 All. Jagat Pal & Ors. Vs. The State of U.P.
303
nature, injury no.6 was caused by rubbing
on hard surface and the remaining injuries
might have been caused by blunt object.
Injury no.5 was kept under observation and
x-ray was advised and injury was half day
old and it might have been caused on early
morning at 4:00 AM on 9.1.1992 by
hockey stick and fist.

13. PW-7 S.I. Pramod Kumar has
prepared inquest report and other papers
and has also proved memo of blood stained
and plain earth taken from spot.

14. PW-8 Constable Man Singh has
taken the dead body for post-mortem and
he had stated that because it was night,
therefore, on the next day in the morning
the papers and the sealed dead body was
given to the concerned.

15. PW-9 SI Vidya Sagar Tripathi has
investigated the offence. He had stated that
SI P.K. Singh prepared the inquest report.
He recorded statement of injured Ramlal,
informant Putti Lal, Brij Bihari, Sanwari
Lal, Ram Avtar and Ramlal son of Murli
and on the identification of the witnesses he
prepared site plan. The statement of Head
Constable
Krishna
Murari
was
also
recorded after recording of other statements
and obtaining the post-mortem report, he
submitted charge-sheet against the accused
persons.

16. It has been submitted by the
learned counsel/ Amicus Curiae to the
accused-appellants that the FIR is grossly
delayed for which there is no convincing
explanation and the explanation given by
prosecution is apparently fabricated. We
find that the incident took place on
8/9.1.1992 in the midnight at 4 AM and the
report has been lodged at about 1.15 PM in
the noon and the police station is situated at
the distance of 5 km. Thus, the FIR has
been lodged after about a delay of 9 hours.
The reason for this delay has been
mentioned in the written report itself.
Accordingly, when the deceased did not
return in the morning, at 10 AM, the
informant went to see him and on the way,
Ramlal, in his tube well, said to him about
the incident. He was injured at that time.
Then he went to the tube-well of Ramdhani
where he found him dead. He went back to
his village and said about the incident to
the villagers including Sanwari who has
been examined as PW-3. They all went to
the tube-well and meanwhile Ramlal s/o
Murali, Brijbihari and Ramautar also came
and said that they had seen the incident. It
is pertinent to mention that none of these
three have been produced in evidence. It is
commonly known that village people rise
early in the morning and go to field for
their natural call etc. Therefore, it looks
unusual that nobody could know about the
incident till the informant reached there in
search of the deceased, more particularly
when PW-2 was injured and was crying
with pain. He is aged about more than 70
years and it is also unnatural that nobody
came to search him nor his cry captured the
attention of anyone till the informant
reached there. In medical, 6 injuries have
been found on his body, five contusion and
one abrasion and they are all simple in
nature and at least the injuries could not
prevent him for next 6 hours to go out and
alarm somebody. It was a village and field
around and the villagers rise early and
leave bed. Therefore, the story that
informant could know only when he
reached there does not suit to reasoning. It
appears probable that the specific mention
of 10 AM time in FIR when the informant
reached there might have been an attempt
to cover the delay. It looks more probable
because of the fact that PW-2 has stated
304 INDIAN LAW REPORTS ALLAHABAD SERIES
that informant reached there at 8 AM.
Then, what made him to pass time and
when he informed witness Sanwari and
villagers, he lodged the FIR. The delay in
FIR becomes significant depending upon
the trustworthiness and credibility of the
fact witnesses. If the witnesses are
trustworthy and create confidence in the
mind of court, the delay hardly impacts the
credibility
of
prosecution
version,
otherwise, the delay may become fatal and
the whole version may become highly
suspicious.

17. It has been also submitted by the
learned Amicus Curiae that the fact
witnesses examined by the prosecution are
not trustworthy and reliable as they have
stated during trial contrary to the FIR
version and contradictory to their statement
recorded by IO under section 161 CrPC.
They are not eyewitnesses and have made
huge improvement in their on oath
statement during trial. FIR has been lodged
and the whole prosecution has proceeded
on the basis of what PW-2 said and PW-3
who is his son have inimical relation with
the accused persons and PW-3 had also
given statement against them in another
criminal case.

18. From the reading of FIR, it is
clear that whatever Ramlal said to the
informant, on that basis FIR was lodged
and the informant himself did not see the
incident. FIR does not disclose that Ramlal
said that he saw the accused persons
assaulting the deceased. He heard the cry of
deceased and he only said who is there and
said that he is coming. It has been further
provided in the FIR that on his saying so,
the accused persons came to his tube-well
and threatened and assaulted him by fist
and hockey. PW-1 Puttilal informant has
narrated same thing in his examination-inchief. It goes to establish that the informant
is not eyewitness and he lodged the FIR on
the basis of what was said to him by
Ramlal. During cross-examination, he has
admitted this fact that he did not see the
incident and he lodged FIR on the basis of
what Ramlal told him.

19. The question is what will be
impact if the testimony of fact witnesses is
not in consonance with the FIR version and
there
is
apparent
improvement/contradiction as compared to
the statement under section 161 CrPC? The
law in respect of the statement given under
161 CrPC and improvement made therein
by the witness during trial has been
discussed by the Supreme Court in several
decisions. In State of Rajasthan v Smt
Kalki, AIR 1981 SC 1390, while dealing
with this issue, this Court observed as
under:

"In the depositions of witnesses
there are always normal discrepancies,
however honest and truthful they may be.
These discrepancies are due to normal
errors of observation, normal errors of
memory due to lapse of time, due to mental
disposition such as shock and horror at the
time of the occurrence, and the like.
Material discrepancies are those which are
not normal, and not expected of a normal
person."

20. The above observation goes to
show that the credibility of witnesses is not
shattered
on
account
of
normal
discrepancy. But, if the same is not normal,
it will certainly impact the credibility. In
fact, to assess what would be normal
discrepancy and what would impact the
credibility, there cannot be any hard and
fast formula and it depends upon so many
factors. Thus, in Alamgir v State of NCT,
3-5 All. Jagat Pal & Ors. Vs. The State of U.P.
305
Delhi, (2003) 1 SCC 21, it has been
observed that if a relevant fact is not
mentioned in the statement of the witness
recorded under section 161 CrPC, but the
same has been stated by the witness before
the court as witness, then that would not be
a ground for rejecting the evidence of the
witness if his evidence is otherwise credit
worthy and acceptable. Omission on the
part of the police officer would not take
away nature and character of the evidence.
Alamgir (supra) is in respect of a relevant
fact not mentioned in the statement under
section 161 or any omission committed by
IO and where the statement made during
trial by the witness is found to be credit
worthy. It implies that when the testimony
is not credit worthy or the witness has
changed substantially the very nature of
allegation, the same would not remain
normal and would impact the credibility. In
Rudrappa Ramappa Jainpur v State of
Karnataka, (2004) 7 SCC 422, the Court
finding
that
the
witnesses
made
improvement and introduced new facts
during trial which was not stated to the IO
during investigation, remarked that the
court below was justified in according
acquittal to some of the accused persons. In
Bihari Nath Goswami v Shiv Kumar
Singh (2004) 9 SCC 186, the Court
examined the issue and held:

"Exaggerations per se do not
render the evidence brittle. But it can be
one of the factors to test credibility of the
prosecution version, when the entire
evidence is put in a crucible for being
tested on the touchstone of credibility."

21. It has been held in Syed Ibrahim
v State of AP, AIR 2006 SC 2908; and
Arumugam v State, AIR 2009 SC 331
that the courts have to label the category to
which a discrepancy belongs. While normal
discrepancies do not corrode the credibility
of a party's case, material discrepancies do
so. It has been clearly laid down in State
Represented by Inspector of Police,
Tamilnadu, (2008) 15 SCC 440 that, in
case, the complainant in the FIR or the
witness in his statement under section 161
CrPC, has not disclosed certain facts but
meets the prosecution case first time before
the court during trial, such version lacks
credence and is liable to be discarded.

22. In State of Rajasthan v Rajendra
Singh, (2009) 11 SCC 106, it has been
held that where the omission(s) amount to a
contradiction, creating a serious doubt
about the truthfulness of a witness and
other
witness
also
make
material
improvements before the court in order to
make the evidence acceptable, it cannot be
safe to rely upon such evidence. Similarly,
in State Represented by Inspector of
Police v Sarvanan, AIR 2009 SC 152, it
has been remarked that while appreciating
the evidence, the court has to take into
consideration
whether
the
contradictions/omissions had been of such
magnitude that they may materially affect
the
trial.
Minor
contradictions,
inconsistencies,
embellishments
or
improvements on trivial matters without
effecting the core of the prosecution case
should not be made a ground to reject the
evidence in its entirety. The Trial Court,
after going through the entire evidence,
must form an opinion about the credibility
of the witnesses and the appellate Court in
normal course would not be justified in
reviewing
the
same
again
without
justifiable reasons.

23. We also find that the Supreme
Court has remarked in Mahendra Prtap
Singh v State of UP, (2009) 11 SCC 334
that, as compared to the statement under
306 INDIAN LAW REPORTS ALLAHABAD SERIES
section 161 CrPC, where the discrepancies
in the evidence of eye-witnesses, if found
to be not minor in nature, may become a
ground for disbelieving and discrediting
their evidence. In such circumstances,
witnesses may not inspire confidence and if
their evidence is found to be in conflict and
contradiction with other evidence or with
the statement already recorded, in such a
case it cannot be held that prosecution
proved its case beyond reasonable doubt.

24. In Sunil Kumar Shambhu Dayal
Gupta Vs. State of Maharashtra, 2011
(72) ACC 699 (SC), the Court noted on
record that there had been a lot of
improvements and contradictions in his
statements. The witness deposed for the
first time in the court during the trial, that
when he went to examine the deceased, she
was found in an unkept room/store room
and that he was introduced to the deceased
as a Psychiatrist and that the deceased had
asked him whether he treated his wife in
the same way as she had been treated by
her husband. None of this was mentioned
in his statement recorded by the police. Nor
it had been recorded therein that the
deceased had told him that she was
harassed by the appellants and her
ornaments were taken away/worn by her
mother in law. More so, he had not stated
in his police statement that the deceased
was merely mentally disturbed and not
suffering from a gross psychological
problem. Nor had he stated therein that the
deceased had told him that she was not
having any faith in any of her family
members and she was deprived of their
love, affection and sympathy. It has been
also noted that the witness did not state in
his statement before the police that when he
went to see the appellants, they had asked
him
whether
he
had
brought
gold
ornaments or had come empty handed or
that he was told that the deceased would
not be allowed to live there and they would
make her condition even more miserable.
Such an improvement was made while
deposing in court and no explanation could
be furnished by him as to why such vital
facts were not stated by him at the time of
recording his statement under section 161
CrPC. Holding that such statements should
be discarded being major contradictions
and improvements, the Court laid down:

"Such
contradictions
in
his
statements cannot be held to be mere
explanations or elaborations of his version,
but
are
tantamount
to
material
contradictions or vital omissions. The
Rules of appreciation of evidence requires
that court should not draw conclusions by
picking up an isolated sentence of a witness
without adverting to the statement as a
whole. In such a fact- situation, it is not
safe to rely on his testimony for the simple
reason that he had made a lot of
improvements/embellishments
while
deposing in court and vital contradictions
exist with his earlier recorded statement.
Thus, no reliance can be placed on his
depositions to hold that appellants had illtreated the deceased or that appellant No.3
had taken away/worn her ornaments or
that she had been deprived of their love
and affection or that she was not suffering
from epilepsy etc."

25. The Supreme Court also found
that the prosecution witnesses who were
family members of the deceased, stated
new facts which were not earlier mentioned
either while lodging the FIR or in their
statements recorded under section 161 and
such allegations had been made for the first
time while making statements before the
court during trial. There were material
contradictions and improvements, which
3-5 All. Jagat Pal & Ors. Vs. The State of U.P.
307
were not mere elaborations of their
statements already made. Therefore, the
Court held:

"Thus, their statements in regard to
those allegations were liable to be discarded.
While deciding such a case, the Court has to
apply the aforesaid tests. Mere marginal
variations in the statements cannot be dubbed
as improvements as the same may be
elaborations of the statement made by the
witness earlier. The omissions which amount to
contradictions in material particulars i.e. go to
the root of the case/materially affect the trial or
core of the prosecution's case, render the
testimony of the witness liable to be
discredited."

26. In Rohtash v State of Haryana,
(2012) 6 SCC 589, there had been major
improvements/embellishments
in
the
prosecution case and demand of Rs.10,000/- by
the appellant does not find mention in the
statements under section 161 CrPC, the same
was held to be major improvement which
effected the prosecution version adversely. In
Tomaso Bruno Vs. State of Uttar Pradesh,
(2015) 7 SCC 178, the prosecution tried to
establish the case against the accused by
making improvements at various stages. The
version of PW-3 that he saw both the accused
hugging, kissing and cuddling each other and
that Francesco Montis was sitting on the other
side of the table appearing depressed was not
stated to the investigating officer when he
recorded his statement under section 161 CrPC.
Likewise, version of the witness that on the
fateful night, the second accused asked him 'not
to disturb till tomorrow morning' was also not
mentioned in his statement recorded by the
investigating officer under section 161 CrPC.
The Court held:

"If the PWs had failed to mention in
their statements u/s 161 CrPC about the
involvement of an accused, their subsequent
statement before court during trial regarding
involvement of that particular accused cannot
be relied upon. Prosecution cannot seek to
prove a fact during trial through a witness
which such witness had not stated to police
during investigation. The evidence of that
witness regarding the said improved fact is of
no significance.

27. In Rambraksh v State of
Chhatisgarh, AIR 2016 SC 2381, PW3
Dasmatiya Bai in her complaint as well as
her statement before the police has not told
that she witnessed the occurrence during
which both the accused assaulted her
husband with lathi and Danda. Only in her
testimony before the Court she claimed to
have witnessed the occurrence. Pointing
out that the High Court has rightly ignored
the improved part of her testimony and
placed no reliance on it, the Supreme Court
laid down that improvement made by
witness in his statement made in the Court
during trial than what was made to the IO
during investigation under section 161
cannot be relied upon.

28. On the basis of above discussion,
we are of the view that the improvement
made during trial by the witness which is
just
to
eloberate
and
explain
the
prosecution version and does not materially
alter the version is normal as it may take
place because of lapse of time, nervousness
and the ability of the witness to obsorve,
memorize and reproduce. If the witness is
trustworthy and credit worthy, the same
becomes insignificant. But, where the
witness has changed his version and has
narrated a new set of facts which neither
finds mention in FIR nor in his statement
recorded by IO under section 161 CrPC and
which changes the nature and character of
his
evidence,
the
evidence
becomes
308 INDIAN LAW REPORTS ALLAHABAD SERIES
significantly
contradictory
and
such
improvement shatters his credibility as
witness.
It
amounts
to
material
contradiction and improvement and such
evidence is not acceptable and should be
discarded.

29. In the light of above, the evidence
of PW-2 Ramlal is required to be
examined. There, he has given a distinct
version from what has been stated in FIR
and under the statement under section 161
CrPC by saying that on hearing the sound
of Ramdhani, he rushed and reached to the
tube well of deceased with his torch and
bamboo stick and saw the accused persons.
Accused Prithwipal and Jagatpal with axe
in their hands and Somnath with a hockey
were assaulting the deceased and cutting
him. On being challenged by Ramlal,
accused persons started beating him by
hockey, fist and shoes. In the crossexamination, he has stated that after beating
him, the accused persons dragged him to
his tube well, kept him there and went
away. His clothes were torn and there was
dragging mark on the surface. We find that
no such mark has been found by IO. The
doctor who examined the witness has found
6 injuries and he has accepted that two of
them might be old and 5 injuries may result
by falling on hard surface from face side.
The medical report does not disclose mark
of more than one such injuries which may
have occurred to the injured on account of
dragging on surface. There is only one
abrasion which renders the allegation of
dragging to a distance of 200 yards
improbable. To cover this, PW-2 has made
improvement in his statement during trial
by saying that the accused persons picked
him up from his shoulders and leg and
brought him to his tube-well. Moreover, no
such statement has been given to IO. On
the contrary, he has stated to the IO that on
hearing noise, the moment he reached to
field, accused persons were returning after
causing death of deceased. He has also not
stated to the IO that he was beaten by shoes
also. In fact, he has admitted that he gave
such statement for the first time in the
court. During cross-examination, he has
further stated that at the time of hearing
sound of 'bachao bachao,' he was doing
morning prayer. The witness has stated that
at the time of incident, there was no light in
the hut of deceased. The condition of the
witness is that he cannot see without
goggles as demonstrated in the court. No
torch was given by him to the IO nor the
same has been produced in evidence. He is
aged about 72 years at the time of incident.
It was month of January and naturally, it
must have been cold and foggy season. For
an old person like him, it is not natural that
he would rush and reach on the place of
occurrence from a distance of more than
two hundred yards. Had this witness
reached on spot and personally seen the
criminal incident, there was no reason why
he did not tell the same to the informant
and had he told the same to the informant,
there is no reason for the informant not to
bring this fact in the FIR. As such, we find
discrepancy/contradiction/deliberate
and
substantial improvement in the statement of
the witness which creates doubt with
regards to his credibility. We are of the
view that PW-2 is not reliable and
trustworthy and his testimony being not
reliable is liable to be discarded.

30. Coming to the statement of PW-3
Sanwari who happens to be son of PW-2
and his name also finds mention in the FIR.
He has clearly stated that he did not see the
murder of Ramdhani. He has stated a
circumstance only. He has stated that on
8/9.1.1992 in the early morning at about 44.30 AM, when he was going to sell
3-5 All. Jagat Pal & Ors. Vs. The State of U.P.
309
vegetables, he saw the accused persons
coming from the side of the tube well of
deceased
Ramdhani,
accused
Jagatpal
carrying tabbal, accused Prithwipal with
axe and Somnath carrying a hockey and in
the torch light, he saw blood stains on their
clothes. The statement aforesaid as stated
by PW-3 does not find mention in his
statement under section 161 CrPC recorded
by IO and when confronted, the witness has
stated that if the IO has not written so, he
might have been in collusion with the
accused person. He has stated that when he
came back from Kanpur at about 11.30
AM, he knew about the incident from his
wife. He has been also confronted with his
statement given to IO that when he reached
near the tube-well of deceased, they heard
Ramdhani crying and they saw that the
accused persons were assaulting him. He
has denied to this statement. Similarly, he
has been also confronted with his statement
given to IO that he and Ramlal s/o Murali
together took vegetables and were going to
Kanpur for selling the same but to this
statement again, the witness has denied.
Meaning thereby, this witness has not only
deposed additional thing what is in
contradiction of what was stated to the IO
but also he has denied to what he had stated
to IO. Clearly, the witness has made
substantial improvement and cannot be
relied.

31. It is important to note that PW-9
IO has stated that the informant had stated
that what Ramlal said to him on that basis
he lodged report. The IO has stated that
witness Ramlal did not state to him that he
saw the accused persons who were cutting
the deceased by axe, nor he said that
accused persons assaulted him by shoes,
nor he said that he was having torch and in
the light of torch he witnessed the incident.
The IO has said that Ramlal was not an
eyewitness of the incident. Similarly, he
has stated that PW-3 Sanwari did not state
to him that he saw the accused persons on
the way, nor stated that the clothes of
accused persons were blood stained nor he
stated that he was having torch and in the
light of torch he saw the accused persons.
The correctness of what has been stated by
the IO can be supported by one more
circumstance.