# Mayank Parasari v. State of U.P

- **Citation:** (2025) 2 ILRA 387
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-02-06
- **Case number:** Criminal Appeal No. 8466 of 2022
- **Bench:** Saumitra Dayal Singh, Dr. Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mayank-parasari-v-state-of-u-p-53145
- **Pages:** 19

## Headnote

Criminal Law - The Indian Evidence
Act,1872 - Sections 145 & 155 - Code of
Criminal Procedure - Section 162-Deceased
died of firearm injury - Sec 145 & 155 of the
Indian Evidence Act and Section 162 Cr.P.C.,
allow the party adversely affected by a
deposition made at a trial- to confront the
witness (making such deposition) with their
previous St.ment including that recorded u/s
161 Cr.P.C.- deposition of D.W.-1 cannot be
brushed aside-neither the prosecution could
bring out any contradiction in the testimony of
388 INDIAN LAW REPORTS ALLAHABAD SERIES
the said witness - also failed to discredit his
credibility- unable to reconcile the prosecution
story with the deposition of D.W.-1- he further
proved that the accused-appellant was not
present at the time and place of occurrence.

Appeal allowed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,811 of 65,224. This is a partial read: ask again with offset=39811 for what follows._

2 All. Mayank Parasari Vs. State of U.P.
387
stated that he has been falsely implicated
simply because one Suresh has lodged one
complaint against inspector Ram Charan,
P.S. Jatra wherein he was one of the
witnesses and therefore, the policeman was
having enmity against him and for this
reason the policeman has falsely implicated
him. This reflects that he has not claimed
any enmity against the informant or the
deceased or his family members who were
also witnesses of the incident. He has
further admitted that even his statement has
not been recorded in the alleged complaint.
No further detail of such alleged complaint
has come on record and therefore, this
defence that he has been falsely implicated
by the police moreso, when said inspector
Ram Charan is not associated with the
investigation of the present case is not
substantiated. During course of arguments,
learned Amicus Curiae Sri Tiwari has
family conceded that the Court has powers
to award punishment so awarded in the
present case with the aid of Section 460
CrPC.

26. We, therefore, are of the opinion
that there is no reason to differ with the
findings recorded by the Co-ordinate Bench
that there may be some minor and
ignorable discrepancy in the prosecution
case/evidence as pointed out by the learned
Amicus Curiae, however, there appears to
be no major, legal or actual error in the
appreciation of evidence by the trial Court,
which may prove fatal to the prosecution
case. The judgement has been upheld by
the Co-ordinate Bench and conviction of
the
appellant
Rameshwar
has
been
confirmed although because of his period
of incarceration he has been granted relief
to the sentence undergone. We find that in
the present case the appellant Rakshpal was
granted bail by this Court vide order dated
18.11.1983 and he is on bail since then.

27. Present appeal lacks merit and is
accordingly dismissed. The conviction of
surviving appellant Rakshpal is confirmed.

28. Since the surviving appellant
Rakshpal is on bail, his bail bonds are
cancelled and the sureties are discharged.

29. Lower court record be sent to the
concerned Court.

30. Let a copy of this order be
communicated
to
the
lower
Court
concerned for compliance.
----------
(2025) 2 ILRA 387
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.02.2025

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.
THE HON'BLE DR. GAUTAM CHOWDHARY, J.

Criminal Appeal No. 8466 of 2022

Mayank Parasari ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Pradeep Kumar

Counsel for the Respondent:
G.A.

Criminal Law - The Indian Evidence
Act,1872 - Sections 145 & 155 - Code of
Criminal Procedure - Section 162-Deceased
died of firearm injury - Sec 145 & 155 of the
Indian Evidence Act and Section 162 Cr.P.C.,
allow the party adversely affected by a
deposition made at a trial- to confront the
witness (making such deposition) with their
previous St.ment including that recorded u/s
161 Cr.P.C.- deposition of D.W.-1 cannot be
brushed aside-neither the prosecution could
bring out any contradiction in the testimony of
388 INDIAN LAW REPORTS ALLAHABAD SERIES
the said witness - also failed to discredit his
credibility- unable to reconcile the prosecution
story with the deposition of D.W.-1- he further
proved that the accused-appellant was not
present at the time and place of occurrence.

Appeal allowed. (E-9)

List of Cases cited:

1. Tara Singh Vs St. of U.P., (1951) SCC OnLine
SC 49

2. Rudder Vs St., 1956 SCC OnLine All 141

3. Inder Deo & anr. Vs State, (1958) SCC OnLine
All 175

4. Tahsildar Singh & anr. Vs St. of U.P., (1959)
SCC OnLine SC 17

5. St. of U.P. Vs Nahar Singh, (1998) 3 SCC 561

6. Rammi Vs St. of M.P., (1999) 8 SCC 649

7. Karan Singh Vs St. of M.P., (2003) 12 SCC 587

8. Munna Pandey Vs St. of Bihar, (2023) SCC
OnLine SC 1103

9. Birbal Nath Vs St. of Raj. & ors., (2023) SCC
OnLine SC 1396

10. Alauddin & ors. Vs St. of Assam & anr.,
(2024) SCC OnLine SC 760

11. Lavkush Vs St. of U.P., (2024) SCC OnLine
All 7674

(Delivered by Hon'ble Saumitra Dayal
Singh, J.
&
Hon'ble Dr. Gautam Chowdhary, J.)

1. The instant appeal has arisen from
the judgement and order dated 16.09.2022
passed by Shri Sanjeev Kumar Tiwari,
Special Judge SC/ST (P&A) Act, Rampur,
in Sessions Trial No. 84 of 2011, State
Versus Mayank Parasari whereby the
appellant has been convicted and sentenced
to undergo rigorous life imprison for the
offence under Section 302 IPC and to pay
fine Rs. 50,000/- and in default of payment
of
fine
to
further
undergo
simple
imprisonment of two years; to undergo
rigorous imprisonment of five years and to
pay fine Rs. 10,000/- for the offence under
Section 452 IPC and in default of payment
of fine to further undergo six months
further simple imprisonment. In Sessions
Trial 85 of 2011, State Versus Mayank
Parasari, the appellant has been convicted
and
sentenced
to
undergo
rigorous
imprisonment of three years and fine Rs.
5,000/- for the offence under Section 25(1)
Arms Act and in default of payment of fine
to further undergo simple imprisonment of
two months. The appellant has been
acquitted of the offence under Section 27
Arms Act, 1959.

2. According to the prosecution story
as narrated in the FIR lodged by Geeta
Devi (P.W.-1 at the trial), on 21.08.2010 at
about 6:00 PM, the deceased Navdurgesh
Mishra, his wife Pushpa Devi (P.W.-2 at
the trial) and his mother Geeta Devi (PW1) were sitting inside their house. Their
'Bataidar' Bhurey Singh Diwakar (D.W. 2
at the trial) was sitting outside their house.
Just then the accused-appellant Mayank - a
relative of Pushpa Devi entered that house
carrying our country made pistol. He
referred to the deceased, two earlier
instances when allegedly the deceased had
assaulted the accused - once during the
former's marriage celebration and another
just 10-15 days earlier. The accused also
proclaimed earlier, the deceased had been
saved, but now he would not spare him. At
this the accused drew his country made
pistol to the head of the deceased, little
above his ear and shot him from pointblank range. The deceased fell to the
2 All. Mayank Parasari Vs. State of U.P.
389
ground. The accused fled from the spot
with the weapon of assault. That later
occurrence
was
witnessed
by
Naval
Kishore Mishra, Ram Kishore Mishra,
Shree Pal Singh and other not named
persons (not examined at the trial) and
Bhurey Singh Diwakar (D.W.-2 at the
trial). Also, the FIR narrated a quarrel that
had taken place earlier, between the
accused and the deceased, at the latter's
marriage where the accused was beaten up
by the guests of the deceased for reason the
accused having fired a shot with a firearm.
The Tehrir was written by Naval Kishore
Mishra.
PW-2
affixed
her
thumb
impression to it. The Tehrir is dated
21.08.2010. It is Exhibit Ka-1. The FIR is
also dated 21.08.2010, lodged at 08.05
P.M. It is Exhibit Ka-2. On 21.08.2010
itself, the S.H.O. recovered plain and
blood-stained earth from the place of
occurrence. The recovery memo is Exhibit
Ka-21. The Panchayatnama was drawn on
21.08.2010 between 9.30 P.M. and 11.45
P.M. It is Exhibit Ka-5. On 22.08.2010, at
1.00 P.M., the dead body of the deceased
was subjected to autopsy by Dr. Parag
Agarwal (P.W.- 4 at the the trial). The
Autopsy Report records the following antemortem injuries:

"1. Lacerated wound of 3 cm x 3
cm on right side of skull just above the
right
ear
margins all
inverted
and
blackening and tattooing present.

2. Lacerated wound of 4 cm x 4
cm on top of skull arterially margins and
inverted wound about 7 cm above the right
eyes."

3. Also, the time of death was
recorded -"about within one day" and the
cause of death - "due to firearm injury or
ante-mortem causing coma". The Autopsy
Report is Exhibit Ka-5.

4. On 05.09.2010, the accused was
arrested on information received from an
informer. At that time a country made
pistol with two live bullets were also
recovered from his person. That memo of
search and recovery is Exhibit Ka-17. Also,
on 05.09.2010, the accused is claimed to
have led to the recovery of the empty
cartridge of the bullet used in the
occurrence, from a Eucalyptus cultivation
near a village pond, from under the shrubs
etc. That recovery memo is Exhibit Ka-16.
On those recoveries, another FIR was
lodged against the accused on 05.09.2010,
under section 25/27 of the Arms Act, 1959.
It is Exhibit Ka-21.

5. Upon completion of investigation,
the Investigating Officer submitted two
Charge-sheets
on
02.11.2010
and
10.10.2010. In the first of the two Chargesheet arising from the first FIR, amongst
others, Bhurey Singh Diwakar (D.W.-2)
was a witness listed by the prosecution.
However, he was got discharged at the
stage of trial. On that, the following two
charge were framed against the accused in
S.T. 84/2011:

"प्रर्मः- यह कि ददनािंि 21-8-2010
िो समय 6-00 बजे शाम बहद ग्राम अनवा
र्ाना शाहबाद, जजला रामपुर में वाददनी मिदमा
श्रीमती र्ीता देवी िे पुत्र नवदुर्ेश िो
आग्नेयास्त्र से फायर िरिे मृत्यु िाररत िरिे
हत्या िी और उसिे द्वारा अेापने ऐसा
अपराध किया जो धारा 302 िा०दिं०सिं० िे
अन्तर्थत दण्डनीय अपराध है एविं इस न्यायालय
िे सिंज्ञान में है।

द्ववतीयः- यह कि उपरोक्त ददनािंि,
समय व स्र्ान पर आप असियुक्त ने वाददनी
मुिदमा श्रीमती र्ीतादेवी िे घर मै उपहयत
390 INDIAN LAW REPORTS ALLAHABAD SERIES
िाररत िरने िी तैयार िरिे अनाधधिृत प्रवेश
िरिे र्ृह अयतचार किया जो धारा 452
िा०दिं०सिं० िे अन्तर्थत दण्डनीय अपराध है एविं
इस न्यायालय िे प्रसिंज्ञान में है।"

6. Also, the following charge was
framed against the accused in S.T. 85/2011:

"प्रर्मः- यह कि ददनािंि 05-09-2010
िो समय 1530 बजे स्र्ान रामपुर बस स्र्ेण्ड
र्ाना शाहबाद जजला रामपुर में पुसलस द्वारा
आपिो धर्रफ्तार किया र्या आपिी जामा
तलाशी पर आपिे िब्जे से एि अदद तमन्चा
देशी 315 बोर व 2 अदद िारतूस जजन्दा 315
बोर िे नाजायज बरामद हुये जजनिो रखने िा
आपिे पास लाइसेंस नह िं र्ा और इस प्रिार
आपने ऐसा अपराध किया जो धारा-25/27
आयुध अधधयनयम िे तहत दण्डनीय अपराध है
एविं इस न्यायालय िे सिंज्ञान में है।"

7. At the trial, Smt. Geeta Devi (P.W.-1)
who is the mother of the deceased and the first
informant offered ocular version of the
occurrence. In that, she first supported the FIR
allegation both as to the manner of the
occurrence being caused by the accusedappellant as also the fact that Bhurey Singh
Diwakar (D.W.-1) who is her Bataidar was
sitting outside their dwelling house and had
seen the appellant flee. She also stated that the
FIR was lodged on her dictation as written
down by Naval Kishore. Yet, the said scribe
was not examined.

8.
During
her
cross-examination,
against her original version that the
deceased was shot at by the accusedappellant while sitting next to him at pointblank
range,
she
made
inconsistent
statements as to whether the deceased was
shot at point-blank range and also if at the
time of the occurrence the accusedappellant was standing while the deceased
was sitting.

9. At the same time, as to the presence
of Bhurey Singh Diwakar (D.W.-1), she
maintained her stand as disclosed in the FIR
and as proved during her examination-inchief i.e. the said Bhurey Singh Diwakar
(D.W.-1) was sitting outside the dwelling
house of the accused-appellant. The accusedappellant was further described to have fled
from the place of occurrence. Also, as to
motive, she described the earlier occurrence
of quarrel between the deceased and the
accused-appellant at the time of the marriage
celebration of the deceased. In that, she
disclosed that the accused-appellant is the
cousin brother of her daughter-in-law, Pushpa
Devi (P.W.-2).

10. Then, Smt. Pushpa Devi (P.W.-2)
also first supported the FIR allegation and
narrated the occurrence as disclosed therein
and as proved by Smt. Geeta Devi (P.W.-1).
Further, she also established the presence of
Bhurey Singh Diwakar (D.W.-1) outside her
dwelling house, at the time of the occurrence.

11. During her cross-examination, she
admitted that her marriage had been
solemnised about 4 years ago. She also
narrated the incident that may have taken
place 10-15 days prior to the occurrence
wherein the deceased was described to have
beaten the accused-appellant. As to the actual
occurrence, she described that the accusedappellant was sitting next to the deceased and
that the accused-appellant had shot at the
deceased thus sitting next to him.

12. Then, Head Constable Brij Mohan
Rana was examined at the trial as P.W.-3.
He proved the registration of the FIR.
2 All. Mayank Parasari Vs. State of U.P.
391

13. Next, Dr. Parag Agrawal (P.W.-4)
was examined at the trial. He proved the
autopsy report including the ante-mortem
injuries and the cause of death. He
described the entry wound to have been
caused above right ear of the deceased and
the exit wound above line of the right
eyebrow. He also established that no
foreign object/projectile etc. was found
inside the body of the deceased.

14. Next, Shri Machal Singh (P.W.-5
at the trial) was examined. He was the SubInspector
who
recorded
the
Panchayatnama etc. He proved that he
received the information of the occurrence
at about 8:05 p.m. and that he reached the
place of occurrence at about half hour later.
Nothing significant emerged during that
cross-examination.

15. Next, Shri Mohan Lal (P.W.-6),
the S.H.O. In-Charge of Police Station
Shahabad was examined at the trial. He
was the Investigating Officer of the case.
He proved the recoveries and the various
steps of investigation. During his crossexamination, he admitted that he had made
due inspection of the room where the
occurrence is described to have taken place,
yet he did not recover any bullet.

16. Next, Shri Bhuwnesh Datt Sharma
(P.W.-7 at the trial) was examined. He
proved the recovery of firearm described to
have used in the occurrence. He reiterated
that the recovery of the cartridge was made
from an open place lying under a bush.

17. Thereafter, statement of the
accused was recorded under Section 313
Cr.P.C. He denied adverse circumstances
cited against him. Thereafter, the defence
evidence was recorded. Therein, Bhurey
Singh Diwakar was examined as D.W-1.
He stated that the deceased was addicted to
liquor and that on 21.8.2010 i.e. the date of
occurrence that the said witness was sitting
outside the dwelling house of the deceased.
He further described to have heard a gunshot from inside the house of the deceased.
He ran inside and found that the deceased
was lying in the courtyard holding the
country made firearm in his hand. He
further stated that Pushpa Devi (P.W.-2)
told him that the deceased had committed
suicide. Further, he specifically denied
having
made
any
statement
to
the
Investigating Officer under Section 161
Cr.P.C. that he had seen the accused
appellant enter the dwelling house of the
deceased and he further denied to make any
statement to the Investigating Officer that
he had seen the accused appellant flee from
the place of occurrence brandishing a
firearm. He specifically denied having seen
the accused appellant at any time on
21.8.2010. He reiterated that the deceased
was a drunkard and he used to indulge in
domestic quarrel and further that he
committed suicide.

18. Here, we have checked from the
record and it is critical to note that there
exists statement of the said Bhurey Singh
Diwakar (D.W.-1) recorded under Section
161 Cr.P.C. supporting the FIR story. He
was also listed as a prosecution witness, in
the charge-sheet submitted against the
accused appellant. However, apparently,
the prosecution got him discharged.

19. In such circumstances, upon being
offered for cross-examination, he stated
that the accused appellant used to visit the
deceased at his dwelling house being
relative of Smt. Pushpa Devi (P.W.-1), the
wife of the deceased. He further stated that
at the time of occurrence, he along with the
others were sitting outside the dwelling
392 INDIAN LAW REPORTS ALLAHABAD SERIES
house of the deceased. Also, he reiterated
that he had seen a fire-arm in the hand of
the deceased. He denied that his statement
was ever recorded by the police but then he
expressed some doubt with respect to the
same.

20. At that, the cross-examination of
the said witness was closed. No further
question was put to him and the said
witness was not confronted with his
previous statement recorded under Section
161 Cr.P.C.. His credibility and the
truthfulness of his account was not
impeached
by
the
prosecution
by
confronting him by such previous statement.
No part of his previous statement was marked
or otherwise read out or shown to him and no
question was asked of him to explain that
statement. Thereafter, the accused appellant
was examined as D.W.-2. He sought to prove
that he had lent about Rs. 45-46,000/- to the
deceased, in cash. Since the deceased was
reluctant to repay the amount, the relations
between the parties got spoiled. However, he
denied any prior occurrence of the nature
described by the prosecution i.e. of earlier
quarrels (one about four years ago at the time
of marriage of the deceased and other 10-15
days prior to the occurrence). Here, it may
also be noted that other than the oral say of
the P.W.-1 & P.W.-2, no evidence of any of
those two occurrences was led by the
prosecution through any independent witness.

21. In such circumstances, the learned
court below has found the prosecution case
proven on the strength of ocular evidence.
It has disbelieved the defence explanation.
Accordingly, the accused appellant has
been convicted and sentenced.

22. Submission of learned counsel for
the accused appellant is that more than
reasonable doubt exists in the prosecution
story. Those are not explained. The accused
appellant being right handed, he may not
have shot the deceased who was sitting or
standing on the bed, at a point blank range
above his right ear as may have caused the
bullet to exit from the forehead of the
deceased above his right eye-brow. Next, it
has
been
submitted,
non-existent
or
extremely weak motive has been cited. The
accused appellant is the brother-in-law of
the deceased being a cousin brother of
Pushpa Devi (P.W.-2). In the admitted fact
that the marriage of the deceased was
solemnized four years earlier and in
absence of any occurrence attributed to the
accused appellant for that long period to
take revenge for a quarrel that may have
been witnessed at the time of marriage of
the deceased, the accused appellant has
been falsely implicated. As to the other
quarrel, wholly incomplete and vague
occurrence has been described as may
never give rise to any motive to the accused
appellant.

23. Then, doubt has been attempted to
be created on the alleged conflict in the
ocular testimony insofar as one eye-witness
described the occurrence to have been
caused while the deceased was sitting on
the bed and the other gave an inconsistent
account where the deceased was sitting or
standing at the time of occurrence. In that
regard, it has also been submitted that the
prosecution has not offered a consistent
stand if the deceased was shot at from point
blank range or from some distance.

24. Then, as if to puncture a hole in
the prosecution story, learned counsel for
the accused appellant would submit, the
presence of Bhurey Singh Diwakar (P.W.-
1) outside the dwelling house of the
deceased at the time of occurrence,
remained admitted to the two prosecution
2 All. Mayank Parasari Vs. State of U.P.
393
witness of fact namely the mother of the
deceased Geeta Devi (P.W.-1) and the wife
of the deceased Pushpa Devi (P.W.-2).
During
their
cross-examination,
both
witnesses admitted that Bhurey Singh
Diwakar (P.W.-1) was their 'bataidar' and
that he along with others was sitting outside
their dwelling house and had seen the
accused appellant enter the dwelling house
of the deceased; heard the gun-shot and;
seen the accused appellant flee from the
dwelling
house
of
the
deceased,
brandishing the country made firearm in his
hand. In such circumstances, once Bhurey
Singh Diwakar (P.W.-1) entered the
witness box though as defence witness
(after being discharged by the prosecution)
he categorically denied the prosecution
story and in fact tried to prove the death
caused by suicide, by the deceased, the
prosecution accepted that fact proven by
the defence witness. In terms of Section
145 of Indian Evidence Act, 1872, the
deposition of the said defence witness was
neither doubted nor his credibility was
impeached. The cross-examination by the
prosecution stopped short of confronting
the said eye-witness with his previous
statement recorded under Section 161
Cr.P.C.

25. Therefore, the entire prosecution
story is ridden with doubt and is
irreconcilably contradicted. In face of
unrebutted deposition of Bhurey Singh
Diwakar (D.W.-1), more than reasonable
doubt exists as to the truthfulness of the
prosecution story.

26. On the other hand, learned AGA
would submit that the prosecution has duly
proven the occurrence by relying on two
ocular account. Minor discrepancies in that
narration apart, there is no fundamental or
patent doubt or fault in the prosecution case
as may allow for any other inference to
arise. As to the testimony of the defence
witness (D.W.-1), it has been urged,
clearly, he had been won over by the
defence. To that extent his deposition was
rightly discarded by the learned court
below.

27. Having heard learned counsel for
parties and having perused the record, in
the first place, it cannot be doubted that the
deceased died of firearm injury suffered by
him on 21.08.2010 at about 6.00 p.m. Both
the prosecution and defence are agreed to
that extent. As to motive, in face of ocular
evidence, first we may not look to discredit
the direct prosecution evidence for reason
of lack of motive. At the same time, it
cannot be denied that the prosecution story
is not wholly consistent either as to whether
the deceased and the accused-appellant
were sitting next to each other when the
accused-appellant caused the occurrence by
firing at the deceased or if the accusedappellant was standing when he caused that
occurrence. Also, the prosecution narration
is not wholly consistent if the deceased was
shot at from point blank range or from
some distance. At the same time, in
absence of it being proven by the defence
that the accused-appellant is a right handed
person, no presumption may be drawn in
that regard and the defence hypothesis that
the accused-appellant may not have shot at
the deceased on his right temple with his
right hand in a manner that the bullet thus
fired caused the exit wound on the right
side of his forehead, is equally a
supposition or a possibility that may not
weigh with the Court in the context of
prosecution and the challenge to it that may
arise only on proven facts.

28. At the same time, in the facts of
the present case, the testimony of Bhurey
394 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh Diwakar (D.W.-1) may not lightly
brushed aside. It is easy for the defence to
produce witness who may completely deny
or dispute the occurrence as disclosed by
the prosecution. The Courts may not rely
on such evidence as it may remain of low
evidentiary value for reason of inherent
object and intent on the part of such
witness to save the accused person.

29. At the same time, in the present
facts Bhurey Singh Diwakar (D.W.-1) is
not a simple defence witness. He is named
in the F.I.R. as a person who had seen the
accused-appellant enter the dwelling house
of the deceased, heard the gunshot caused
by the accused-appellant and further to
have seen the accused-appellant fleeing
from the place of occurrence brandishing a
fire arm in his hand. That fact was first
narrated in the F.I.R. by Geeta Devi (P.W.-
1), mother of the deceased. Further, alleged
statement of said Bhurey Singh Diwakar
(D.W.-1) recorded under Section 161
Cr.P.C. also exists. Perusal of the charge
sheet also reveals that the said Bhurey
Singh Diwakar (D.W.-1) was listed as a
prosecution witness. For reasons not
explained, he was got discharged by the
prosecution.

30. In such facts, both Geeta Devi
(P.W.-1) and Pushpa Devi (P.W.-2) made
deposition to the Court and specifically
stuck to the F.I.R. stand that Bhurey Singh
Diwakar (D.W.-1) was present outside the
dwelling house of the appellant. Therefore,
his
presence
was
admitted
to
the
prosecution from very beginning. It is in
such circumstances that the said Bhurey
Singh Diwakar (D.W.-1) proceeded to
disprove the prosecution story both as to
the manner of occurrence and as to the
presence and involvement of the accusedappellant. According to him, the deceased
died by suicide by causing firearm injury
disclosed in the F.I.R. Also, he completely
denied the presence of the appellant at the
time and place of occurrence.

31. Once, the said defence witness had
thus testified, it was for the prosecution to
demolish his testimony by either doubting
its correctness or by impeaching the
credibility of the witness or both.

32. Section 162 of the Code of
Criminal Procedure read as below:

"162. Statements to police not to
be signed : Use of statements in evidence.

(1) No statement made by any
person to a police officer in the course of
an investigation under this Chapter, shall,
if reduced to writing, be signed by the
person making it; nor shall any such
statement or any record thereof, whether in
a police diary or otherwise, or any part of
such statement of record, be used for any
purpose, save as hereinafter provided, at
any inquiry or trial in respect of any
offence under investigation at the time
when such statement was made :Provided
that when any witness is called for the
prosecution in such inquiry or trial whose
statement has been reduced into writing as
aforesaid, any part of his statement, if duly
proved, may be used by the accused, and
with the permission of the Court, by the
prosecution, to contradict such witness in
the manner provided by section 145 of the
Indian Evidence Act, 1872 (1 of 1872); and
when any part of such statement is so used,
any part thereof may also be used in the reexamination of such witness, but for the
purpose only of explaining any matter
referred to in his cross-examination.

(2) Nothing in this section shall
be deemed to apply to any statement falling
within the provisions of clause (1) of
2 All. Mayank Parasari Vs. State of U.P.
395
section 32 of the Indian Evidence Act, 1872
(1 of 1872), or to affect the provisions of
section 27 of that Act.

Explanation. - An omission to
state a fact or circumstances in the
statement referred to in sub-section (1) may
amount to contradiction if the same
appears to be significant and otherwise
relevant having regard to the context in
which such omission occurs and whether
any omission amounts to a contradiction in
the particular context shall be a question of
fact."

33. Also, the statements recorded by
the
Investigating
Officer
during
investigation are not evidence to be read at
the trial. Yet, they are important and at
times critical to ascertain the truth or the
credibility of a witness. Section 145 of The
Indian Evidence Act, 1872 reads as below:

"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."

34. Further, the credit of any witness
could be impeached in accordance with the
provisions of Section 155 Cr.P.C. That
provision of law reads as below:

"155. Information as to noncognizable cases and investigation of such
cases

(1) When information is given to
an officer in charge of a police station of
the commission within the limits of such
station of a non-cognizable offence, he
shall enter or cause to be entered the
substance of the information in a book to
be kept by such officer in such form as the
State Government may prescribe in this
behalf, and refer, the informant to the
Magistrate.

(2)
No
police
officer
shall
investigate a non-cognizable case without
the order of a Magistrate having power to
try such case or commit the case for trial.

(3) Any police officer receiving
such order may exercise the same powers
in respect of the investigation (except the
power to arrest without warrant) as an
officer in charge of a police station may
exercise in a cognizable case.

(4) Where a case relates to two or
more offences of which at least one is
cognizable, the case shall be deemed to be
a cognizable case, notwithstanding that the
other offences are non-cognizable."

35. In Tara Singh vs State of U.P.,
(1951) SCC OnLine SC 49, two witnesses
entered the witness box at the trial and
made
depositions
contrary
to
their
statements recorded earlier under Section
288 Cr.P.C. Yet, they were not confronted
with that previous statements made by
them. When asked about those previous
statements (at the trial), they only replied
that they were made under coercion. That
reply was found to have not met the
requirement of Section 145 of the Indian
Evidence Act. In that regard, the Supreme
Court observed as below:

41. Now, it is evident that one of
the main purposes of using the previous
statements was to contradict and displace
the evidence given before the Sessions
Court because until that evidence was
contradicted and displaced, there was no
396 INDIAN LAW REPORTS ALLAHABAD SERIES
room in this case for permitting the
previous statements to be brought on
record and used under Section 288.
Therefore, as these statements were not put
to these witnesses and as their attention
was not drawn to them in the manner
required by Section 145, Evidence Act, they
were not admissible in evidence. The
observations of the Privy Council in Bal
Gangadhar Tilak v. Shriniwas Pandit [Bal
Gangadhar Tilak v. Shriniwas Pandit,
(1914-15) 42 IA 135 at p. 147 : 1915 SCC
OnLine PC 16] are relevant here.
(emphasis supplied)

36. In Rudder vs State, 1956 SCC
OnLine All 141, a co-ordinate bench of
this Court opined, a deposition in Court can
or cannot be reconciled with a statement
made under Section 161 Cr.P.C. only after
the alleged omission is brought to the
notice of the witness and he is given an
opportunity to explain the same. In that
regard, it was observed as below:

"Desai, J. also went on to hold
that if the statement under Sec. 162, Cr.
P.C. can be reconciled with the deposition
in court and can stand with it then there is
absolutely no contradiction. The question
whether the deposition in court can or
cannot be reconciled with the statement
recorded under Sec. 161, Cr. P.C. can only
be settled after the omission has been
brought to the notice of the witness and the
witness has had an opportunity to give his
explanation. If after the explanation it
appears that the two are reconcilable, it
would cease to be a contradiction. But that
can happen not only in the case of an
omission, but even in the case of an
apparent contradiction of positive facts
included
in
the
deposition
and
the
statement under Sec. 161, Cr. P.C. There
may appear to be a contradiction between
the deposition in court and the statement
under Sec. 161, Cr. P.C. but when it is put
to the witness, he may give an explanation
which may reconcile them, whereupon the
contradiction
may
cease
to
be
a
contradiction. The mere fact that he may
possibly reconcile the two statements,
cannot effect the applicability of the
proviso to Sec. 162, Cr. P.C. in the case of
an omission which is of such a nature that
it can be held to be a contradiction."

37. In Inder Deo & Anr. vs State,
(1958) SCC OnLine All 175, an issue
arose if a statement recorded under Section
288 Cr.P.C. may be treated as evidence if it
was not disclosed to the witness (at the
time of such statement being recorded), that
the Court may use the statement as
evidence. While considering the issue, a
coordinate bench of this Court noticed noncompliance of Section 145 of the Indian
Evidence Act, 1875. Thereupon, relying on
Tara Singh vs State of U.P., (supra), a
coordinate bench of the Court observed as
below:

"There is, in the present case, yet
another difficulty which we have found in
the way of properly treating the statements
of the two witnesses mentioned above as
admissible, if we may use that expression,
under Sec. 288, Cr. P.C. and the difficulty
we find is that in respect of these
statements compliance had not been made
of the provisions of Sec. 145 of the Indian
Evidence Act. Sec. 288 itself states that
evidence was subject for all purposes to the
provisions of the Indian Evidence Act. As
we have pointed out earlier, specific
passages or the particular portions on
which the prosecution desired to contradict
the witnesses were not read out to the
witnesses and they were not afforded an
opportunity of explaining those particular
2 All. Mayank Parasari Vs. State of U.P.
397
or specific passages. The entire statements
were read out to the witnesses and they
were asked to say what they had to in
regard to the entire statements. In our
opinion, this was not compliance with the
provisions of Sec. 145 of the Indian
Evidence Act. A proper compliance of these
provisions can only be if the particular
passages are put to the witnesses. We may
here refer to the decision of their Lordships
of the Supreme Court in Tara Singh v. The
State [1951 A.L.J. 640 : A.I.R. S.C. 441.]
wherein their Lordships at pages 446-447
said this:

"There is some difference of
opinion regarding this matter in the High
Courts. Sec. 288 Provides that the evidence
recorded by the Committing Magistrate in
the presence of the accused may, in the
circumstances set out in the section, 'be
treated as evidence in the case for all
purposes subject to the provisions of the
Indian Evidence Act, 1872.' One line of
reasoning is that Sec. 145, Evidence Act, is
not attracted because that section relates to
previous statements in writing which are to
be used for the purpose of contradiction
alone. Statements of that kind do not
become substantive evidence and though
the evidence given in the trial can be
destroyed by a contradiction of that kind,
the previous statements cannot be used as
substantive evidence and no decision can
be grounded on them. But under Sec. 288,
Cr. P.C. the previous statement becomes
evidence for all purposes and can form the
basis of a conviction. Therefore, according
to this line of reasoning Sec. 145, Evidence
Act, is not attracted. Judges who hold that
view consider that provisions of the
Evidence Act referred to are those relating
to hearsay and matters of that kind which
touch substantive evidence."

In my opinion the second line of
reasoning is to be preferred. I see no
reason why Sec. 145, Evidence Act, should
be excluded when Sec. 288 states that the
previous statements are to be 'subject to
the provisions of the Indian Evidence Act.'
Sec. 145 falls fairly and squarely within the
plain meaning of these words. More than
that this is a fair and proper vision and is
in accord with sense of fair-play to which
Courts are accustomed...........I hold that
the evidence in the Committal Court cannot
be used in the Sessions Court unless the
witness is confronted with his previous
statement as required by Sec. 145,
Evidence Act...... but if the prosecution
wishes to go further and use the previous
testimony to the contrary as substantive
evidence, then it must, in my opinion,
confront the witness with those parts of it
which are to be used for the purpose of
contradicting him. Then only can the
matter be brought in as substantive
evidence under Sec. 288." (The decision of
the Supreme Court was given, by Bose, J.
and Fazl Ali, J., Patanjali Sastri, J., and
Das, J., agreed with that decision.)."

 (emphasis supplied)

38. In Tahsildar Singh & Anr. vs
State of U.P., (1959) SCC OnLine SC 17,
six-judge bench of the Supreme Court had
the occasion to consider the changes made
to Section 162 of the Cr.P.C. The Supreme
Court recognized the object to incorporate
the amendment to Section 162 Cr.P.C. and
Section 145 of the Indian Evidence Act - to
protect the accused from any statement
made by a witness only before any police
authority and to protect the accused from
any false statement deposition made at the
trial. It was also recognized, such previous
statement made to the police may be used
by the accused person to bring out any
contradiction that would be of help to the
accused and/or to discredit the witness
making any statement before the Court. In
398 INDIAN LAW REPORTS ALLAHABAD SERIES
that regard, in paragraph 17 of the report, it
has been observed as below:

"17. At the same time, it being
the earliest record of the statement of a
witness soon after the incident, any
contradiction found therein would be of
immense help to an accused to discredit the
testimony
of
a
witness
making
the
statement. The section was, therefore,
conceived in an attempt to find a happy via
media, namely, while it enacts an absolute
bar against the statement made before a
police officer being used for any purpose
whatsoever, it enables the accused to rely
upon
it
for
a
limited
purpose
of
contradicting a witness in the manner
provided by Section 145 of the Evidence
Act by drawing his attention to parts of the
statement intended for contradiction. It
cannot be used for corroboration of a
prosecution or a defence witness or even a
court witness. Nor can it be used for
contradicting a defence or a court witness.
Shortly stated, there is a general bar
against its use subject to a limited
exception in the interest of the accused, and
the exception cannot obviously be used to
cross the bar."

(emphasis supplied)

39. Then, in State of U.P. vs Nahar
Singh, (1998) 3 SCC 561, the Supreme
Court referred to and applied the following
principle of law laid down by Lord
Herschell, L.C. in Browne v. Dunn, [(1893)
6 R 67] wherein it was observed as below:

"I cannot help saying, that it
seems to me to be absolutely essential to
the proper conduct of a cause, where it is
intended to suggest that a witness is not
speaking the truth on a particular point, to
direct his attention to the fact by some
questions put in cross-examination showing
that that imputation is intended to be made,
and not to take his evidence and pass it by
as a matter altogether unchallenged, and
then, when it is impossible for him to
explain, as perhaps he might have been
able to do if such questions had been put to
him, the circumstances which, it is
suggested, indicate that the story he tells
ought not to be believed, to argue that he is
a witness unworthy of credit. My Lords, I
have always understood that if you intend
to impeach a witness, you are bound, whilst
he is in the box, to give an opportunity of
making any explanation which is open to
him; and, as it seems to me, that is not only
a rule of professional practice in the
conduct of a case, but it is essential to fair
play and fair dealing with witnesses."

 (emphasis supplied)

40. Then, in Rammi vs State of M.P.,
(1999) 8 SCC 649, the Supreme Court
examined the scope of Section 155 of the
Indian Evidence Act and held, the previous
statement made by a witness (who later
deposes before a Court), may be used to
impeach his credibility, in accordance with
the Section 155(3) of the Indian Evidence
Act. In that, it observed as below:

"25.