# Rajendr Yadav v. State of U.P

- **Citation:** (2025) 8 ILRA 943
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-08-06
- **Case number:** Criminal Appeal No. 74 of 2000
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendr-yadav-v-state-of-u-p-53832
- **Pages:** 15

## Headnote

Section 307 IPC could be sustained when (i)
the statement of the injured witness was not
recorded
under
Section
161
Cr.P.C.,
thereby denying the accused a valuable right of
contradiction; (ii) the presence of eye-witnesses
and source of light at the place of occurrence
was doubtful; (iii) ocular testimony suffered
from material contradictions inconsistent with
medical evidence; and (iv) the prosecution failed
to prove intention to commit murder beyond
reasonable doubt.

Headnotes
Indian Penal Code, 1860 - s.307 -
Attempt to murder - Appreciation of
evidence - Injured witness - Nonrecording of statement under s.161 Cr.P.C.
- Right of contradiction under ss.145
Evidence Act & 162 Cr.P.C. - Source of
light
doubtful
-
Ocular
evidence
inconsistent with medical evidence -
Benefit of doubt - Acquittal.

Held:
Failure of the Investigating Officer to record the
statement of the injured witness under Section
161 Cr.P.C. before submission of the chargesheet amounted to gross negligence and
deprived the accused of a valuable statutory
right to contradict the witness under Sections
145 Evidence Act and 162 Cr.P.C. Though such
omission does not render the testimony
inadmissible,
it
seriously
impairs
its
evidentiary
value
and
necessitates
heightened scrutiny. [Paras 10-19]

In the present case, the presence of the
alleged eye-witnesses at the place of
occurrence was doubtful owing to material
contradictions regarding their seating position,
the existence and placement of light, and
the distance and direction from which the
firearm was allegedly discharged. The source of
light was not mentioned in the FIR and
remained uncertain in evidence. [Paras 21-22]

The injured witness stated that the shot was
fired from the east while he was moving
towards the north-west, yet the gunshot
injury was found on the front of the chest,
rendering the ocular version inconsistent
with medical evidence. Such inconsistency
went to the root of the prosecution case.
[Paras 22, 26]

Independent witnesses named in the FIR were
not examined; the alleged blood trail was not
scientifically corroborated; and presumptions
drawn by the trial court regarding lighting
conditions were unsupported by evidence. In
these circumstances, the prosecution failed to
establish the intention requisite for Section
307 IPC beyond reasonable doubt. [Paras 2126]

The appellant was entitled to benefit of
doubt. Conviction and sentence set aside;
appellant acquitted. [Paras 26-27]

Appeal allowed. (E-14)
944 INDIAN LAW REPORTS ALLAHABAD SERIES
Case Law Cited
Gopal Krishna v. State, AIR 1964 All 481 -
relied on; Shankar Lal and others v. State,
AIR 1954 All 779 - followed; State of NCT
of Delhi v. Ravi Kant Sharma, (2007) 2
SCC 764 - referred; Virender Singh v.
State of Haryana, (2017) 11 SCC 126 -
referred; Balu Sudam Khalde v. State of
Maharashtra,
AIR
2023
SC
1736
-
applied; Jage Ram v. State of Haryana,
(2015) 11 SCC 366 - referred; State of
M.P. v. Kanha, AIR 2019 SC 713 -
referred.

List of Acts / Statutes
Code of Criminal Procedure, 1973; Indian Penal
Code, 1860; Indian Evidence Act, 1872.

List of Keywords
Attempt to murder; Section 307 IPC; Injured
witness; Statement under Section 161 Cr.P.C.;
Right of contradiction; Source of light; Ocularmedical inconsistency; Benefit of doubt; Faulty
investigation; Acquittal.

Case Arising From
Judgment and order dated 27.01.2000 passed
by the Ist Additional Sessions Judge, Unnao in
Sessions Trial No. 432 of 1994 (State v.
Rajendra Yadav), arising out of Case Crime No.
44 of 1994, Police Station Makhi, District Unnao.

Appearance for Parties
For the Appellants: Sri Rajendra Prasad
For the State: Additional Government Advocate

## Text

_Characters 0–39,920 of 50,582. This is a partial read: ask again with offset=39920 for what follows._

8 All. Rajendr Yadav Vs. State of U.P.
943
along with reasons witihin the same time in
those matters.

56. Respondent-authorities are also
directed to declare the result of the
petitioners within a month from the date of
completion of examination and issue
appointment letters, if they are selected.
----------
(2025) 8 ILRA 943
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.08.2025

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Criminal Appeal No. 74 of 2000

Rajendr Yadav ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
J.N. Chaudhry, Bhaiya Lal Yadav, Rajendra
Prasad

Counsel for the Respondent:
Govt Advocate

Issue for Consideration
Whether the conviction of the appellant under
Section 307 IPC could be sustained when (i)
the statement of the injured witness was not
recorded
under
Section
161
Cr.P.C.,
thereby denying the accused a valuable right of
contradiction; (ii) the presence of eye-witnesses
and source of light at the place of occurrence
was doubtful; (iii) ocular testimony suffered
from material contradictions inconsistent with
medical evidence; and (iv) the prosecution failed
to prove intention to commit murder beyond
reasonable doubt.

Headnotes
Indian Penal Code, 1860 - s.307 -
Attempt to murder - Appreciation of
evidence - Injured witness - Nonrecording of statement under s.161 Cr.P.C.
- Right of contradiction under ss.145
Evidence Act & 162 Cr.P.C. - Source of
light
doubtful
-
Ocular
evidence
inconsistent with medical evidence -
Benefit of doubt - Acquittal.

Held:
Failure of the Investigating Officer to record the
statement of the injured witness under Section
161 Cr.P.C. before submission of the chargesheet amounted to gross negligence and
deprived the accused of a valuable statutory
right to contradict the witness under Sections
145 Evidence Act and 162 Cr.P.C. Though such
omission does not render the testimony
inadmissible,
it
seriously
impairs
its
evidentiary
value
and
necessitates
heightened scrutiny. [Paras 10-19]

In the present case, the presence of the
alleged eye-witnesses at the place of
occurrence was doubtful owing to material
contradictions regarding their seating position,
the existence and placement of light, and
the distance and direction from which the
firearm was allegedly discharged. The source of
light was not mentioned in the FIR and
remained uncertain in evidence. [Paras 21-22]

The injured witness stated that the shot was
fired from the east while he was moving
towards the north-west, yet the gunshot
injury was found on the front of the chest,
rendering the ocular version inconsistent
with medical evidence. Such inconsistency
went to the root of the prosecution case.
[Paras 22, 26]

Independent witnesses named in the FIR were
not examined; the alleged blood trail was not
scientifically corroborated; and presumptions
drawn by the trial court regarding lighting
conditions were unsupported by evidence. In
these circumstances, the prosecution failed to
establish the intention requisite for Section
307 IPC beyond reasonable doubt. [Paras 2126]

The appellant was entitled to benefit of
doubt. Conviction and sentence set aside;
appellant acquitted. [Paras 26-27]

Appeal allowed. (E-14)
944 INDIAN LAW REPORTS ALLAHABAD SERIES
Case Law Cited
Gopal Krishna v. State, AIR 1964 All 481 -
relied on; Shankar Lal and others v. State,
AIR 1954 All 779 - followed; State of NCT
of Delhi v. Ravi Kant Sharma, (2007) 2
SCC 764 - referred; Virender Singh v.
State of Haryana, (2017) 11 SCC 126 -
referred; Balu Sudam Khalde v. State of
Maharashtra,
AIR
2023
SC
1736
-
applied; Jage Ram v. State of Haryana,
(2015) 11 SCC 366 - referred; State of
M.P. v. Kanha, AIR 2019 SC 713 -
referred.

List of Acts / Statutes
Code of Criminal Procedure, 1973; Indian Penal
Code, 1860; Indian Evidence Act, 1872.

List of Keywords
Attempt to murder; Section 307 IPC; Injured
witness; Statement under Section 161 Cr.P.C.;
Right of contradiction; Source of light; Ocularmedical inconsistency; Benefit of doubt; Faulty
investigation; Acquittal.

Case Arising From
Judgment and order dated 27.01.2000 passed
by the Ist Additional Sessions Judge, Unnao in
Sessions Trial No. 432 of 1994 (State v.
Rajendra Yadav), arising out of Case Crime No.
44 of 1994, Police Station Makhi, District Unnao.

Appearance for Parties
For the Appellants: Sri Rajendra Prasad
For the State: Additional Government Advocate

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard Sri Rajendra Prasad,learned
counsel for the appellant and learned
Additional Government Advocate.

2. This Criminal Appeal under Section
374(2)
of
Criminal
Procedure
Code
(hereinafter referred to as Cr.P.C.) has been
filed against the judgment and order dated
27.1.2000 passed in Session Trial No.432
of 1994 (State versus Rajendra Yadav) by
Ist Additional Sessions Judge, Unnao, by
means of which the appellant Rajendra
Yadav has been convicted and sentenced
under Section 307 IPC to undergo 7 years
rigorous imprisonment and Rs.5000/- as
fine and in default of payment of fine to
further
undergo
1
year
rigorous
imprisonment.

3. Learned counsel for the appellant
submitted that the appellant has falsely
been implicated in the case and the trial
court, without considering the evidence and
material on record appropriately, has
convicted the appellant and sentenced him
as above. He further submitted that the
presence of P.W.1 and P.W.2 at the place
of incident itself is doubtful. He also
submits that the injury sustained by the
appellant cannot come in the facts and
circumstances of the case because as per
the evidence of the injured, while he was
going towards North-West, the fire was
made by pistol by the appellant from East
and in such circumstances the said injury
could not have come at 10'o clock to niple
in chest. He further submitted that no
source of light has been shown at the place
of incident either in the F.I.R. or in the
evidence and only a lantern was at some
distance but the recovery memo of torch
has been shown. He also submitted that the
F.I.R.
is
anti-dated
and
there
is
contradiction in the story, as such, the same
is concocted. He also submitted that the
trial itself was faulty because statement of
injured Shyam Lal was neither recorded
under Section 161 Cr.P.C nor given to the
appellant, therefore, he has been denied the
opportunity to contradict to the injured
about his previous statement. He also
submitted that there is contradiction in the
evidence of the investigating officer and
the Constable. The scriber of F.I.R. has not
been
got
examined.
None
of
the
independent eye witness has been got
examined. The trail of blood has not been
8 All. Rajendr Yadav Vs. State of U.P.
945
found on the spot. He relied on Gopal
Krishna versus State; AIR 1964 All 481
and Shankar Lal and others versus State;
AIR 1954 All 779.

4. On the basis of above, submission
of learned counsel for the appellant is that
the impugned judgment and order is not
sustainable in the eyes of law and liable to
be set aside and the appellant is liable to be
acquitted.

5. Learned AGA vehemently opposed
the submissions of learned counsel for the
appellant.
He
submitted
that
the
prosecution has proved it's case beyond
doubt in accordance with law by adducing
the evidence. The testimony of injured
witness cannot be discarded as the injured
witness has proved the incident and the
injury. The F.I.R. was lodged promptly.
Thus, learned AGA submitted that the
impugned judgment and order has rightly
been passed in accordance with law, which
does not suffer from any illegality or error.
The appeal has been filed on misconceived
and baseless grounds and it is liable to be
dismissed. He relied on Balu Sudam
Khalde and Others versus The State of
Maharashtra; MANU/ SC/0328/2023[AIR
2023 SC 1736], Jage Ram versus State of
Haryana;
MANU/SC/0074/2015,[(2015)
11 SCC 366]; and The State of Madhya
Pradesh
versus
Kanha;
MANU/SC/0130/2019; [AIR 2019 SC
713].

6. I have considered the submissions
of learned counsel for the parties and
perused the records.

7. The prosecution story, in brief, is
that on 13.2.1994 in the evening informant
Nand Kumar alongwith his brother injured
Shyam Lal had gone to the house of
accused Rajendra Yadav on invitation for a
feast. At about 7 P.M. Shyam Lal asked
Rajendra to serve food without delay as he
had invited so early. On this, the accused
persons started abusing Shyam Lal. Shyam
Lal then said that he would go back. On
this accused Gyan Singh, Chhote Lal,
Rajjan and Ram Shanker asked Rajendra to
beat him, whereupon accused Rajendra
Yadav, with intent to cause death, fired at
Shyam Lal with a country made pistol,
whereby Shyam Lal sustained hurt on his
chest and fell down at some distance. The
incident was witnessed by informant-Nand
Kumar, Sukh Lal, Surjan and many others.
Shyam Lal was taken to District Hospital,
Unnao, wherefrom he was referred to
Hallet Hospital, Kanpur. Nand Kumar got a
written report of the incident scribed by
Lakshmi Narain and lodged it at the police
station Makhi on 14.02.1994 at 1:30 a.m.,
whereupon Case Crime No.44/94, under
Sections 147, 148, 149, 307 and 504 IPC
was registered and investigated. The
injured was medically examined at District
Hosptial, Unnao on 13.02.1994 at 9:45 p.m.
The
investigating
office
recorded
statements of the witnesses and prepared a
site plan. He seized blood stained earth and
plain earth from the spot and prepared a
memo. He also seized blood stained clothes
of the injured and prepared a memo. Torch
of Nand Kumar was inspected and given to
the Supurdagi of Nand Kumar after
preparing
Fard
Supardaginama.
After
completing the investigation, the local
police submitted charge sheet against all
the five accused persons.

8. The case was committed to the
court of Sessions by means of the order
dated 29.06.1994 by 5th Additional C.J.M.,
Unnao. The charge was framed against the
appellant Rajendra Yadav under Sections
148 and 307 I.P.C., while the remaining
946 INDIAN LAW REPORTS ALLAHABAD SERIES
four accuseds, namely, Ram Shankar, Gyan
Sngh, Chhotey Lal and Rajjan were
charged with Section 147 and 307 I.P.C.
read with Section 149 IPC. The prosecution
examined Nand Kumar as P.W.1, Shyam
Lal as P.W.2, Constable Om Prakash as
P.W.4, Dr. Rajeev Khare as P.W.4, S.I.
Ramsingar Singh as P.W.5 and S.I. S.P.
Singh as P.W.6 to prove it's case. After
evidence adduced by the prosecution,
statement under Section 313 Cr.P.C. of the
appellant alongwith other accuseds were
recorded, in which they denied the
allegations and stated that they have falsely
been implicated due to enmity. The
appellant Rajendra Yadav in addition
thereto stated that the injured Shyam Lal
used to come to his doors earlier also in a
drunken state and hurl abuses, whereupon
he used to ask him to get away. However,
in defence, the appellant and the other
accuseds did not adduce any evidence.
Learned trial court, thereafter, after hearing
learned counsel for the parties and perusing
the evidence and material on record,
acquitted Ram Shankar, Gyan Singh,
Chhotey Lal and Rajjan under Sections 147
and 307 I.P.C. read with Section 149 I.P.C.
and the appellant Rajendra Yadav under
Section 148 I.P.C. However, the appellant
Rajendra Yadav has been held guilty and
has been convicted under Section 307
I.P.C. and sentenced to undergo the
aforesaid punishment. Hence this criminal
appeal has been filed.

9. P.W.1 Nand Kumar is the real
brother of the injured and informant of the
case. He proved written report Exhibit Ka1. P.W.2 Shyam Lal is the injured. P.W.3
Constable Om Prakash has proved the chik
F.I.R. Exhibit Ka-2 and a copy of the
relevant entries made in the G.D. Exhibit
Ka-3. P.W. 4 Rajeev Khare, who had
examined the injuries of the injured Shyam
Lal P.W.2 on 13.02.1994 at 9:45 p.m. at
District Hospital Unnao, proved the injury
report, Ext.Ka-4. He found gun-shot wound
of entry 3 cm. x 2/5 c.m. x chest cavity
deep on left side of chest, 4 cm. medial to
left nipple at 10 O' clock position. Margins
of the wound were lacerated, echymosed
and inverted, blackening and tattooing
present in an area of 6 cm.x5.5 c.m. area of
wound. The wound was sucking in nature.
He kept the injuries under observation and
advised for X' ray of chest and opined the
injury to have been caused by fire-arm
weapon with fresh duration. He also stated
that condition of injured was serious. P.W.5
S.I.
Ram
Singar
Singh
had
started
investigation of the case and prepared Fard
Exhibit Ka-5 of blood stained and plain
earth. He also prepared Fard Exhibit Ka-6
of blood stained clothes of Shyam Lal. He
inspected torch of Nand Kumar and
prepared Fard Supardaginama Exhibit Ka7. He prepared site plan Exhibit Ka-8 and
proved charge sheet Exhibit Ka-9 filed by
S.I. S.P. Singh, who appeared as P.W.6.
P.W.6 Surendra Pal Singh, Sub-Inspector,
took over the investigation from S.I. Ram
Singar Singh and recorded statements of
accused Rajjan and Chhote Lal on
24.03.1994 and submitted charge sheet
Exhibit Ka-9 against all the accuseds on
28.03.1994.

10. One of the grounds of challenge to
the impugned order is that the statement of
the injured Shyam Lal, who appeared as
P.W.2, was not recorded under Section 161
Cr.P.C., therefore, the trial vitiated and the
conviction of the appellant could not have
been made. Thus before proceeding to
consider the case on merit, this Court
deems it appropriate, to consider this issue
first because it will have impact on the
consideration of the case and evidence on
record.
8 All. Rajendr Yadav Vs. State of U.P.
947

11. Section 161 Cr.P.C. provides the
examination of witness by police. Sub
Section (1) provides that any police officer
making an investigation under this Chapter,
may examine orally any person supposed to
be
acquainted
with
the
facts
and
circumstances of the case and such person
shall be bound to answer truly all questions
relating to such case under Sub Section (2).
Under Sub Section (3) the police officer
may reduce into writing any statement
made to him in the course of an
examination under this section; and if he
does so, he shall make a separate and true
record of the same. Section 161 Cr.P.C. is
extracted here-in-below:-

"161-Examination of witnesses
by police:- (1) Any police officer making
an investigation under this Chapter, or any
police officer not below such rank as the
State Government may, by general or
special order, prescribe in this behalf,
acting on the requisition of such officer,
may examine orally any person supposed to
be
acquainted
with
the
facts
and
circumstances of the case.

(2) Such person shall be bound to
answer truly all questions relating to such
case put to him by such officer, other than
questions the answers to which would have
a tendency to expose him to a criminal
charge or to a penalty or forfeiture.

(3)The police officer may reduce
into writing any statement made to him in the
course of an examination under this section;
and if he does so, he shall make a separate
and true record of the statement of each such
person whose statement he records.

Provided that statement made
under this sub-section may also be recorded
by audio-video electronic means"

12. Section 162 Cr.P.C. provides that
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. The
proviso appended to Sub Section (1) of
Section 162 provides 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, 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 crossexamination. Section 162 Cr.P.C. is extracted
here-in-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
948 INDIAN LAW REPORTS ALLAHABAD SERIES

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.

(2)Nothing in this section shall be
deemed to apply to any statement falling
within the provisions of clause (1) of
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."

13. Section 145 of the Indian Evidence
Act,1872 provides cross-examination of a
witness regarding previous statements in
writing. It provides that 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.
Section 145 of the Indian Evidence Act,
1872 is extracted here-in-below:-

"145.Cross Examination as to
previous statement 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."

14. In view of above, the police officer
investigating any offence may examine
orally
any
person
supposed
to
be
acquainted with the facts and circumstances
of the case and reduce into writing any
statement made by him. The said statement
cannot be used in any inquiry or trial in
respect of any offence under investigation
but the said statement may be used to
contradict the said witness for the purpose
of explaining any matter referred in his
cross-examination by the witness. The
accused may contradict the said witness in
cross-examination in the manner provided
under Section 145, in which his writing
may also be got proved. Since the right has
been given to the accused in the proviso to
Section 162(1), therefore, the statement of
such witness recorded under Section 161
Cr.P.C. would be material for his defence
at the time of cross-examination. It is
settled in law that every accused shall be
afforded sufficient opportunity of defence
during trial to prove his innocence,
therefore, statute also provides to supply all
the relevant material to the accused. The
statements recorded under section 161
Cr.P..C. are also required to be furnished to
8 All. Rajendr Yadav Vs. State of U.P.
949
the accused under Section 207(iii) Cr.P.C.
Section
207(iii)
Cr.P.C.
is
extracted
hereinbelow:-

" 207 Supply to the accused of
copy
of
police
report
and
other
documents:-

In any case where the proceeding
has been instituted on a police report, the
Magistrate shall without delay furnish to
the accused, free of cost, a copy of each of
the following;

(i)...........

(ii)...........

(iii)
the
statements
recorded
under Sub-Section (3) of section 161 of all
persons whom the prosecution proposes to
examine
as
its
witnesses,
excluding
therefrom any part in regard to which a
request for such exclusion has been made
by the police officer under Sub-Section (6)
of section 173;

(iv)..............

(v)..............

Provided that the Magistrate may,
after perusing any such pan of a statement
as is referred to in clause (iii) and
considering the reasons given by the police
officer for the request, direct that a copy of
that part of the statement or of such portion
thereof as the Magistrate thinks proper,
shall be furnished to the accused; Provided
further that if the Magistrate is satisfied that
any document referred to in clause (v) is
voluminous, he shall, instead of furnishing
the accused with a copy thereof, direct that
he will only be allowed to inspect it either
personally or through pleader in Court."

15. A Coordinate Bench of this Court,
in the case of Gopal Krishna versus
State(supra), has observed that it is
obvious that though the police is not bound
to make a record of the statement of the
witnesses under Section 161 as a matter of
obligation, but it is their duty to do so,
when the witness is a material witness for
unfolding the prosecution story. It is also
clear that a failure on their part to comply
with the requirements of Section 161(3),
though does not render the subsequent
statement of the witness at the trial
inadmissible, it does greatly impair the
value of the evidence of that witness. Thus
the Court opined that the statement of such
witness looses much of it's weight and the
value of the testimony furnished by the
witnesses produced at the trial has to be
assessed. The relevant paragraph 19 to 23
is extracted here-in-below:-

"19. Section 161(3) runs as
follows:

"The police officer may reduce
into writing any statement made to him in
the course of an examination under this
section ....................."

20. Section 164(1) also provides
that "Any Presidency Magistrate, any
Magistrate of the First Class ............ may
record any statement or confession made to
him in the course of an investigation under
this Chapter.

The word 'may' as used in S. 164
came up for comment in the case of Nazir
Ahmad v. King Emperor, AIR 1936 PC
253 (2) and their Lordships were pleased to
observe as follows:

"It can hardly be doubted that a
magistrate would not be obliged to record
950 INDIAN LAW REPORTS ALLAHABAD SERIES
any confession made to him if, for
example, it were that of a self-accusing
mad man or for any other reasons the
magistrate thought it to be incredible or
useless for the purposes of justice. Whether
a magistrate records any confession is a
matter of duty and discretion and not of
obligation" ............ In the case of
Purushottam Jethanand v. State of Kutch,
AIR 1954 SC 700 it was held:

"There can be no doubt that the
right which the accused had got of
obtaining the copies of the statements made
by witnesses during investigation is a very
valuable right and that the wholesale
refusal to grant the same will be a serious
irregularity which would vitiate the entire
trial as held by the Privy Council in
Kottaya v. Emperor, AIR 1947 PC 67."

21 In the case of Tilkeshwar
Singh v. State of Bihar, (S) AIR 1956 SC
238 it was held that while the failure to
comply with the requirements of Section
161(3) of the Cr PC might affect the weight
to be attached to the evidence of the
witnesses,
it
does
not
render
it
inadmissible.

22. On the basis of these
authorities, it is obvious that though the
police are not bound to make a record of
the statement of the witnesses under S. 161
as a matter of obligation, it is their duty to
do so when the witness is a material
witness for unfolding the prosecution story.
It is also clear that a failure on their part to
comply with the requirements of S. 161(3),
though does not render the subsequent
statement of the witness at the trial
inadmissible, it does greatly impair the
value of the evidence of that witness. I am,
therefore, of opinion that the statement of
the Complaints Officer Bal Singh at the
trial though admissible in evidence has lost
much I of its weight on account of the fact
that his statement was not recorded under
Section 161 of the Cr PC.

23.
In
the
light
of
above
discussion of the legal questions raised in
the case, the value of the testimony
furnished by the witnesses produced at the
trial has to be assessed."

16. A Division Bench of this Court, in
the case of Shankar Lal and others versus
State(supra), has held that It is not safe to
convict
an
accused
person
on
the
statements of witnesses, who have not been
effectively and completely cross-examined
because appellants were denied a valuable
right conferred on them by law.

17. The Hon'ble Supreme Court, in the
case of State of NCT of Delhi versus Ravi
Kant Sharma and Others; (2007) 2 SCC
764, has held that the police officer may
reduce into writing any statement made to
him in the course of an examination under
this section; and if he does so, he shall
make a separate and true record of the
statement of each such person whose
statement he records. It is only when the
investigating officer decides to record the
statement of witnesses under Section 161
Cr.P.C. that he becomes obliged to make a
true record of the statement which
obviously will not include the interpretation
of
the
investigating
officer
of
the
statements or the gists of statement.

18. The Hon'ble Supreme Court, in the
case of Virender Singh versus State of
Haryana; (2017) 11 SCC 126, has held
that the statements made by the witness in
the course of her investigation and recorded
under Section 161 CrPC do not constitute
evidence that can be relied upon by a court
8 All. Rajendr Yadav Vs. State of U.P.
951
to convict an accused. But this is what the
High Court seems to have done. It was
open for the High Court to consider all
other evidence, ocular or circumstantial,
implicating the accused, if such evidence
was available. But no reliance could have
been placed on the statements recorded
under Section 161 CrPC. The absence of
any evidence and a suspicion in the mind of
the Court cannot justify recourse to a
consideration of what clearly is not
evidence in law.

19. Adverting to the facts of the
present case, admittedly the statement
under Section 161 Cr.P.C. of the injured
Shyam Lal; P.W.-2 was not recorded by the
Investigating Officer S.I. S.P. Singh as he
was admitted in hospital and no effort was
made by him to examine the injured before
submitting the charge sheet, which has
been admitted by him, therefore, the trial
court had directed to send a copy of the
judgment to the Superintendent of Police,
Unnao to take such action against him as he
deems appropriate for gross negligence in
not examining the injured Shyam Lal under
Section 161 Cr.P.C. before submitting the
charge sheet. Thus in view of the law as
discussed above, the appellant could not be
afforded opportunity to contradict his
earlier statement in cross-examination, if he
would have made any, immediately after
the incident. However in the present case
learned counsel for the appellant himself
has relied on the evidence and crossexamination of P.W.-2; injured. Therefore,
it is to be seen that irrespective of his
evidence before the trial court, the evidence
adduced by the other witnesses was
sufficient or not to prove the charge against
the appellant and as to whether his
evidence, who was an injured witness and
sustained injuries in the incident can be
discarded totally on the aforesaid ground in
the present case and if not, what would be
weight of his evidence and how much of it
can be relied.

20. In the present case, learned
counsel for the appellant, though argued
that in absence of statement under Section
161 Cr.P.C. of the injured Shyam Lal;
P.W.-2, the proper opportunity could not be
afforded to him and impugned judgment
and order is liable to be set aside, but he
has heavily relied on the evidence of P.W.-
1 and P.W.2 to show that their presence on
the spot of incident was doubtful and the
injured P.W.-2 could not have sustained the
injuries in chest in the said incident and
source of light on the spot also could not be
proved, therefore, the said witnesses could
not have seen as to who had fired. Thus this
court is of the view that the impugned
judgment and order cannot be set-aside
merely on the ground of non recording of
statement of injured under Section 161
Cr.P.C. For this reason also the case is to
be considered in the light of aforesaid
observations.

21. P.W.1 Nand Kumar, who is real
brother of the injured and the informant of
the case, appeared as an eye witness. He
stated in his evidence that he does not
know brother-in-law and father-in-law of
the appellant, whereas he had lodged F.I.R.
against them. He stated in his crossexamination that he is neither neighbour
nor of the caste of the appellant Rajendra.
Jagdhar had invited and called him at 6:00
in the evening for the feast. At that time,
there was light but at the time of incident, it
was dark. He, on the one hand stated that
they sat in front of the house of Ram
Shankar instead of Rajendra and Ram
Shankar had informed him and on the other
he has stated that they were sitting on a cot
inside
the
chaupal.
Thus
there
is
952 INDIAN LAW REPORTS ALLAHABAD SERIES
contradiction in it and the injured Shyam
Lal i.e. P.W.-2 has stated that he sat in
room in the forefront of house of Rajendra
and further stated that it was like Chaupal,
in which he sat. He, also stated that his
brother was not sitting with him. Thus their
presence at one and the same place is
doubtful. P.W.-1 has also stated that where
they were sitting, no lantern was burning. A
chirag was burning in chaupal, where they
were sitting and the place of incident was at
a distance of 15 steps. My brother had not
fallen there, rather, he had fell after 2-4
steps. He further stated that he has not
stated in the report about burning of the
lantern and he does not know any reason as
to why burning of the lantern has not been
mentioned in the report. He further stated
that the lantern was under the thatch out
side Chaupal. He also stated that his
brother Shyam Lal used to take liquor and
he was challaned by police. Thus burning
of a chirag has been shown by P.W.1 in
chaupal, where they were sitting in his
cross
examination,
whereas
in
the
examination-in-chief he stated that the
lantern was burning but the place has not
been disclosed and in cross-examination
lantern has been shown under thatch, which
was out of chaupal or room, where they
were stated to were sitting and the injured
Shyam Lal had suffered injury at a distance
of about 15 steps. P.W.-2 has also stated
about lantern in chaupal. But it has not
been disclosed as to from which side and
from what distance the appellant fired.
Thus the source of light at the place of
incident is doubtful. He has further stated
that Jaghdar had come to call him and
Shyam Lal and they accompanied him on
13.02.1994 at about quarter to 7, whereas
in cross-examination he has stated the time
6. He also stated that Shyam Lal asked to
the
appellant
Rajendra
for
making
arrangement of food quickly and call
whomsoever he wants to call because we
have been called very early. The appellant
replied that the food is still not ready and
you always used to make nuisance in his
work. Shyam Lal stated that give us food
otherwise we will go and they stood up to
go. At that time Chhotey Lal, Gyan Singh,
Rajjan and Ram Shankar exhorted the
appellant Rajendra to beat Shyam Lal, so
that he may not go, on which, the appellant
Rajendra fired on Shyam Lal from country
made pistol, in which Shyam Lal got
injuries. He ran but fell after going at some
distance. Sukhlal, Surjan, Bheekha and
others had seen the incident. On being
controverted, the accuseds ran away. Thus
though the names of at least three
independent persons have been mentioned
by P.W.1 but none of them have been
produced in evidence.

22. Shyam Lal injured, who appeared
as P.W.2, stated in examination-in-chief
that the appellant Rajendra had fired him
on chest with intention to kill him.
However, in the cross examination he
stated that when he suffered injury, the fire
was shot on him from the side of East,
when it hit him he was going towards the
North-West. Thus if this evidence of P.W.2
injured is considered, firstly it is in
contradiction
to
his
evidence
in
examination-in-chief, secondly if the fire
was made from the east side, while he was
going towards the north-west, it could not
have hit at chest in front of his body and it
should have been on the back. Admittedly,
the incident occurred at about 7:00 in the
evening and it must have been night and
dark at that time. If there is ocular and
direct evidence in regard to the light given
by the eye witness, then the presumption
could not have been drawn by the trial
court that if certain persons were invited for
party,
there
must
have
been
some
8 All. Rajendr Yadav Vs. State of U.P.
953
arrangement of light, particularly when the
statement of injured under Section 161
Cr.P.C. was not recorded, on account of
which the appellant could not be afforded
opportunity to contradict him. Thus the
appellant is entitled for benefit of evidence
of P.W.-2. Even otherwise the conviction
may not be made solely on the evidence of
P.W.-2 in such circumstance, but it can be
considered otherwise and in the light of
other evidence and benefit of his evidence,
if any, may be in favour of the accused i.e.
the appellant.

23. The Hon'ble Supreme Court, in
the case of Balu Sudam Khalde and
Ors.
versus
The
State
of
Mahrashtra(supra), has enumerated the
judicially
evolved
principles
for
appreciation of ocular evidence in a
criminal case and as to how the evidence
of an injured eye-witness is to be
appreciated. In assessing the value of the
evidence
of
the
eyewitnesses,
two
principal considerations; firstly, whether,
in the circumstances of the case, it is
possible to believe their presence at the
scene of occurrence or in such situations
as would make it possible for them to
witness the facts deposed to by them and
secondly, whether there is anything
inherently improbable or unreliable in
their evidence. The relevant paragraphs
25, 26 and 27 are extracted here-inbelow:-

APPRECIATION
OF
ORAL
EVIDENCE

"25. The appreciation of ocular
evidence is a hard task. There is no fixed or
straight-jacket formula for appreciation of
the ocular evidence. The judicially evolved
principles
for
appreciation
of
ocular
evidence in a criminal case can be
enumerated as under:

"I.
While
appreciating
the
evidence of a witness, the approach must
be whether the evidence of the witness read
as a whole appears to have a ring of truth.
Once that impression is formed, it is
undoubtedly necessary for the Court to
scrutinize the evidence more particularly
keeping
in
view
the
deficiencies,
drawbacks and infirmities pointed out in
the evidence as a whole and evaluate them
to find out whether it is against the general
tenor of the evidence given by the witness
and whether the earlier evaluation of the
evidence is shaken as to render it unworthy
of belief. II. If the Court before whom the
witness gives evidence had the opportunity
to form the opinion about the general tenor
of evidence given by the witness, the
appellate court which had not this benefit
will have to attach due weight to the
appreciation of evidence by the trial court
and unless there are reasons weighty and
formidable it would not be proper to reject
the evidence on the ground of minor
variations or infirmities in the matter of
trivial details.

III.
When
eye-witness
is
examined at length it is quite possible for
him to make some discrepancies. But
courts should bear in mind that it is only
when discrepancies in the evidence of a
witness are so incompatible with the
credibility of his version that the court is
justified in jettisoning his evidence.

IV. Minor discrepancies on trivial
matters not touching the core of the case,
hyper
technical
approach
by
taking
sentences torn out of context here or there
from the evidence, attaching importance to
some technical error committed by the
954 INDIAN LAW REPORTS ALLAHABAD SERIES
investigating officer not going to the root of
the matter would not ordinarily permit
rejection of the evidence as a whole.

V. Too serious a view to be
adopted on mere variations falling in the
narration of an incident (either as between
the evidence of two witnesses or as
between two statements of the same
witness) is an unrealistic approach for
judicial scrutiny.

VI. By and large a witness cannot
be expected to possess a photographic
memory and to recall the details of an
incident. It is not as if a video tape is
replayed on the mental screen.

VII. Ordinarily it so happens that
a witness is overtaken by events. The
witness could not have anticipated the
occurrence which so often has an element
of surprise. The mental faculties therefore
cannot be expected to be attuned to absorb
the details.

VIII. The powers of observation
differ from person to person. What one
may notice, another may not. An object or
movement might emboss its image on one
person's mind whereas it might go
unnoticed on the part of another.

IX. By and large people cannot
accurately
recall
a
conversation
and
reproduce the very words used by them or
heard by them. They can only recall the
main purport of the conversation. It is
unrealistic to expect a witness to be a
human tape recorder.

X. In regard to exact time of an
incident, or the time duration of an
occurrence, usually, people make their
estimates by guess work on the spur of the
moment at the time of interrogation. And
one cannot expect people to make very
precise or reliable estimates in such
matters. Again, it depends on the timesense of individuals which varies from
person to person. XI. Ordinarily a witness
cannot be expected to recall accurately the
sequence of events which take place in
rapid succession or in a short time span. A
witness is liable to get confused, or mixed
up when interrogated later on.

XII. A witness, though wholly
truthful, is liable to be overawed by the
court atmosphere and the piercing cross
examination by counsel and out of
nervousness mix up facts, get confused
regarding sequence of events, or fill up
details from imagination on the spur of the
moment. The sub-conscious mind of the
witness sometimes so operates on account
of the fear of looking foolish or being
disbelieved though the witness is giving a
truthful
and
honest
account
of
the
occurrence witnessed by him.

XIII.