Supreme Court of India

BIRBAL NATHversusTHE STATE OF RAJASTHAN & ORS

Citation: 2023 INSC 957
Decided: 30 October 2023
Disposal: Appeal(s) allowed
Bench: SANJAY KISHAN KAUL

Holding

The High Court’s acquittal on the basis of contradictions in the injured eye‑witness’s statements was erroneous; the case constitutes culpable homicide not amounting to murder and the convictions under Sections 302 and 307 are to be substituted with Sections 304 Part I and 308 respectively.

Summary

The case arose from an armed assault on Birbal Nath's uncle and aunt in a Rajasthan field, resulting in the uncle's death and injuries to the aunt, an injured eye‑witness. The trial court convicted the six accused under Sections 302, 307 and related offences, but the Rajasthan High Court acquitted them of the murder and attempted murder charges, relying on contradictions between the eye‑witness’s statement to police (s.161 CrPC) and her testimony in court. On appeal, the Supreme Court examined the credibility of the injured eye‑witness, held that minor discrepancies do not automatically discredit a witness, and considered the relevance of other eyewitnesses, recovered weapons and forensic evidence. The Court concluded that the incident amounted to culpable homicide not amounting to murder, not a pre‑meditated murder, and that the High Court had erred in its assessment of common intention. Consequently, the convictions under Sections 302 and 307 were substituted with Sections 304 Part I and 308, and appropriate sentences were imposed. The appeals were allowed and the High Court order set aside.

Issues considered

The High Court’s reliance on contradictions in the injured eye‑witness’s statements to acquit the accused of Sections 302 and 307 IPC.
Whether contradictions in a witness’s prior statement (s.161 CrPC) and trial testimony are sufficient to discredit the witness under Sections 145 and 155 of the Evidence Act.
The appropriate classification of the offence: murder versus culpable homicide not amounting to murder, and the applicability of Section 300 Exception 4.
The existence of common intention or common object under Section 149 IPC among the accused.

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 162, s. 313
Indian Evidence Act, 1872s. 145, s. 155
Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 300 Exception 4, s. 302, s. 304 Part I, s. 307, s. 308, s. 323, s. 324, s. 325, s. 447

Subjects

Culpable homicide not amounting to murderWitness credibilityContradictory statementsSection 161 CrPCSection 145 Evidence ActPremeditated attackCommon intentionSection 302 IPCSection 304 IPCSection 307 IPCSection 308 IPCCriminal appealEvidence evaluation

Judgment

[2023] 14 S.C.R. 85 : 2023 INSC 957

CASE DETAILS

BIRBAL NATH
v.
THE STATE OF RAJASTHAN & ORS
(Criminal Appeal No. 1587 of 2008)
OCTOBER 30, 2023
[SANJAY KISHAN KAUL AND SUDHANSHU DHULIA, JJ.]

HEADNOTES

Issue for consideration: Whether the High Court was justiﬁed in
acquitting the accused for the major oﬀences u/ss. 302 and 307 IPC, and
convicting them only for the oﬀences u/ss. 147, 148, 323, 324, 325/149
and reducing their sentences to the period already undergone by them; and
whether contractions in the two statements of the injured eye witness, one
given to police u/s.161 Cr.PC., and the other given before the court, would
be suﬃcient to discredit a witness.
Penal Code, 1870 – ss. 304 Part I, 308, 147, 148, 323, 324, 325/149 –
Culpable homicide not amounting to murder – First Information Report
by the complainant that seven armed men assaulted his uncle and
aunt while they were working in their agricultural ﬁeld, causing them
grievous injuries, resulting in the death of the uncle – Incident witnessed
by several relatives who tried to intervene but failed – Conviction and
sentence for the oﬀences u/ss. 302, 307, 323, 324, 325, 447, 147/148 read
with s. 149 – However, the High Court acquitted them for the major
oﬀences u/ss. 302 and 307, and were convicted only for the oﬀences u/
ss. 147, 148, 323, 324, 325/149 – Correctness:
Held: This case is of culpable homicide not amounting to murder,
and not of murder – Injuries sustained by the assailants could not be proved
in the trial, defence witness stood thoroughly discredited – There were
contradictions in the two statements of an injured eye witness – These
contradictions, however, are not enough to completely discredit this witness,
she is a reliable witness – Some discrepancies invariably occur in such

85
86 SUPREME COURT REPORTS [2023] 14 S.C.R.

cases taking into account her rural back ground – Reasons assigned for
disbelieving the statement of the eye witness by the High Court not correct
– Apart from this eye-witness, there were other eyewitnesses as well – Also
recovery of the weapons and the blood-stained cloth of the accused – In
view of these contradictions, beneﬁt of doubt given to the accused – As
regards premeditated attack, the attack would come u/s.300 Exception 4,
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” – Thus, the approach of
the High Court was not correct – Order of the High Court set aside and
quashed – Conviction u/s. 302 converted to that of s. 304 Part I and that
of s.307 to s. 308 and are sentenced accordingly – Case abates against the
accused who expired. [Para 27-32]
Witness – Contractions in the two statements, one given to police
u/s.161 Cr.PC., and the other given before the court – Credibility:
Held: Contractions in the two statements may or may not be suﬃcient
to discredit a witness – s. 145/155 of the 1872 Act, have to be carefully
applied in a given case – Purpose of the cross examination of a witness is
to bring contradictions in the two statements of the witness – Rural setting,
the degree of articulation of such a witness in a court of law are relevant
considerations while evaluating the credibility of such witness – Lengthy
cross-examination of witness may invariably result in contradictions –
However, these contradictions not always suﬃcient to discredit a witness
– Evidence Act, 1872 – ss. 145/155. [Paras 20 and 22]
Witness – Injured eye-witness – Evidentiary value:
Held: Statement of an injured eye-witness is an important piece of
evidence which cannot be easily discarded by a Court – Minor discrepancies
do not matter. [Para 26]
Code of Criminal Procedure, 1963 – s. 161 – Statement given to
police during investigation under – Evidentiary value:
Held: Cannot be read as an “evidence” – It has limited applicability
in a court of law as prescribed u/s. 162 – No doubt statement given before
police during investigation u/s. 161 are previous statements u/s 145 of the
Evidence Act and thus can be used to cross examine a witness – But only
BIRBAL NATH v. THE STATE OF RAJASTHAN & ORS 87

for limited purpose, to “contradict” such witness – Even if the defence is
successful in contradicting a witness, it would not always mean that the
contradiction in the two statements would result in totally discrediting the
witness. [Paras 18 and 19]

LISTS OF CITATIONS AND OTHER REFERENCES

Rammi v. State of M.P. (1999) 8 SCC 649: [1999] 3 Suppl. SCR 1;
Tahsildar Singh v. State of U.P. AIR 1959 SC 1012: [1959] Suppl. SCR
875; State of M.P. vs. Mansingh and Others (2003) 10 SCC 414: [2003] 2
Suppl. SCR 460 – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.1587 of 2008.
From the Judgment and Order dated 08.08.2007 of the High Court of
Rajasthan at Jodhpur in DBCA No.976 of 2002.
With
Criminal Appeal No.1588 of 2008.
Appearances:
Dr. Manish Singhvi, Ramakrishan Veeraraghvan Sr. Advs., Ms.
Shubhangi Agarwal, Apurv S., Milind Kumar, Dr. Charu Mathur, P. D.
Sharma, H. D. Thanvi, Nikhil Kumar Singh, Achal Singh Bule, Mahendra
Singh, Rishi Matoliya, Advs. for the appearing parties.
JUDGMENT / ORDER OF THE SUPREME COURT

JUDGMENT

SUDHANSHU DHULIA, J.
1. Both the above appeals arise out of the judgment and order dated
08.08.2007 passed by the Rajasthan High Court in Criminal Appeal No.976
of 2002, whereby all the accused who stood convicted by the Trial Court
for the oﬀences under Sections 302, 307, 323, 324, 325, 447, 147 /148 read
88 SUPREME COURT REPORTS [2023] 14 S.C.R.

with Section 149 of Indian Penal Code, were acquitted for the major oﬀences
under Sections 302 and 307, and were convicted only for the oﬀences under
Sections 147, 148, 323, 324, 325/149. Their sentences were also reduced
to the period already undergone by them, which roughly varied from two
to ﬁve years.
2. The complainant as well as the State have approached this Court by
way of the above two appeals, which were admitted and leave was granted
on 26.09.2008.
3. We have heard learned counsel for the appellant, Dr. Charu Mathur
for the victims and Dr. Manish Singhvi, learned senior advocate for State
of Rajasthan respectively, as well as senior advocate Mr. Ramakrishan
Veeraraghavan on behalf of the accused-respondents.
4. An FIR was lodged on 22.05.2001 at about 3.00 PM by complainant-
Birbal Nath at Police Station, Pachori, District Nagaur, Rajasthan which
disclosed that at about 1:00 o’clock that afternoon, while the informant’s
uncle ‘Chandernath’ and his aunt ‘Rami’ were working in their agricultural
ﬁeld, seven men, armed with weapons approached their ﬁeld. They were as
follows :-
(1) Jethnath having an ‘axe’
(2) Dhurnath having a ‘dang’
(3) Meghnath having a ‘farsi’
(4) Rughnath having Favda (Shovel)
(5) Babunath having a ‘dang’
(6) Malanath having an ‘axe’ and
(7) Devnath having a ‘dang’
All the above named accused, who were armed, started assaulting the
aunt and uncle of the complainant-Birbalnath, in which both were grievously
injured. Jethnath was the ﬁrst to assault Chandernath with his axe and the
rest joined the attack. Rami was also attacked, by these assailants. This
incident was also witnessed by Pratapnath, Ramunath, Dhurnath, their
sister-in-law Rampyari, Cheni Devi and Ruparam as they had reached the
spot in a few minutes, who tried to intervene in the matter and save their
BIRBAL NATH v. THE STATE OF RAJASTHAN & ORS 89
[SUDHANSHU DHULIA, J.]

relatives, but in vain. Chandernath died in the ambulance while being taken
to the hospital at Jodhpur. Meanwhile the police started its investigation, and
ﬁled its chargesheet against all the accused except Devnath in the case. The
case was later committed to the Sessions Court where charges were framed
under Sections 147, 148, 302, 323/149, 324/149, 325/149, 447, 307/149 of
the Indian Penal Code against all the six accused, named in the chargesheet.
5. There were in all 24 witnesses who were examined by the
prosecution. The star eye witness being Rami (PW-2) who is the wife of
the deceased and was herself grievously hurt in the incident. Apart from her
there were other eye witnesses as well such as PW-3, PW-6 and PW-7 i.e.,
Rampyari, Mohannath, Birbalnath respectively. There was also recovery of
clothes and weapons which was made on the disclosure of the accused.
6. In their statement under Section 313 of CrPC, all the accused
denied the charges and the evidence against them and also presented
defence witnesses in the form of – Birmaram (DW-1), Hanutaram (DW-2),
Khemaram (DW-3), Dr. Devkaran (DW-4) and Hukmaram (DW-5).
7. Out of all the prosecution witnesses which were examined by the
prosecution, Rami (PW-2) is the most important witness, as she was the wife
of the deceased and at the relevant point of time was working in the ﬁeld,
along with her husband. In addition, this witness had sustained grievous
injuries in the incident, including a near fatal injury on her head and therefore
the testimony of this particular witness is the most credible evidence
produced by the prosecution before the Trial Court. The examination-in-
chief and cross examination of Rami was done before the Trial Court on
27.11.2001. She was cross examined at length by the defence, but nothing
has come out in the cross examination, except minor discrepancies. These
discrepancies as we shall be examining later do not discredit the witness
as has been held by the High Court. The social background and the overall
surrounding circumstances of the case are important considerations for
the court while examining a witness, which has not been done. The High
Court, as we shall see, has relied on these discrepancies, while acquitting
the accused of the charges under Sections 302 & 307.
8. In her examination-in-chief PW-2 consistently held the position that
she and her husband were working on their ﬁeld, and each of the accused
was armed with either ‘axe’, ‘farsi’ or other weapon and that they were
90 SUPREME COURT REPORTS [2023] 14 S.C.R.

seven in number, who assaulted her and her husband. It was Jethnath who
attacked on head with axe, Meghnath with ‘fawda’, Dhurnath with ‘dang’ on
the head of her husband, Raghunath assaulted him with ‘fawda’ 1, Malanath
attacked her husband with an axe, as did Raghunath and Babunath. All of
them had attacked her as well, and as a result she sustained injuries on her
head, left hand, right hand, joints and legs. Her husband too had injuries on
his head, hands and legs. His hand and legs were fractured. When she raised
an alarm, Pratapnath, Rampyari, Cheni, Ramnath, Birbalnath, Dudhnath,
Purkharam and Ruparam came running to the spot and tried to save them.
Chandernath her husband died on the way to the hospital at Jodhpur. She
(PW-2) was given medical treatment and was examined by a doctor.
9. Rampyari (PW-3) who is again a witness to the incident states that
on the fateful day at about 1.00 o’clock in the afternoon she heard someone
crying for help. She recognised the voice of Rami and Chandernath and then
she immediately ran towards the ﬁeld. Chena, Birbalnath, Dudhnath and
Purkharam were also with her. They saw Jethnath, Dhumnath, Meghnath,
Rughnath, Babunath, Malanath and Devnath, all armed with either axe,
farsi, dang and “fawda”. They were all attacking Chandernath. On seeing
them the accused ran away from the spot. They saw Chandernath lying on
his belly and was bleeding, and so was Rami. There were injuries on her
head and ear.
10. Dr. Ramvilas who was examined as (PW-4) conﬁrmed that the
deceased died due to injuries particularly the injuries sustained on his
head. Apart from Rami (PW-2) and Rampyari (PW-3) there are other eye
witnesses as well (PW-6 and PW-7), who had reached the spot after they
heard an alarm raised by Rami. The ‘site plan’ shows that the “chapper” of
these witnesses is nearby and hence the fact that these witnesses were in
the neighbourhood was rightly held by the Trial Court, and their presence
seemed natural.
11. PW-6 and PW-7 had again made similar depositions as PW-3,
being in the neighbourhood at the time of the incident. Though it may be
doubtful whether they had witnessed the entire sequence of events, yet
they had deﬁnitely seen the assailants ﬂeeing from the place of occurrence.

1 Shovel
BIRBAL NATH v. THE STATE OF RAJASTHAN & ORS 91
[SUDHANSHU DHULIA, J.]

These are also important witnesses though the High Court has said nothing
on their deposition.
12. The post mortem of the body was conducted on 23.05.2001. The
post mortem report shows the following ante mortem injuries:
“(i): Lacerated wound in the size of 1 ½” X ½” bone deep over the
left parietal region of scalp. There is depressed podium of left
parietal bone.
(ii): Lacerated wound in the size of 1” X ¼” bone deep over right
parietal region of scalp. There is puncture/fracture of right parietal
bone.
Pupils = Dilated, haggy.
(iii): Lacerated wound in the size of ¾” X ¼” bone deep over occipital
region of scalp. There is puncture of occipital bone on skull.
(iv): Lacerated wound in the size of ½” X 1/8” bone deep, huge
contusion over upper part of left leg. There is fracture of upper
1/4th portion of tibia and ﬁbula bone.
(v): Lacerated wound in the size of ½” X ¼” deep to bone and
quitesome swelling had developed near at the wound. This wound
was in the lower left leg. There was fracture in lower end of tibia
and ﬁbula bones.
(vi): Swelling in medium size had developed towards the upper side of
the right hand and therein there was fracture of ﬁrst meta-carpal
bone.
…..
…..
In my opinion, cause of death of Chander Nath s/o Gopunath is Head-
Injury and brian haemorrhage.”
13. The injuries sustained by Rami as per her injury report dated
22.05.2001 is as follows:
1. Incised wound in the size of 2 ½” x ½” x bone deep, deep/over
anterior portion of scalp trans-vertically placed, simple in nature;
Advised for X-Ray Report, by Sharp weapon.
92 SUPREME COURT REPORTS [2023] 14 S.C.R.

2. As deﬁned swelling on right arm upto shoulder; advised for
X-ray, simple in nature, by blunt object.
3. Bruise in the size of 1 ½” x ½” over lower part of left thigh,
lower side, simple in nature, by blunt object.
4. Bruise in the size of 1 ½” x ½” on middle of left arm laterally,
simple in nature, by blunt object.
5. Bruise in the size of 4” x 1” over lower back, simple in nature,
by blunt object.
14. The Trial Court convicted all the accused under Sections 302,
323, 324, 325, 147, 148, 447 read with Section 149 of Indian Penal Code,
and sentenced them inter alia for rigorous imprisonment for life. Jethnath,
Dhurnath and Meghnath in addition were also convicted under Section 307
of IPC.
15. The accused ﬁled an appeal before the High Court which was partly
allowed, as discussed above.
16. The statement given by PW-2 before the Police under Section
161 Cr.PC, during investigation were relied by the defence in order to
contradict the witness as to her statement in her examination-in-chief. The
witness in her earlier statement before the police, had said that the accused
Jethnath was working on his adjacent ﬁeld and he had some altercation
with the deceased regarding their boundary in which heated arguments
were exchanged between the two. Jethnath, then, raised an alarm which
resulted in his sons and relatives coming to the spot, who were all armed
with weapons. It is true that this fact of Jethnath working in the ﬁeld and
the altercation she did not state in her examination-in-chief. The High Court
thus ﬁnds a discrepancy in the statement of PW-2 made under section 161
Cr.PC and her examination-in-chief, which it believes to be suﬃcient to
discredit this witness.
17. As we have already stated this particular witness i.e. PW-2 is
an injured witness and wife of the deceased, who has given her clear and
unambiguous statement in her examination-in-chief and though she was
cross-examined at length this witness stood her ground. Moreover, it is her
husband who has been killed by the assailants. Why should she be accusing
BIRBAL NATH v. THE STATE OF RAJASTHAN & ORS 93
[SUDHANSHU DHULIA, J.]

wrong persons? The High Court discredits the star witness of the prosecution
due to her so called discrepancies between her statement under Section
161 Cr.PC and in her examination-in-chief. It then holds that it was not a
pre-meditated attack at all and therefore no case of common intention or
common object of unlawful assembly is made out nor will it be a case for
Section 302 or 307. This is what was said :--
“First and foremost , the question which we require to look into is
whether the beginning of the story, as given by the prosecution, is
reliable or not. According to the eye witness’ account the accused
arrived at the scene of occurrence and they assaulted the deceased on
his head and he fell down by the head injuries caused by Jeth Nath
and then the other accused persons caused injuries. Jeth Nath having
been assigned an axe and there being no axe injury, the beginning of
the story as given by the prosecution witness, PW/2 Rami injured eye
witness, does not appear to be correct.
In that view or the matter, if we consider the contradiction in her
statement that in her police statement she has stated that things started
with the handling or the thorn fencing on the boundary wall, it was a
case where both the parties got enraged on the spur of the moment and
there was no pre-meditation . If there was no pre-meditation, then there
was no pre-motive to kill the deceased before the incident started, then
it is diﬃcult to conclude that there was a common object to eliminate
the deceased. If there was no common object then conviction under
sections 302/149 IPC is not made out and in that view of the matter, the
conviction and sentence of accused persons deserves to be set aside.”
18. Statement given to police during investigation under Section 161
cannot be read as an “evidence”. It has a limited applicability in a Court of Law
as prescribed under Section 1622 of the Code of Criminal Procedure (Cr.P.C.).

2 Section 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 or 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:
94 SUPREME COURT REPORTS [2023] 14 S.C.R.

19. 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. It is here that we feel that the learned judges of the High Court
have gone wrong.
20. The contractions in the two statements may or may not be
suﬃcient to discredit a witness. Section 145 read with Section 155 of
the Evidence Act, have to be carefully applied in a given case. One
cannot lose sight of the fact that PW-2 Rami is an injured eye witness,
and being the wife of the deceased her presence in their agricultural ﬁeld
on the fateful day is natural. Her statement in her examination in chief
gives detail of the incident and the precise role assigned to each of the
assailants. 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. In other words, they are not big farmers. The rural
setting, the degree of articulation of such a witness in a Court of Law are
relevant considerations while evaluating the credibility of such a witness.
Moreover, the lengthy cross examination of a witness may invariably
result in contradictions. But these contradictions are not always suﬃcient
to discredit a witness. In Rammi v. State of M.P. (1999) 8 SCC 649, this
Court had held as under:

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.
BIRBAL NATH v. THE STATE OF RAJASTHAN & ORS 95
[SUDHANSHU DHULIA, J.]

“24. When an eyewitness is examined at length it is quite possible
for him to make some discrepancies. No true witness can possibly
escape from making some discrepant details. Perhaps an untrue
witness who is well tutored can successfully make his testimony totally
non-discrepant. 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. But 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.”
In the same case, how far a contradiction in the two statements can be
used to discredit a witness has also been discussed.
“25. It is a common practice in trial courts to make out contradictions
from the previous statement of a witness for confronting him during
cross-examination. Merely because there is inconsistency in evidence
it is not suﬃcient to impair the credit of the witness. No doubt Section
155 of the Evidence Act provides scope for impeaching the credit of
a witness by proof of an inconsistent former statement. But a reading
of the section would indicate that all inconsistent statements are not
suﬃcient to impeach the credit of the witness. The material portion
of the section is extracted below:
“155. Impeaching credit of witness.—The credit of a witness may be
impeached in the following ways by the adverse party, or, with the
consent of the court, by the party who calls him—
(1)-(2)***
(3) by proof of former statements inconsistent with any part of his
evidence which is liable to be contradicted;”
26. A former statement though seemingly inconsistent with the evidence
need not necessarily be suﬃcient to amount to contradiction. Only
such of the inconsistent statement which is liable to be “contradicted”
would aﬀect the credit of the witness. Section 145 of the Evidence Act
also enables the cross-examiner to use any former statement of the
witness, but it cautions that if it is intended to “contradict” the witness
96 SUPREME COURT REPORTS [2023] 14 S.C.R.

the cross-examiner is enjoined to comply with the formality prescribed
therein. Section 162 of the Code also permits the cross-examiner to use
the previous statement of the witness (recorded under Section 161 of
the Code) for the only limited purpose i.e. to “contradict” the witness.”
21. In Tahsildar Singh v. State of U.P., AIR 1959 SC 1012, it was
held that to contradict a witness would mean to “discredit” a witness.
Therefore, unless and until the former statement of this witness is capable
of “discrediting” a witness, it would have little relevance. A mere variation
in the two statements would not be enough to discredit a witness. This has
been followed consistently by this Court in its later judgment, including
Rammi (supra). Moreover, in this case the High Court lost sight of other
more relevant factors such as the witness being an injured eye witness.
22. The purpose of the cross examination of a witness in terms of
Section 145 and 155 of the Evidence Act is to bring contradictions in the
two statements of the witness, in the case at hand, one given to police under
Section 161 Cr.PC., and the other given before the court. Even assuming
for the sake of argument that there is a diﬀerence in the two statements of
PW-2 as she evidently does not disclose in her examination-in-chief that
Jethnath was also working in the adjacent ﬁeld and there was altercation
between the two, this may discredit the witness only so far as the beginning
of the incident; how it started. The fact that the incident happened is not
in doubt. The oﬀenders were the accused is also not in doubt. There is no
doubt that the incident took place, which resulted in one death and grievous
injuries to another. It may not have happened exactly as narrated by PW-2,
yet for this discrepancy the entire testimony of PW-2 cannot be discarded.
23. The so called injuries sustained by two of the assailants, Meghnath
and Jethnath, were again relied upon by the High Court to reach a ﬁnding
that this case could be the case of free ﬁght between the two parties which
was not pre-meditated particularly where both sides had sustained injuries!
24. In our opinion, the High Court has given undeserved credit to
the evidence placed by the defence in this regard. The Trial Court on the
other hand had examined this aspect in detail and ultimately did not ﬁnd
the evidence placed by defence as credible. It is not very diﬃcult for us to
appreciate why this was done. To prove that the accused too had sustained
injuries in the incident, the defence had produced DW-4 Dr. Devkaran as their
BIRBAL NATH v. THE STATE OF RAJASTHAN & ORS 97
[SUDHANSHU DHULIA, J.]

witness. This witness is a Government Doctor, and was under suspension at
the time of his deposition, and from his own statement before the Trial Court
this was so because he was charged of giving a post mortem report, though
he had not conducted any post mortem. So much for the credibility of this
witness. He was cross examined by the prosecution as to the overwriting
and mistakes in his medical report. He denies having made the changes
in the report. The Trial Court held that the medical report of this witness
(DW-4) to be “suspicious”, for the reasons that there was no explanation
as to how the two accused had sustained these injuries. The only proof of
injuries suﬀered by Jethnath was that there was a mention of these injuries
in his arrest memo, when it was mentioned as ‘abrasion on hand’. This the
Trial Court rightly held could be caused due to the force this assailant had
exerted in attacking the deceased. Moreover, the injuries were in any case
simple in nature.
25. The High Court, though examines this aspect in a totally diﬀerent
perspective. It has magniﬁed simple, doubtful and totally unexplained
injuries of the accused and has belittled the brutal and murderous attack on
PW-2 and her deceased husband, and most importantly expressed serious
doubt on the testimony of an injured witness, i.e., PW-2. This approach of
the High Court in our considered opinion was not correct.
26. The High Court has gone wrong in its appreciation of the case,
both on facts as well as on law. The statement of an injured eye-witness
is an important piece of evidence which cannot be easily discarded by a
Court. Minor discrepancies do not matter. In State of M.P. vs. Mansingh
and Others (2003) 10 SCC 414 where conviction of the accused by the trial
court, inter alia, under Section 302, was set aside by the High Court on the
so called discrepancies of an injured witness this court while allowing the
State’s appeal against the acquittal said this :
“9. The evidence of injured witness has greater evidentiary value
and unless compelling reasons exist, their statements are not to be
discarded lightly. Merely because there was no mention of a knife
in the ﬁrst information report, that does not wash away the eﬀect of
the evidence tendered by the injured witnesses PWs 4 and 7. Minor
discrepancies do not corrode the credibility of an otherwise acceptable
evidence. The circumstances highlighted by the High Court to attach
98 SUPREME COURT REPORTS [2023] 14 S.C.R.

vulnerability to the evidence of the injured witnesses are clearly
inconsequential.”
27. The reasons assigned for disbelieving the statement of PW-2 by
the High Court are not correct. The High Court discredits the statement
of PW-2 because of the discrepancies in her earlier statement given under
Section 161 Cr.P.C., and the one given in her examination-in-chief. This as
we have already discussed was not suﬃcient to totally discredit an injured
eye witness. Apart from this eye-witness, there were other eye-witnesses
as well, which we have referred above. Further, there is also the recovery
made of the weapons and the blood-stained cloth of the accused. There is
nothing to doubt either the recovery or the manner in which the recovery
has been made. The conclusion derived by the High Court that the assailants
were not having common intention or common object of killing deceased
Chandernath is not entirely correct.
28. The grounds for acquitting the accused under Section 302 &
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. This
determination of the High Court is based on primarily on two aspects, ﬁrst
that the assailants too had sustained injuries and secondly the discrepancies
in the evidence of PW-2.
29. As far as the injuries sustained by some of the accused is concerned
this could never be proved in the trial. DW-4 who was produced as a witness
stood thoroughly discredited and rightly so, as we have discussed in the
preceding paragraphs. As to the so-called discrepancies in the statement of
PW-2 we are again of the view that this witness is an injured eye witness
and therefore her evidence cannot be completely disregarded.
30. Having said this, however, we are also of the opinion that the
possibility of the incident not being premeditated, cannot be totally
disregarded, considering the overall ‘circumstances’ of the case, as urged
before us and even considering the contradictions in the two statements of
PW-2. We do not discredit the evidence of PW-2. She is a reliable witness.
But only to the extent of what led to the incident, we are inclined to grant
a limited beneﬁt to the accused but not like the one given by the High
BIRBAL NATH v. THE STATE OF RAJASTHAN & ORS 99
[SUDHANSHU DHULIA, J.]

Court. We are of the opinion that this case is of culpable homicide not
amounting to murder, and not of murder. There were contradictions in the
two statements of PW-2 as we have discussed in the preceding paragraphs.
These contradictions, however, are not enough to completely discredit this
witness. All the same, these contradictions, in the given fact of the case, do
give a beneﬁt of doubt to the accused as to the case of premeditated attack
of the prosecution. In our opinion, therefore the attack would come under
Exception 4 to Section 300, 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.”
31. Both the appeals are allowed and the order of the High Court dated
08.08.2007 is liable to be set aside and is hereby quashed. As far as the order
of the Trial Court is concerned, we convert the ﬁndings of Section 302 to
that of Section 304 part I IPC, and that of Section 307 to Section 308 IPC.
We sentence each of the accused for seven years of rigorous imprisonment
(R.I.) under Section 304 part I IPC and three years of rigorous imprisonment
under Section 308 IPC. The remaining ﬁndings and sentences awarded by
the Trial Court shall remain.
32. Out of the six accused, we have been informed that Jethnath has
passed away. The case against him therefore stands abated. The remaining
accused shall surrender before the Court concerned within four weeks from
today, from where they shall be sent to prison to carry out the remaining
sentence. Bail bonds, if any, shall stand discharged. The period of sentence
already undergone by the accused shall be adjusted from the sentences
presently awarded. All sentences will run concurrently. Let a copy of this
order be sent to the concerned court for onward compliance of our orders.

Headnotes prepared by: Appeals allowed.
Nidhi Jain

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