State of H.P. v. Teku @ Kamlesh Kumar

registered the FIR (Ext.PW1/A). HC Manoj Kumar (PW7) investigated the matter. He visited the spot and prepared the site plan (Ext.PW7/A). He recorded the statements of witnesses as per the version. The challan was prepared after the completion of the investigation and presented before the Court.

3. The learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, he was charged with the commission of offences punishable under Section 341, 354 and 506 of the IPC, to which he pleaded not guilty and claimed to be tried.

4. The prosecution examined seven witnesses to prove its case. Informant (PW1) narrated the incident. The incident was told to Ravinder Singh (PW2), Pradhan, the informant’s uncle (PW3), and Sanjeev Singh (PW4). Virender Kumar (PW5) is an eyewitness. Ajay Kumar (PW6) proved that the informant was a student and had taken the exam. HC Manoj Kumar (PW7) investigated the matter. 4

5. The accused, in his statement recorded under Section 313 of the Code of Criminal Procedure (Cr.P.C.), denied the prosecution’s case in its entirety. He stated that witnesses had an inimical relationship with him due to litigation and the election. He had made a complaint against the informant’s uncle, who had falsely implicated the accused because of the enmity. He examined HHC Niku Ram (DW1) in his defence.

6. The learned Trial Court held that the informant’s testimony was credible. It was duly corroborated by the statements of Ravinder Singh (PW2), the informant’s uncle (PW3) and Virender Kumar (PW5). Enmity is a double-edged weapon and cannot be used for discarding the prosecution's case. No woman would make a false allegation involving her modesty. Hence, the learned Trial Court convicted and sentenced the accused as follows: Sections Sentences 354 of the Indian Penal Code The accused was sentenced to undergo simple imprisonment for six months, pay a fine of ₹1,000/-, and, in default of payment of fine, to undergo further simple imprisonment for one month. 506 of the Indian Penal Code The accused was sentenced to undergo simple imprisonment for one month. 5 Both the substantive sentences were ordered to be run concurrently.

7. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused filed an appeal, which was decided by the learned Sessions Judge, Kangra at Dharamshala (learned Appellate Court). The Appellate Court held that, as per the prosecution, Sanjay Kumar had accompanied the informant and the accused. Another Sanjay Kumar met the informant on the way, to whom the incident was narrated. However, the prosecution failed to examine both Sanjay Kumars. Their statements were essential to corroborate the informant’s testimony. The accused was entitled to the benefit of a doubt. Hence, the learned Appellate Court allowed the appeal and set aside the judgment and order passed by the learned Trial Court.

8. Being aggrieved by the judgment passed by the learned Appellate Court, the State has filed the present appeal asserting that the learned Appellate Court erred in acquitting the accused. The informant and Virender Kumar deposed about the incident. Ravinder Singh (PW2) and the informant’s uncle (PW3) had supported the informant’s version. The informant’s testimony that 6 she had gone to take the examination was proved by the testimony of Ajay Kumar (PW6). Learned Trial Court had rightly held that no woman would make a false allegation involving her modesty. The Appellate Court failed to appreciate this aspect. Hence, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.

9. I have heard Mr Ajit Sharma, learned Deputy Advocate General for the appellant/State and Mr Nimish Gupta, learned counsel for the respondent/accused.

10. Mr Ajit Sharma, learned Deputy Advocate General for the appellant/State, submitted that the learned Appellate Court had erred in setting aside the well-reasoned judgment passed by the learned Trial Court. Learned Appellate Court discarded the prosecution's version because Sanjay Kumar was not examined. The victim had clarified before the police in her statement recorded under Section 161 of the Cr.P.C that Virender Kumar was wrongly named by her as Sanjay Kumar. This aspect was not considered by the learned Appellate Court. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Appellate Court be set aside. 7

11. Mr Nimish Gupta, learned counsel for the respondent/accused, submitted that the informant’s testimony was not corroborated by independent evidence. She contradicted herself on material aspects, which made her testimony unreliable. A statement recorded by the police under Section 161 of the Cr.P.C is not a substantive piece of evidence and cannot be relied upon. There is no proof of the fact that Virender Kumar is also known as Sanjay Kumar. He has also not corroborated the informant’s version that the accused had molested her. Learned Trial Court had taken a reasonable view while acquitting the accused, and no interference is required with the reasonable view of the Court acquitting the accused. Hence, he prayed that the present appeal be dismissed.

12. I have given a considerable thought to the submissions made at the bar and have gone through the records carefully.

13. The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon’ble Supreme Court in Surendra Singh v. State of Uttarakhand, (2025) 5 SCC 433: 2025 SCC OnLine SC 176 that the Court can interfere with a judgment of acquittal if it is patently perverse, is based on misreading of evidence, omission to consider the material evidence and no 8 reasonable person could have recorded the acquittal based on the evidence led before the learned Trial Court. It was observed at page 438: “24. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial Judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.

14. This position was reiterated in State of M.P. v. Ramveer Singh, 2025 SCC OnLine SC 1743, wherein it was observed:

21. We may note that the present appeal is one against acquittal. Law is well-settled by a plethora of judgments of this Court that, in an appeal against acquittal, unless the finding of acquittal is perverse on the face of the record and the only possible view based on the evidence is consistent with the guilt of the accused, only in such an event, should the appellate Court interfere with a judgment of acquittal. Where two views are possible, i.e., one consistent with the acquittal and the other holding the accused guilty, the appellate Court should refuse to interfere with the judgment of acquittal. Reference in this regard may be made to the judgments of this Court in the cases of Babu Sahebagouda Rudragoudarv. State of Karnataka (2024) 8 SCC 149; H.D. Sundara v. State of Karnataka (2023) 9 SCC 581 and Rajesh Prasad v. State of Bihar (2022) 3 SCC 471.

15. A similar view was taken in Tulasareddi v. State of Karnataka, 2026 SCC OnLine SC 89, wherein it was observed: 9 “29. From the aforesaid decisions rendered by this Court, it can be said that if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the findings of acquittal recorded by the Trial Court. Further, if the view taken is a possible view, the Appellate Court cannot overturn the order of acquittal on the ground that another view was also possible. The following principles have to be kept in mind by the Appellate Court while dealing with the appeals against an order of acquittal: (a) whether the judgment of acquittal suffers from patent perversity; (b) whether the is based on misreading/omission to consider the material evidence on record; judgment (c) an order of acquittal is to be interfered with only when there are “compelling and substantial reasons” for doing so. If the order is “clearly unreasonable”, it is a compelling reason for interference.’ (d) the appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record; (e) if the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and (f) the appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.”

16. The present appeal has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 10

17. The informant specifically asserted in the FIR (Ext.PW1/A) that she had asked Sanjay Kumar and accused Tek Chand as to when they would be returning to their homes. The prosecution examined Virender Kumar (PW5) and not Sanjay Kumar. It was submitted that the informant had stated before the police in her statement recorded under Section 161 of the Cr.P.C. that the person named by her as Sanjay Kumar was, in fact, Virender Kumar. This submission will not help the prosecution. The statement recorded under Section 161 of the Cr.P.C. is not a substantive piece of evidence and cannot be used for any purpose except for contradicting a witness. It was laid down by the Hon’ble Supreme Court in Hazari Lal v. State (Delhi Admn.), (1980) 2 SCC 390: 1980 SCC OnLine SC 60 that the statement recorded by the police during the investigation cannot be used as a substantive piece of evidence. It was observed at page 394: “8. The learned counsel was right in his submission about the free use made by the courts below of statements of witnesses recorded during the course of investigation. Section 162 of the Code of Criminal Procedure imposes a bar on the use of any statement made by any person to a Police Officer in the course of investigation at any enquiry or trial in respect of any offence under investigation at the time when such statement was made, except for the purpose of contradicting the witness in the manner provided by Section 145 of the Indian Evidence Act. Where any part of such a statement is so used, any part thereof may also be used in the re-examination of the 11 witness for the limited purpose of explaining any matter referred to in his cross-examination. The only other exception to this embargo on the use of statements made in the course of an investigation relates to the statements falling within the provisions of Section 32(1) of the Indian Evidence Act or permitted to be proved under Section 27 of the Indian Evidence Act. Section 145 of the Evidence Act provides that a witness may be cross-examined as to previous statements made by him in writing and reduced into writing and relevant to matters in question, without such writing being shown to him or being proved but, that if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The courts below were clearly wrong in using as substantive evidence statements made by witnesses in the course of investigation. Shri H.S. Marwah, learned counsel for the Delhi Administration, amazed us by advancing the argument that the earlier statements with which witnesses were confronted for the purpose of contradiction could be taken into consideration by the court in view of the definition of “proved” in Section 3 of the Evidence Act, which is: “A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.” We need say no more on the submission of Shri Marwah except that the definition of proved does not enable a court to take into consideration matters, including statements whose use is statutorily barred.”

18. Therefore, it is impermissible to rely upon the informant’s statement recorded under Section 161 of the Cr.P.C. to hold that Virender Kumar is Sanjay. 12

19. The informant (PW1) stated on oath that she inquired from the accused and Sanjay Kumar whether they would accompany her. She was walking ahead while Sanjay Kumar and the accused were at some distance from her. Sanjay Kumar stopped, and the accused started walking with her. Therefore, the informant has nowhere stated in her statement on oath that she had mistakenly mentioned the name of Sanjay and that Sanjay was Virender. Thus, the conclusion drawn by the learned Appellate Court that Sanjay was not examined cannot be faulted.

20. Virender Kumar (PW5) stated that he, the accused Tek Chand and the informant were going to their homes. He stopped to urinate. The accused and the informant continued to walk. The informant returned, and he enquired about the reason, but she did not say anything. He found the informant’s bag on the spot. He and the accused went to their homes. He specifically stated in his cross-examination that he had not seen the accused molesting the informant, nor was any such fact disclosed by her.

21. His testimony does not corroborate the informant’s version. He has nowhere stated that the accused had molested the victim in his presence or that the accused had followed the informant or threatened to kill her. Therefore, even if it is believed 13 that he is the person named by the informant in the FIR, his testimony does not support the informant’s version; rather, his testimony makes the informant's version doubtful.

22. The informant stated that she had a practical exam on

19.03.2002. Ajay Kumar (PW6) stated that the informant had a Chemistry paper on 19.03.2002. Therefore, the statement of Ajay Kumar (PW6) does not support the informant’s version that she had a practical exam on 19.03.2002.

23. HC Manoj Kumar (PW7) prepared the site plan (Ext.PW7/A) mentioning that the village Rehri was at a distance of about one kilometre from the place of the incident, whereas the informant’s village was at a distance of half a kilometre. The informant claimed that she ran towards the village Rehri. This was not prudent because village Rehri was at a greater distance than her village, and any prudent person would have covered the shorter and not the longer distance.

24. The informant (PW1) stated that she went to village Rehri to her uncle’s house. Her uncle (PW3) stated in his cross- examination that he was residing in the village Baroh with his wife and children. Village Rehri is located at a distance of four 14 kilometres. He was in his home at Baroh. The informant’s college was also located in Baroh. Thus, as per the version of this witness, he was residing in the village Baroh, and the informant had visited him at Baroh. This contradicts the informant’s version that she had gone to her uncle’s house at Rehri. Further, the informant had returned from Baroh and would not have returned to the same place when her village was merely at a distance of half a kilometre.

25. Informant’s uncle (PW3) stated in his cross- examination that the informant visited his house at about 4:00- 4:30 PM. This is contrary to the prosecution's version because the informant’s exam/practical was over at 5:00 p.m., and the informant could not have visited her uncle’s house between 4:00 and 4:30 p.m., that too in the village Baroh.

26. The informant stated in the FIR (Ext.PW1/A) that the boys of Rehri had brought her bag, dupatta and notebook. She stated on oath that she told the boys of village Rehri that her Dupatta and bag had been left at the spot, and those should be brought. The informant’s uncle (PW3) stated that he went to the spot and found the books and the purse of the informant, and he brought them with him. Therefore, the version regarding the bringing of the informant’s belongings is also contradictory. 15

27. It was submitted that the testimonies of the informant’s uncle and Ravinder Singh (PW2) corroborate the informant’s version. This submission will not help the prosecution. The incident was narrated to Ravinder Singh (PW2) on the next day by the informant, and her statement will not fall within the purview of Section 6 of the Indian Evidence Act. The statement of the informant’s uncle is highly doubtful, as noticed above, because he was in village Baroh, whereas the informant had visited him in village Rehri. Therefore, the corroboration cannot be sought from the statements of the informant’s uncle and Ravinder Singh (PW2).

28. It was laid down by the Hon’ble Supreme Court in Krishnan v. State, (2003) 7 SCC 56: 2003 SCC (Cri) 1577: 2003 SCC OnLine SC 756 that the evidence of the prosecution must be tested for its inherent consistency: consistency with the account of other witnesses and consistency with undisputed facts. It was observed: “21. …. Witnesses, as Bentham said, are the eyes and ears of justice. Hence, the importance and primacy of the quality of the trial process. Eyewitnesses' accounts would require a careful, independent assessment and evaluation for their credibility, which should not be adversely prejudged, making any other evidence, including the medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; 16 consistency with the undisputed facts, the “credit” of the witnesses; their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.”

29. It was held in David Piper vs Mark Hales 2013 EWHC B1 (QB) that the Court has to see whether the statement of the witness is consistent or not. It was observed: -

34. The guidance about how courts approach this is given in the extra-judicial writing of the late Lord Bingham of Cornhill, approved by the courts, and is apposite. In "The Judge as Juror: The Judicial Determination of Factual Issues", published in "The Business of Judging", Oxford 2000, reprinted from Current Legal Problems, vol 38, 1985, p 1-27, he wrote: ". . . Faced with a conflict of evidence on an issue substantially affecting the outcome of an action, often knowing that a decision this way or that will have momentous consequences on the parties' lives or fortunes, how can and should the judge set about his task of resolving it? How is he to resolve which witness is honest and which dishonest, which reliable and which unreliable? The normal first step in resolving issues of primary fact is, I feel sure, to add to what is common ground between the parties (which the pleadings in the action should have identified but often do not) such facts as are shown to be incontrovertible. In many cases, letters or minutes written well before there was any breath of dispute between the parties may throw a very clear light on their knowledge and intentions at a particular time. In other cases, evidence of tyre marks, debris or where vehicles ended up may be crucial. To attach importance to matters such as these, which are independent of human recollection, is so obvious and 17 standard a practice, and in some cases so inevitable, that no prolonged discussion is called for. It is nonetheless worth bearing in mind, when vexatious conflicts of oral testimony arise, that these fall to be judged against the background not only of what the parties agree to have happened but also of what plainly did happen, even though the parties do not agree. The most compendious statement known to me of the judicial process involved in assessing the credibility of an oral witness is to be found in the dissenting speech of Lord Pearce in the House of Lords in Onassis v Vergottis [1968] 2 Lloyds Rep 403at p 431. In this, he touches on so many of the matters which I wish to mention that I may perhaps be forgiven for citing the relevant passage in full: ''Credibility' involves wider problems than mere 'demeanour', which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias, wishful thinking or by too much discussion of it with others? Witnesses, especially those who are emotional and who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes, the memory becomes fainter, and the imagination becomes more 18 active. For that reason, a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point, it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process, contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part." Every judge is familiar with cases in which the conflict between the accounts of different witnesses is so gross as to be inexplicable save on the basis that one or some of the witnesses are deliberately giving evidence which they know to be untrue . . .. more often dishonest evidence is likely to be prompted by the hope of gain, the desire to avert blame or criticism, or misplaced loyalty to one or other of the parties. The main tests needed to determine whether a witness is lying or not are, I think, the following, although their relative importance will vary widely from case to case: (1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred; (2) the internal consistency of the witness's evidence; (3) consistency with what the witness has said or deposed on other occasions; 19 (4) the credit of the witness in relation to matters not germane to the litigation; (5) the demeanour of the witness. The first three of these tests may, in general, be regarded as giving a useful pointer to where the truth lies. If a witness's evidence conflicts with what is clearly shown to have occurred or is internally self- contradictory, or conflicts with what the witness has previously said, it may usually be regarded as suspect. It may only be unreliable and not dishonest, but the nature of the case may effectively rule out that possibility. The fourth test is perhaps more arguable. . . ."

35. The following guidance of Lord Goff in Grace Shipping v. Sharp & Co [1987] 1 Lloyd's Law Rep. 207 at 215-6 is also helpful. "And it is not to be forgotten that, in the present case, the Judge was faced with the task of assessing the evidence of witnesses about telephone conversations which had taken place over five years before. In such a case, memories may very well be unreliable, and it is of crucial importance for the Judge to have regard to the contemporary documents and the overall probabilities. In this connection, their Lordships wish to endorse a passage from a judgment of one of their number in Armagas Ltd v. Mundogas S.A. (The Ocean Frost), [1985] 1 Lloyd's Rep. 1, when he said at p. 57: - "Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not, and where there is a conflict of evidence, such as there was in the present case, 20 reference to the objective facts and documents, to the witnesses' motives, and the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth." [emphases added]. That observation is, in their Lordships' opinion, equally apposite in a case where the evidence of the witnesses is likely to be unreliable, and it is to be remembered that in commercial cases, such as the present, there is usually a substantial body of contemporary documentary evidence." In that context, he was impressed by a witness described in the following terms. "Although, like the other main witnesses, his evidence was a mixture of reconstruction and original recollection, he took considerable trouble to distinguish precisely between the two, to an extent which I found convincing and reliable." That is so important and so infrequently done."

36. This approach to fact-finding was amplified recently by Lady Justice Arden in the Court of Appeal in Wetton (as Liquidator of Mumtaz Properties) v. Ahmed and others [2011] EWCA Civ 610, in paragraphs 11, 12, & 14:

11. By the end of the judgment, it is clear that what impressed the judge most in his task of fact-finding was the absence, rather than the presence, of contemporary documentation or other independent oral evidence to confirm the oral evidence of the respondents to the proceedings.

12. There are many situations in which the court is asked to assess the credibility of witnesses from their oral evidence, that is to say, to weigh up their evidence to see whether it is reliable. Witness choice is an essential part of the function of a trial judge, and he or she has to decide whose evidence and how much evidence to accept. This task is not to be carried out merely by reference to the impression that a witness made by giving evidence in the witness box. It is not solely a matter of body language or the tone of voice or 21 other factors that might generally be called the 'demeanour' of a witness. The judge should consider what other independent evidence would be available to support the witness. Such evidence would generally be documentary, but it could be other oral evidence, for example, if the issue was whether a defendant was an employee, the judge would naturally consider whether there were any PAYE records or evidence, such as evidence in texts or e-mails, in which the defendant sought or was given instructions as to how he should carry out work. This may be particularly important in cases where the witness is from a culture or way of life with which the judge may not be familiar. These situations can present particular dangers and difficulties to a judge.

14. In my judgment, contemporaneous written documentation is of the very greatest importance in assessing credibility. Moreover, it can be significant not only where it is present, but the oral evidence can then be checked against it. It can also be significant if written documentation is absent. For instance, if the judge is satisfied that certain contemporaneous documentation is likely to have existed were the oral evidence correct, and that the party adducing oral evidence is responsible for its non-production, then the documentation may be conspicuous by its absence, and the judge may be able to draw inferences from its absence.

37. Contemporaneity, consistency, probability and motive are key criteria and more important than demeanour, which can be distorted through the prism of prejudice: how witnesses present themselves in a cramped witness box surrounded for the first time with multiple files can be distorted, particularly elderly ones being asked to remember minute details of what happened and what was said, and unrecorded, nearly 4 years later as here. Lengthy witness statements prepared by the parties' lawyers long after the events also distort the accurate picture, even though they are meant to assist the court.” 22

30. In the present case, the prosecution’s version was not consistent, and the learned Appellate Court was justified in doubting it.

31. Therefore, the learned Appellate Court had taken a reasonable view while acquitting the accused, and this Court will not interfere with the reasonable view of the Court acquitting the accused, even if another view is possible.

33. No other point was urged. In view of the above, the present appeal fails, and the same is dismissed, and so are the pending miscellaneous applications, if any.

34. In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023) the respondents/accused are directed to furnish bail bonds in the sum of ₹25,000/- each with one surety each in the like amount to the satisfaction of the learned Trial Court within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the respondents/accused on 23 receipt of notice thereof, shall appear before the Hon’ble Supreme Court.

35. A copy of the judgment, along with records of the learned Trial Court, be sent back forthwith. 22nd June, 2026 (Nikita) (Rakesh Kainthla) Judge