Rakesh Kainthla, Judge

1. The present petition is filed against the judgment dated 27.02.2010, passed by learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, H.P. (learned Appellate Court), vide which the judgment and order passed by learned Judicial Magistrate, First Class, Palampur, District Kangra (learned Trial Court) were upheld. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

2. Briefly stated, the facts giving rise to the present petition are that the police presented a challan against the accused before the learned Trial Court for the commission of offences punishable under Sections 353 & 332 of the Indian Penal Code (in short ‘IPC’). It was asserted that Informant-Jaswant Singh (PW-1) was posted as a Driver in Chandigarh Roadways. He was driving a bus bearing registration No. CH-01G-8165 on 11.09.2001. Suresh Kumar (PW-2) was posted as a conductor on the bus. The bus reached Palampur at 09:20 am. The Driver and Conductor of Anurag Bus bearing registration No. HP-53-6313 came towards the informant. They dragged the informant out of the bus and started beating him by saying that the informant had picked up the passengers of Anurag Bus. Names of the driver and conductor of Anurag Bus were found to be Ajay Kumar and Devi Singh, who were subsequently arrayed as accused. They gave beatings to the informant. The hair of the informant’s beard was uprooted by the accused. His shirt was also torn. The informant shouted for help and Suresh Kumar (PW-2) tried to rescue him, however, the accused also gave him beatings. The informant sustained injuries. He was rescued by the employees of HRTC. Intimation was given to the police and entry No. 5 was recorded in the Police Station. HC Jai Chand (PW-7), and Constable Kuldeep Chand came to the spot for verification of the information. HC Jai Chand recorded statement of the informant (Ex. PW-4/B) and sent it to the Police Station where FIR (Ex. PW- 4/A) was registered. Dr. Mrs. P. Singh (PW-10) conducted the medical examination of Suresh Kumar and found that he had not sustained any external injury. She issued the MLC (Ex. PW-10/A). She also examined Jaswant Singh and found simple injuries on his person, which could have been caused by a blunt weapon within 6 to 8 hours of the examination. She issued the MLC (PW-10/B). HC Jai Chand conducted the investigation. He prepared the site plan (Ex. PW-7/B). He seized the Bus bearing registration No. CH-01G-8165 vide seizure memo (Ex. PW-1/B) and the Bus bearing registration No. HP-53-6313 vide memo (Ex. PW-3/A). The informant produced his shirt (Ex. P1) and the hairs of his beard (Ex. P2) which were seized vide memo (Ex. PW-1/C). HC Jai Chand also seized a shirt (Ex P3), undervest (Ex. P4) and the cash bag of the Conductor (Ex. P5). He seized the appointment orders of the informant and conductor Suresh Kumar from the Office of CTU. He recorded the statements of witnesses as per their version. The challan was presented before the learned Trial Court after the completion of the investigation.

3. The learned Trial Court charged the accused with the commission of offences punishable under Section 332 read with Section 34 of IPC, to which the accused pleaded not guilty and claimed to be tried.

4. The prosecution examined 10 witnesses to prove its case. Jaswant Singh (PW-1) is the informant. Suresh Kumar (PW-2) was posted as a conductor on the Bus. Kundan Singh (PW-3) is an eyewitness and an employee of HRTC. Bal Raj (PW- 4) signed the FIR. Malkiat Singh Rana (PW-5) produced the appointment and posting orders of the victim and conductor Suresh Kumar. Murli Ram (PW-6) is another eye witness, HC Jai Chand (PW-7) conducted the investigation. Pyare Lal (PW-8) is the owner of Anurag Bus. Anurag Sharma (PW-9) produced the documents of the Bus. Dr. Mrs. P. Singh (PW-10) conducted the medical examination of the victim and the conductor.

5. The accused in their statements recorded under Section 313 of Cr.P.C. admitted that informant Jaswant Singh and Suresh Kumar were deputed as Driver and Conductor on the bus bearing registration No. CH-01G-8165 on 11.02.2001 at about 9:20 am. They admitted that Ajay Kumar was the Driver of Anurag Bus and Devi Singh was a Conductor of the said bus. They denied the rest of the prosecution case. They stated that they were innocent and a false case was registered against them. Initially, they stated that they wanted to lead defence evidence however, no evidence was led subsequently.

6. The learned Trial Court held that the testimony of the informant was duly corroborated by the conductor and other eyewitnesses. The informant’s clothes were also torn which corroborated his version. Medical evidence proved the injuries sustained by the informant. Hence, the learned Trial Court convicted and sentenced the accused in the following manner:-

7. Being aggrieved by the judgment passed by learned Trial Court, the accused filed an appeal, which was decided by learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala (learned Appellate Court). Learned Appellate Court concurred with the findings recorded by learned Trial Court that the accused inflicted injuries to the informant and Suresh Kumar while they were discharging their official duties. The testimonies of the informant and Suresh Kumar were duly corroborated by independent witnesses, recovery of torn clothes and the injuries noticed by the Medical Officer. Hence, the appeal filed by the accused was dismissed and the judgment of conviction and order of sentence passed by learned Trial Court were upheld.

8. Being aggrieved by the judgment and order passed by learned Courts below, the accused have filed the present revision, asserting that the learned Courts below misconstrued the evidence led by the prosecution. The prosecution story was full of contradiction and there was no reliable evidence to prove the prosecution case. The independent witness did not support the prosecution’s case. No passenger of either Bus was examined by the prosecution. The prosecution relied upon the testimonies of interested witnesses. Therefore, it was prayed that the present revision be allowed and the judgments and order passed by learned Courts below be set aside.

9. I have heard Mr. Shivank Singh Panta, learned counsel for the petitioners/accused, and Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent-State.

10. Mr Shivank Singh Panta, learned counsel for the petitioners/accused, submitted that the learned Courts below erred in convicting and sentencing the accused. There was no satisfactory evidence to prove that the accused had beaten the informant and Suresh Kumar. There were various contradictions in the testimonies of the prosecution witnesses which rendered them unreliable. Learned Courts below erred in relying upon the testimonies of the witnesses to convict and sentence the accused. The benefit of the Probation of Offenders Act was not granted to the accused. Hence, he prayed that the present revision be allowed and the judgments and order passed by learned Courts below be set aside. He relied upon Mekala Sivaiah Vs. State of Andhra Pradesh 2022 STPL 9968 SC, D. Chattaiah and another Vs. State of Andhra Pradesh 1978 STPL 2632 SC, Leela Ram (D) through Duli Chand Vs. State of Haryana and another 1999 STPL 10821 SC, Balasaheb Nivrutti Jagtap Vs. State of Maharashtra Crl. Revision No. 52 of 2005, decided on 20.3.2018 and Parvinder Kumar Vs. State of H.P. Crl. Revision No. 49 of 2009, decided on 30.10.2017 in support of his submission.

11. Mr. Lokender Kutlehria learned Additional Advocate General for the respondent-State submitted that learned Courts below had rightly convicted and sentenced the accused. This Court should not re-appreciate the evidence while deciding a revision. There is no perversity in the judgments and order passed by learned Courts below. Hence, he prayed that the present revision be dismissed.

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

13. It was laid down by the Hon’ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204: (2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the revisional court is not an appellate Court and it can only rectify the patent defect, errors of jurisdiction or the law. It was observed on page 207: -

“10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction like the appellate court, and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short “CrPC”) vests jurisdiction to satisfy itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error which is to be determined on the merits of individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings."

14. This position was reiterated in State of Gujarat v. Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC 1294, wherein it was observed:

“13. The power and jurisdiction of the Higher Court under Section 397 Cr. P.C., which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularity of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept into such proceedings. It would be apposite to refer to the judgment of this court in Amit Kapoor v. Ramesh Chandra, (2012) 9 SCC 460, where the scope of Section 397 has been considered and succinctly explained as under:

“12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error, and it may not be appropriate for the court to scrutinise the orders, which, upon the face of it, bear a token of careful consideration and appear to be in accordance with the law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes but are merely indicative. Each case would have to be determined on its own merits.

13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex-facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much- advanced stage in the proceedings under the CrPC.”

15. The present revision has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

16. A perusal of the record shows that the learned Trial Court had charged the accused with the commission of offences punishable under Section 332 read with Section 34 of IPC. No charge was framed against the accused for the commission of an offence punishable under Section 353 of IPC. Learned Trial Court never amended the charge to include Section 353. Therefore learned Trial Court erred in convicting and sentencing the accused of the commission of an offence punishable under Section 353 of IPC for which no charge was framed. It was laid down by this Court in Jeevo alias Jeevan Kumar vs. State of H.P. 2001 (1) Cur.L.J. 283 that a person cannot be convicted of the commission of an offence for which he was never charged.

“16. The question which, therefore, arises is whether the accused, who was not charged for the substantive offence under section 307, Indian Penal Code, could be convicted of the substantive offence under section 307, Indian Penal Code. The answer to the question is to be found in Subran alias Subramanian & Ors. v. State of Kerala, 1993 Cri. L.J. 1387."

17. In the said case the occurrence took place on 24.12.1986 in which one Suku succumbed to the injuries as a result of the assault. Six persons were arrayed as accused for the offences under sections 302,324,323,241, 148 read with section 149, Indian Penal Code. Upon having been put a trial, the trial court found accused No. 1 (Subran) guilty of the offence under section 302, Indian Penal Code, and sentenced him to suffer rigorous imprisonment for life. The other five accused were found guilty of the offence under section 326 read with section 149, Indian Penal Code and each one of them was sentenced to undergo rigorous imprisonment for three years. In appeal, the High Court affirmed the conviction and sentence of four accused including that of accused No. 1 and acquitted two accused. On further appeal before the Supreme Court, it was held that the conviction of accused No. 1 for the substantive offence under section 302, Indian Penal Code in the absence of a specific charge, was bad. It was observed:-

"Since, appellant No.l Subran had not been charged for the substantive offence of murder under section 302, IPC, even the trial court, which tried the six accused persons, was not justified in recording a conviction against him for the substantive offence of murder punishable under section 302, IPC after framing a charge against him for the offence under Section 302 read with Section 149, IPC only. A person charged for an offence under section 302, IPC read with Section 149 cannot be convicted of the substantive offence under Section 302, IPC without a specific charge having been framed against him as envisaged by law. Conviction for the substantive offence in such a case is unjustified because an accused might be misled in his defence by the absence of the charge for the substantive offence under Section 302 IPC. Appellant No. 1, Subran, was never called upon to meet a charge under section 302, IPC smpliciter and, therefore, in defending himself, he cannot be said to have been called upon to meet that charge and he could very well have considered it unnecessary to concentrate on that part of the prosecution case during the cross examination of the prosecution witnesses. Therefore, the conviction of the first appellant for an offence under Section ' 302 was not permissible."

18. The Supreme Court while acquitting accused No.l (Subran) of the offence under Section 302, Indian Penal Code, on the basis of evidence coming on record instead convicted and sentenced him for the offence under Section 304 (I), Indian Penal Code.

19. Following the above ratio, it can be safely held in the present case that since the accused was never charged for the substantive offence under section 307, Indian Penal Code, he could not have been convicted for such offence. His conviction for such offence is unwarranted and cannot be sustained.

17. Hence, the part of the judgment of learned Trial Court as affirmed by learned Appellate Court convicting the accused of the commission of an offence punishable under Section 353 of IPC and sentencing them for the commission of the aforesaid offence is not sustainable and is liable to be set aside.

18. Informant Jaswant Singh (PW-1) stated that he and Suresh Kumar were deputed as Driver and Conductor in a bus bearing registration No.CH-01G-8165. The bus reached Palampur at 9:10 am. He was about to leave for Chandigarh at 9:20 a.m. when the Driver of the Anurag Bus along with 4-5 persons came near his Bus. They gave him a beating and tore his shirt. When Suresh Kumar, the conductor, tried to rescue him, he (Suresh Kumar) was also beaten and his clothes & bag were torn. He and Suresh Kumar were discharging their official duties. He identified the accused as the persons who had given beatings to them.

19. The accused did not dispute the fact that the informant was deputed as a Driver and Suresh Kumar was deputed as a Conductor in the Bus bearing registration No. CH- 01G-8165 in their statements recorded under Section 313 of CrPC. Malkiat Singh (PW-5) proved the appointment and posting order of the informant and Suresh Kumar. He also stated that the informant was posted as a Driver and Suresh Kumar was posted as a Conductor on the Bus. This part of his testimony was not disputed by the accused and the learned Courts below had rightly held that the informant was a Driver and Suresh Kumar was the Conductor in the bus owned by Chandigarh Transport Undertakings.

20. Section 21 of the Indian Penal Code defines the term “public servant”. Clause 12 (b) includes the persons in the service or pay of a local authority, a corporation established under a Central, Provincial or State Act or a Government Company as defined in Section 617 of the Companies Act, 1956. Chandigarh Transport Undertakings is a government corporation and its employees will fall within the definition of public servant within the meaning of Section 21. Therefore, Jaswant Singh and Suresh Kumar would fall within the definition of public servants.

21. The informant Jaswant Singh stated in his cross- examination that there were 8-10 passengers on the bus. He volunteered to say that the bus was full of passengers. Suresh Kumar (PW-2) on the other hand stated that 2-3 passengers were travelling in the bus and the bus was almost empty. It was submitted that this is a major contradiction which made the prosecution case highly doubtful. This submission is not acceptable. The incident took place on 11.09.2001. The informant and Suresh Kumar made statements before the Court on 18.07.2005, after the lapse of more than 4 years. The human memory fails with the passage of time and it is difficult to remember the incident in graphic detail. It was laid down by the Hon’ble Supreme Court in Goverdhan Vs. State of Chhattisgarh (2025) SCC Online SC 69 that the discrepancies are not sufficient to discard the prosecution case unless they are material. It was observed:-

“51. As we proceed to examine this crucial aspect, it may be apposite to keep in mind certain observations made by this Court relating to discrepancies in the account of eyewitnesses.

In Leela Ram (Dead) through Duli Chand v. State of Haryana, (1999) 9 SCC 525 it was observed as follows:

“9. Be it noted that the High Court is within its jurisdiction being the first appellate court to reappraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in State of U.P. v. M.K. Anthony [(1985) 1 SCC 505: 1985 SCC (Cri) 105]. In para 10 of the Report, this Court observed : (SCC pp. 514- 15)

‘10. 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 scrutinise 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. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. 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. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals.’

10. In a very recent decision in Rammi v. State of M.P. [(1999) 8 SCC 649 : 2000 SCC (Cri) 26] this Court observed : (SCC p. 656, para 24)

‘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.’

This Court further observed : (SCC pp. 656-57, paras 25- 27)

‘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 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.

27. To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness (vide Tahsildar Singh v. State of U.P. [AIR 1959 SC 1012: 1959 Cri LJ 1231]).’”

52. Further, this Court also cautioned about attaching too much importance on minor discrepancies of the evidence of the witnesses in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC 217 as follows:

“5. … We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by the learned counsel for the appellant. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious:

(1) 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.

(2) 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.

(3) 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.

(4) 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.

(5) 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 time-sense of individuals which varies from person to person.

(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by the 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 subconscious 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—perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.”

53. To the same effect it was also observed in Appabhai v. State of Gujarat 1988 Supp SCC 241 as follows:

“13. … The court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. Jaganmohan Reddy, J. speaking for this Court in Sohrab v. State of M.P. [(1972) 3 SCC 751 : 1972 SCC (Cri) 819] observed : [SCC p. 756, para 8 : SCC (Cri) p. 824, para 8]

‘8. … This Court has held that falsus in uno, falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered….’”

22. In the present case, the contradiction relates to the detail surrounding the incident and does not affect the core of the prosecution case. Hence the same cannot be used to discard the same.

23. Informant Jaswant Singh admitted in his cross- examination that many people were present on the spot. Suresh Kumar (PW-2) also admitted that many buses of HRTC and private buses were parked in the bus stand and many persons were present in the Bus Stand. It was submitted that the prosecution had not associated any passenger of the bus or any person present on the spot; therefore, the prosecution case is to be discarded due to the non-examination of the independent person. This submission is also not acceptable. It was laid down by the Hon’ble Supreme Court in Appabhai v. State of Gujarat, 1988 Supp SCC 241: 1988 SCC (Cri) 559 that the prosecution case cannot be doubted due to the non-examination of the independent witnesses. It was observed at page 245:

“11. In light of these principles, we may now consider the first contention urged by the learned counsel for the appellants. The contention relates to the failure of the prosecution to examine independent witnesses. The High Court has examined this contention but did not find any infirmity in the investigation. It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. The experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that a crime like a civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused.”

24. It was laid down by Hon’ble Supreme Court in Pohlu v. State of Haryana, (2005) 10 SCC 196 : 2005 SCC (Cri) 1496 : 2004 SCC OnLine SC 1393 , that the intrinsic worth of the testimony of witnesses has to be assessed by the Court and if the testimony of the witnesses appears to be truthful, the non-examination of other witnesses will not make the testimony doubtful. It was observed at page 199: -

“10. It was then submitted that some of the material witnesses were not examined and, in this connection, it was argued that two of the eye-witnesses named in the FIR, namely, Chander and Sita Ram were not examined by the prosecution. Dharamvir, son of Sukhdei was also not examined by the prosecution though he was a material witness, being an injured eyewitness, having witnessed the assault that took place in the house of Sukhdei PW 2. It is true that it is not necessary for the prosecution to multiply witnesses if it prefers to rely upon the evidence of eyewitnesses examined by it, which it considers sufficient to prove the case of the prosecution. However, the intrinsic worth of the testimony of the witnesses examined by the prosecution has to be assessed by the Court. If their evidence appears to be truthful, reliable and acceptable, the mere fact that some other witnesses have not been examined, will not adversely affect the case of the prosecution. We have, therefore, to examine the evidence of the two eye witnesses namely, PW 1 and PW 2, and to find whether their evidence is true, on the basis of which the conviction of the appellants can be sustained. ”

25. It was laid down by the Hon’ble Supreme Court in Srichand K. Khetwani v. State of Maharashtra, 1966 SCC OnLine SC 32 : (1967) 1 SCR 595: AIR 1967 SC 450: 1967 Cri LJ 414 : (1967) 2 SCJ 178, that an adverse inference can be drawn for withholding certain evidence and not for failure to obtain the evidence. It was observed

“8. Further, an adverse inference against the prosecution can be drawn only if it withholds certain evidence and not merely on account of its failure to obtain certain evidence. When no such evidence has been obtained, it cannot be said what that evidence could have been and therefore no question of presuming that that evidence would have been against the prosecution, under Section 114, illustration (g) of the Evidence Act, can arise.”

26. In the present case the passengers would have been in a hurry to leave for their destination and the offices as it was a morning rush hour, therefore, non-examination of the passengers cannot be used to discard the prosecution case.

27. The informant stated in his cross-examination that he did not know the names of the accused. He voluntarily said that he knew the name of one person on the date of deposition. Suresh Kumar (PW-2) also stated that he did not know the names of the passengers at the time of the incident. It was submitted that since the informant and Suresh Kumar were not aware of the names of the passengers, therefore, the mention of the name of the accused in the statement (Ex. PW-1/A) makes the prosecution case suspect. This submission is also not acceptable. It was mentioned in the statement (Ex. PW-1/A) that the names of the Driver and Conductor of Anurag Bus were found to be Ajay Kumar and Devi Singh. This shows that the names were revealed to the informant by some other persons and his statement on oath that he did not know the names of the accused on the date of the incident is correct. He never claimed in the FIR that the names of the accused were known to him, rather he claimed that the names were revealed to him.

28. It was suggested to the informant that he did not start the bus at the allotted time, the employees of HRTC and the private bus owner requested him to take the bus out of the bus stand after which he abused and gave them beatings. He denied these suggestions. These suggestions show that the incident is not disputed and only the manner of the incident has been disputed by the defence. It was laid down by the Hon’ble Supreme Court in Balu Sudam Khalde v. State of Maharashtra, (2023) 13 SCC 365: 2023 SCC OnLine SC 355 that the suggestion put to the witness can be taken into consideration while determining the innocence or guilt of the accused. It was observed at page 382:-

“34. According to the learned counsel, such suggestions could be a part of the defence strategy to impeach the credibility of the witness. The proof of guilt required of the prosecution does not depend on the satisfaction made to a witness.

35. In Tarun Bora v. State of Assam [Tarun Bora v. State of Assam, (2002) 7 SCC 39: 2002 SCC (Cri) 1568], a three-judge Bench of this Court was dealing with an appeal against the order passed by the Designated Court, Guwahati, in TADA Sessions case wherein the appellant was convicted under Section 365IPC read with Sections 3(1) and 3(5) of the Terrorist and Disruptive Activities (Prevention) Act, 1987.

36. In Tarun Bora case [Tarun Bora v. State of Assam, (2002) 7 SCC 39: 2002 SCC (Cri) 1568], this Court, while considering the evidence on record, took note of a suggestion which was put to one of the witnesses and considering the reply given by the witness to the suggestion put by the accused, arrived at the conclusion that the presence of the accused was admitted. We quote with profit the following observations made by this Court in paras 15, 16 and 17, respectively, as under : (Tarun Bora case [Tarun Bora v. State of Assam, (2002) 7 SCC 39: 2002 SCC (Cri) 1568], SCC pp. 43-44)

“15. The witness further stated that during the assault, the assailant accused him of giving information to the army about the United Liberation Front of Assam (ULFA). He further stated that on the third night, he was carried away blindfolded on a bicycle to a different place, and when his eyes were unfolded, he could see his younger brother Kumud Kakati (PW 2) and his wife Smt Prema Kakati (PW 3). The place was Duliapather, which is about 6-7 km away from his Village Sakrahi. The witness identified the appellant, Tarun Bora, and stated that it is he who took him in an Ambassador car from the residence of Nandeswar Bora on the date of the incident.

16. In cross-examination, the witness stated as under:

‘Accused Tarun Bora did not blind my eyes, nor he assaulted me.’

17. This part of the cross-examination is suggestive of the presence of accused Tarun Bora in the whole episode. This will clearly suggest the presence of the accused, Tarun Bora, as admitted. The only denial is that the accused did not participate in blind-folding the eyes of the witness nor assaulted him.”

37. In Rakesh Kumar v. State of Haryana [Rakesh Kumar v. State of Haryana, (1987) 2 SCC 34: 1987 SCC (Cri) 256], this Court was dealing with an appeal against the judgment of the High Court affirming the order of the Sessions Judge whereby the appellant and three other persons were convicted under Section 302 read with Section 34IPC. While reappreciating the evidence on record, this Court noticed that in the cross-examination of PW 4 Sube Singh, a suggestion was made with regard to the colour of the shirt worn by one of the accused persons at the time of the incident. This Court, taking into consideration the nature of the suggestion put by the defence and the reply, arrived at the conclusion that the presence of the accused, namely, Dharam Vir, was established on the spot at the time of occurrence. We quote the following observations made by this Court in paras 8 and 9, respectively, as under (SCC p. 36)

“8. PW 3, Bhagat Singh, stated in his examination-in- chief that he had identified the accused at the time of occurrence. But curiously enough, he was not cross- examined as to how and in what manner he could identify the accused, as pointed out by the learned Sessions Judge. No suggestion was also given to him that the place was dark and that it was not possible to identify the assailants of the deceased.

9. In his cross-examination, PW 4 Sube Singh stated that the accused, Dharam Vir, was wearing a shirt of white colour. It was suggested to him on behalf of the accused that Dharam Vir was wearing a shirt of cream colour. In answer to that suggestion, PW 4 said it is not correct that Dharam Vir, the accused, was wearing a shirt of a cream colour and not a white colour at that time.’ The learned Sessions Judge has rightly observed that the above suggestion at least proves the presence of accused Dharam Vir on the spot at the time of occurrence.”

38. Thus, from the above, it is evident that the suggestion made by the defence counsel to a witness in the cross- examination, if found to be incriminating in nature in any manner, would definitely bind the accused, and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.

39. Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. As a legal proposition, we cannot agree with the submission canvassed on behalf of the appellants that an answer by a witness to a suggestion made by the defence counsel in the cross- examination does not deserve any value or utility if it incriminates the accused in any manner.”

29. The testimony of the informant is corroborated by Murli Ram (PW-6). He stated that he was present at the Bus Stand on 11.09.2001 at 9:20 am when a bus of CTU reached the bus stand. The informant was driving the bus and Suresh Kumar was the Conductor in it. Anurag Bus also arrived at the bus stand. He heard some noise and went to the stop with Jasmir. He found that the driver of CTU was lying on the ground. The driver and Conductor of Anurag Bus were beating the driver of CTU. He identified Devi Singh as the person, who was beating the informant. He rescued the informant from the accused. He denied in his cross-examination that 3-4 buses of Anurag Bus Service were present on the spot. An argument was taking place at the time of his arrival. He was not aware that the CTU Bus was supposed to leave at 9:30 am. He admitted that the drivers of HRTC and private bus had asked the informant to leave on time. He corrected to say that the employees of HRTC had not asked him to do so. He denied that the accused had not given any beatings to the informant.

30. His statement corroborates the testimony of the informant in material particulars. He has identified one of the accused Devi Singh as the assailant. There is nothing in his cross- examination to show that he was making a false statement. He is an employee of HRTC and as per the defence the employee of the HRTC had asked the informant to take the bus on time, therefore, he has no affinity with the informant. Hence, the learned Courts below had rightly relied upon his testimony.

31. It was laid down by the Hon’ble Supreme Court in Goverdhan (supra) that the Appellate Court should not interfere with the findings regarding the credibility of the witnesses recorded by the learned Trial Court unless there is some illegality in it. It was observed: -

“83. The trial court after recording the testimony of the PW-10 and on consideration of the same found her evidence trustworthy and credible. We see no reason to question the assessment about the credibility of the witness by the Trial Court which had the advantage of seeing and hearing above the witness and all other witnesses. Nothing has been brought to our notice of any serious illegality or breach of fundamental law so as to warrant taking a different view of the evidence of PW-10.

In this regard we may keep in mind the valuable observations made by this Court in Jagdish Singh v. Madhuri Devi, (2008) 10 SCC 497 in the following words:

“28. At the same time, however, the appellate court is expected, nay bound, to bear in mind a finding recorded by the trial court on oral evidence. It should not forget that the trial court had an advantage and opportunity of seeing the demeanour of witnesses and, hence, the trial court's conclusions should not normally be disturbed. No doubt, the appellate court possesses the same powers as that of the original court, but they have to be exercised with proper care, caution and circumspection. When a finding of fact has been recorded by the trial court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial court in appraisal of evidence is erroneous, contrary to well- established principles of law or unreasonable.

29. …………………………………..

30. In Sara Veeraswami v. Talluri Narayya [(1947-48) 75 IA 252 : AIR 1949 PC 32] the Judicial Committee of the Privy Council, after referring to relevant decisions on the point, stated [Quoting from Watt v. Thomas, [1947] 1 All ER 582, pp. 583 H-584 A.]

: (IA p. 255)

“… but if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of the first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given.”

32. Dr Mrs P. Singh conducted the medical examination of the informant and found a simple injury which could have been caused by a blunt weapon within 12 hours of examination. She admitted in her cross-examination that the injury noticed by her could have been caused by a fall. It is merely an alternative possibility and does not make the prosecution case doubtful.

33. HC Jai Chand conducted the investigation, he recovered the torn shirts, undervest and hair of the beard. These recoveries corroborated the version of the informant and Suresh Kumar regarding the beatings given to them, their clothes getting torn and the accused pulling at the informant’s beard.

34. It was submitted that the accused had not given the beatings to prevent or deter the public servant from discharging their duties or in consequence of anything done or attempted to be done by them. This submission is not acceptable. Section 332 of IPC reads as under:

"332. Voluntarily causing hurt to deter public servant from his duty.—Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

35. It is apparent from the bare perusal of the Section that if any hurt is caused to a public servant in the discharge of his official duties, the Section is attracted. In the present case, the accused admitted in their statements recorded under Section 313 of CrPC that the informant and Suresh Kumar were discharging their duties on the date of the incident. Testimonies of the prosecution’s witnesses proved that the accused had caused hurt to him in the discharge of their official duties. Hence, Section 332 of IPC is established on record. The judgment in D Chattaiah (supra) does not apply to the present case because in the said case the incident had occurred due to a private dispute between the parties which is not the case here.

36. The judgment in Mekala Sivaiah (supra) deals with the powers of the Hon’ble Supreme Court while exercising jurisdiction under Section 136 of the Constitution of India which is not the question in the present case. Hence, this judgment will not assist the accused. In Bala Sahib Nirvriti (Supra), the incident was not connected to the discharge of duties and the accused had questioned the complainant about lodging some complaint. In Parminder Kumar (supra) the Court had found the testimonies were not reliable. In the present case, it has already been held the testimonies are reliable. Therefore, the cited judgments do not apply to the present case.

37. It was submitted that the benefit of the Probation of Offenders Act was not granted to the accused and such a benefit should have been extended to them. This submission is not acceptable. It was laid down by the Hon’ble Supreme Court in Siyasaran v. State of M.P., 1994 SCC OnLine SC 4: 1995 Cri LJ 2126 that the benefit of Probation of Offenders Act cannot be granted to a person convicted of using force on a Government servant. Therefore, the learned Courts below did not err in not extending the benefit of the Probation of Offenders Act to the accused.

38. No other point was urged.

39. Therefore, the judgment passed by learned Trial Court is partly sustainable. Hence, the appeal is partly allowed and the judgment and order passed by learned Trial Court as affirmed by learned Appellate Court convicting the accused of the commission of an offence punishable under Section 353 of IPC and sentencing them for the commission of the aforesaid offence is ordered to be set aside, whereas the judgment and order passed by learned Trial Court as affirmed by learned Appellate Court convicting and sentencing the accused of the commission of an offence punishable under Section 332 of IPC is upheld.

40. The present revision stands disposed of so also the pending applications, if any.