Emphasizing that a statement given to police during investigation under Section 161 CrPC cannot be read as “evidence”, the Supreme Court ruled that mere contradictions in two statements under Section 161 CrPC and given in examination in chief are not enough to completely discredit the witness.

The Apex Court therefore held that grievous attack by the accused on the prosecution, which resulted in death of one of the victims, would come under Exception 4 to Section 300 IPC, the attack not being premeditated, but was, “in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.”

While accepting that the incident resulted in one death and grievous injuries to another, a Two Judge Bench of Justice Sanjay Kishan Kaul and Justice Sudhanshu Dhulia observed that “No doubt statement given before police during investigation under Section 161 are “previous statements” under Section 145 of the Evidence Act and therefore can be used to cross examine a witness. But this is only for a limited purpose, to “contradict” such a witness”.

“Even if the defence is successful in contradicting a witness, it would not always mean that the contradiction in her two statements would result in totally discrediting this witness”, added the Bench.

The Bench pointed out that one cannot lose sight of the fact that second prosecution witness is an injured eye witness, and being the wife of the deceased her presence in their agricultural field on the fateful day is natural, and her statement in her examination in chief gives detail of the incident and the precise role assigned to each of the assailants.

Therefore, when this witness was put to a lengthy cross examination by the defence, some discrepancies invariably occur in such cases when we take into account the fact that this witness is a woman who resides in a village and is the wife of a farmer who tills his land and raises crops by his own hands, added the Bench.

Advocate Dr. Charu Mathur appeared for the Appellant, whereas Senior Advocates Dr. Manish Singhvi and Ramakrishan Veeraraghavan appeared for the Respondent.

The complainant (Birbal Nath) lodged an FIR alleging that while the informant’s uncle and aunt were working in their agricultural field, seven men, armed with weapons assaulted them, leading to death of informant’s uncle. After the investigation, chargesheet was filed against all the accused except Devnath in the case and the Sessions Court framed charges. The Trial Court convicted all the accused under Sections 302, 323, 324, 325, 147, 148 and 447 read with Section 149 of the Indian Penal Code, and sentenced them inter alia for rigorous imprisonment for life. The High Court, however, acquitted the accused of the charges under Sections 302 and 307 IPC, on the basis of some discrepancies.

After considering the submission, the Bench found that the High Court had discredited the star witness of the prosecution (wife of the deceased) due to her so-called discrepancies between her statement under Section 161 CrPC and in her examination-in-chief, to hold that it was not a pre-meditated attack at all and there was no case of common intention or common object of unlawful assembly, to attract Section 302 or 307 IPC.

The Bench further found that the grounds for acquitting the accused under Section 302 and Section 307 of IPC were mainly based on the presumption that it was not a pre meditated attack, rather it was a clash between two groups, where both were somewhat armed, which resulted in injuries on both sides, though somewhat larger injuries and a death, on the side of the complainant.

The Bench went on to observe that the High Court has magnified simple, doubtful and totally unexplained injuries of the accused and has belittled the brutal and murderous attack on prosecution witness and her deceased husband, and most importantly expressed serious doubt on the testimony of an injured witness, which was not correct approach.

The Apex Court therefore quashed the order of the High Court and modified the findings of Section 302 to that of Section 304 part I IPC, and that of Section 307 to Section 308 IPC, and sentenced each of the accused for seven years of rigorous imprisonment under Section 304 part I IPC and three years of rigorous imprisonment under Section 308 IPC.

Cause Title: Birbal Nath v. State of Rajasthan [Neutral Citation: 2023 INSC 957]

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Justice Sanjay Kishan KaulJustice Sudhanshu Dhulia

Pankaj Bajpai