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CASE NO.:

Appeal (crl.) 421 of 1996

PETITIONER:

State of Rajasthan

RESPONDENT:

Vs.

Bhawani & Anr.

DATE OF JUDGMENT: 31/07/2003

BENCH:

S. Rajendra Babu & K.G. Balakrishnan.

JUDGMENT:

JUDGMENT

G.P. Mathur, J.

1. State of Rajasthan has preferred this appeal by special leave against

the judgment and order dated 31.1.1991 of Jaipur Bench of High Court of

Rajasthan by which the appeal preferred by the respondents against their

conviction and sentence was allowed and they were acquitted. The learned

Additional Sessions Judge, Kishangarh (Alwar) had convicted the

respondents under Sections 148, 307, 302 and 448 IPC and had sentenced

them to one year RI, 7 years RI and a fine of Rs.1000/-, imprisonment for

life and a fine of Rs.100/- and one month RI respectively under each count.

The respondent No.1 Bhawani had been further convicted under Section

3/25 of the Arms Act and had been sentenced to one year RI and a fine of

Rs.500/-.

2. According to the prosecution, the incident took place at about 5.30

p.m. on 21.12.1985 in village Bhajnawas when PW1 Daya Ram was cutting

fodder in his Nohara. The respondents Bhawani armed with gun, Hari

Singh armed with country-made pistol and three others namely Kishanlal

armed with gun, Ramjilal armed with pistol and Amilal armed with country-

made pistol suddenly came there and after giving abuses, started firing from

their respective weapons. It is said that some other persons who were

armed with lathis and farsies were standing outside the Nohara. As a result

of firing, two persons, namely, Deshraj and Hoshiar died on the spot and

several others received gunshot injuries. An FIR of the incident was lodged

by PW1 Daya Ram, brother of Deshraj, deceased, at 8.00 p.m. on

21.12.1985 at P.S. Mundawar, which is 17 kilometers from the place of

occurrence in which 16 persons were named as accused. The motive for the

assault is said to be a litigation regarding the Nohara which was pending

between the parties in the Court of SDM, Kishangarh. On the basis of the

FIR, a case was registered and usual investigation followed. Three accused,

namely Kishanlal, Ramjilal and Amilal were not prosecuted as they had

absconded. The prosecution, however, submitted charge-sheet against 35

accused. The learned Additional Sessions Judge held that from the

evidence on record it was proved beyond doubt that Bhawani, Hari Singh,

Kishanlal, Ramjilal and Amilal had formed an unlawful assembly and in

prosecution of their common object they had trespassed into the Nohara and

had caused death of Deshraj and Hoshiar and gunshot injuries to others by

firing at them. The remaining accused who were alleged to have been

standing outside the Nohara and were alleged to have been armed with lathis

and farsies and had not been assigned any specific role of causing any injury

to anyone, were acquitted. The respondents Bhawani and Hari Singh

preferred an appeal against their conviction and sentence which has been

allowed by the High Court by the judgment and order which is under

challenge in the present appeal.

3. Before we deal with the submissions made by learned counsel for the

parties, it will be advantageous to briefly take note of the evidence which

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has been adduced by the prosecution. PW1 Daya Ram has stated that a

litigation regarding Nohara was going on with Kishanlal (absconding

accused) in the Court of SDM, Kishangarh, due to which the accused bore

enmity with him. At about 5.30 p.m. on the date of the incident, he was

cutting fodder in the Nohara, when Bhawani and Kishanlal armed with guns,

Hari Singh and Amilal armed with country-made pistols, Ramjilal armed

with pistol and 11 other accused armed with lathis and farsies came there.

Kishanlal gave abuses and thereafter all the five accused armed with fire

arms started firing from their respective weapons. Deshraj, Leela, Daulat,

Ratan, Makhan and Babulal who were sitting in the Baithak came outside,

after hearing the abuses and sound of gunfire. The accused also fired upon

them due to which they received gunshot injuries. The sound of gunfire also

attracted Bholu, his wife Santosh and Hoshiar to the Nohara, but they also

fell victim to the shots fired by the accused and fell down after receiving

injuries. The remaining 11 accused who were armed with lathis and farsies

had surrounded the Nohara and did not allow anyone to escape. Deshraj

and Hoshiar died on the spot as a result of the injuries received by them. He

has further stated that thereafter he went to the Police Station Mundawar on

the jeep of Babulal Vaidya, where he lodged a written report of the incident

at 8.00 p.m. Similar statements have been given by PW5 Bholu Ram

(brother of Hoshiar, deceased), PW6 Leela Ram, PW10 Babulal, PW11

Dhanni, PW12 Lali, PW13 Sajana, PW14 Sarwan, PW15 Patori, PW16

Santosh and PW17 Bharpai. Out of these 11 eye witnesses PW1, PW5,

PW6, PW10 and PW16 had received gunshot injuries and are, therefore,

injured witnesses. PW26 Dr. Srichand Sharma, who was posted at Public

Health Centre, Mundawar, conducted post-mortem examination on the

bodies of deceased Deshraj and Hoshiar Singh on 22.12.1985. Deshraj had

received 22 gunshot wounds on chest in 7" diameter, 10 gunshot wounds on

abdomen, epigastric and umblical region besides number of gunshot wounds

on left forearm, right arm and face. The internal examination showed that

sternum and third, fourth, fifth and sixth ribs of both sides were punctured

and plura was perforated. Hoshiar Singh had sustained 12 gunshot wounds

on chest central part in 6" diameter, two gunshot wounds on epigastric

region, two gunshot wounds on right and left forearms. Sternum and third,

fourth and fifth ribs of both sides were fractured and plura was perforated.

In the opinion of the Doctor, the ante-mortem injuries sustained by both the

deceased were sufficient in the ordinary course of nature to cause death.

PW21 Dr. P.N. Aggarwal, who was posted in General Hospital, Alwar on

22.12.1985, medically examined PW1 Daya Ram and found gunshot injuries

on his jaw, left side of neck, chest, shoulder and left arm. He also examined

PW10 Babulal and found gunshot injuries on his right hip, thigh and left

hand. PW23 Dr. Gopal Maheshwari, who was posted as Medical Officer at

Government Hospital, Kot Putli on 22.12.1985, medically examined PW5

Bholu Ram, PW6 Leela Ram, PW7 Makhan Ram, PW8 Daulat Ram, PW9

Ratan Lal and PW16 Santosh on that day and found gunshot injuries on their

person. Leela Ram had sustained pellet injuries on chest, abdomen, chin

and below right eye. Bholu Ram had sustained multiple pellet injuries on

chest, abdomen, arms and thighs and Smt. Santosh had sustained pellet

injuries on abdomen and right auxilliary fold. PW22 Mahesh Chand Dube

was posted as Station House Officer at P.S. Mundawar on 21.12.1985. In

his deposition, he has given details of the various steps taken by him during

the course of investigation of the case.

4. PW2 Raja Ram, PW3 Babulal, PW4 Ram Singh alias Radheyshyam,

PW7 Makhan, PW8 Daulat Ram and PW9 Ratan did not support the case of

the procesuction and were accordingly declared hostile.

5. Learned counsel for the appellant has submitted that the High Court

has not properly appreciated the evidence adduced by the eye-witnesses and

has completely ignored their testimony which fully established the

prosecution case. He has urged that out of 11 eye-witnesses who supported

the prosecution case in their statement in Court, 5 were injured witnesses

who had all received serious gunshot injuries and as such there could not

even be slightest doubt regarding their presence on the site. The remaining

6 eye witnesses were also resident of the same place and their houses were

nearby and, therefore, they were the best witnesses of the incident.

However, the High Court chose to place reliance upon the testimony of some

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of the witnesses who had been won over and had turned hostile and on the

basis of their statements has discarded the prosecution case. Learned

counsel has further submitted that the High Court has discarded the

testimony of the eye-witnesses relying upon inadmissible evidence and as

such the judgment of acquittal recorded in favour of the respondents is

wholly illegal and deserves to be set aside. Learned counsel for the

accused-respondents has, on the other hand, submitted that the FIR of the

incident was actually not lodged at 8.00 p.m. on 21.12.1985 but was lodged

much later and the same has been ante-timed. He has further submitted that

the eye-witnesses examined by the prosecution were all related to the

deceased and were, therefore, interested witnesses whose testimony could

not be relied upon. He has also assailed the evidence adduced by the

prosecution regarding recovery of gun from the possession of Bhawani

accused which actually belonged to one of the accused himself. Lastly, he

has urged that on the evidence available on record two views were possible

and since the High Court had, on appraisal of evidence, found the

prosecution case to be doubtful, this Court should not interfere in an appeal

against acquittal. In support of this submission, learned counsel has placed

reliance on Ashok Kumar v. State of Rajasthan AIR 1990 SC 2134, Arun

Kumar & Anr. v. State of U.P. 1989 Supp. (2) SCC 322 and Bharwad

Jakshibhai Nagjibhai & Ors. v. State of Gujarat 1995 (5) SCC 602.

6. We have considered the submissions made by the learned counsel for

the parties and have gone through the entire evidence which is available on

record. The judgment of the High Court, with all respects, is most cryptic

and highly unsatisfactory. In a murder case based upon direct eye-witness

account it is absolutely necessary to thoroughly examine the testimony of the

eye-witnesses in order to ascertain whether they had really seen the

occurrence and whether the statement given by them appears to be natural

and truthful and finds corroboration from the medical evidence on record.

In the present case 11 eye-witnesses have fully supported the prosecution

case. Out of these 11 witnesses 5 were injured witnesses who had received

serious gunshot injuries. Their presence on the spot, therefore, cannot be

doubted in any manner. These witnesses have consistently stated that 5

persons, namely, Bhawani, Hari Singh, Kishanlal, Ramjilal and Amilal came

inside Nohara and repeatedly fired from the weapons which they were

carrying. According to the eye-witness account Deshraj and Hoshiar

received gunshot injuries and died on the spot. The injuries sustained by

these persons have been proved by the statement of PW26 Dr. Srichand

Sharma, who conducted post-mortem examination on their bodies.

Amongst the non-injured witnesses PW11 Dhanni is wife and PW12 Lali is

daughter of Hoshiar deceased and there is no reason to doubt their presence

on the spot. Similarly, PW13 Sajana is daughter and PW 14 Sarwan is wife

of Badlu and their presence on the place of occurrence cannot be doubted as

their house is situate at the corner of Nohara. Their testimony finds

complete corroboration from the medical evidence. In fact, the testimony of

five injured witnesses is more than sufficient to establish the charge against

the accused-respondents. However, the High Court did not at all advert to

this important piece of evidence and has chosen to rely upon some trifling

and insignificant circumstances to discard the prosecution case.

7. Chapter XXIX of the Code of Criminal Procedure deals with appeals

and Section 385 deals with procedure for hearing appeals not dismissed

summarily and Section 386 deals with power of the appellate Court. The

content and scope of these provisions was recently explained by a Bench to

which two of us were parties in Amar Singh v. Balwinder Singh & Ors. JT

2003 (2) SC 1 and relevant part of para 7 reads as under :

"7. â\200¦â\200¦â\200¦â\200¦â\200¦Section 385 Cr.P.C. lays down the procedure

for hearing appeal not dismissed summarily and sub-section (2)

thereof casts an obligation to send for the records of the case

and to hear the parties. Section 386 Cr.P.C. lays down that

after perusing such record and hearing the appellant or his

pleader and the Public Prosecutor, the Appellate Court may, in

an appeal from conviction, reverse the finding and sentence and

acquit or discharge the accused or order him to be re-tried by a

Court of competent jurisdiction. It is, therefore, mandatory for

the Appellate Court to peruse the record which will necessarily

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mean the statement of the witnesses. In a case based upon

direct eye-witness account the testimony of the eye-witnesses is

of paramount importance and if the Appellate Court reverses

the finding recorded by the Trial Court and acquits the accused

without considering or examining the testimony of the eye-

witnesses, it will be a clear infraction of Section 386 Cr.P.C.

In Biswanath Ghosh v. State of West Bengal & Ors. AIR 1987

SC 1155 it was held that where the High Court acquitted the

accused in appeal against conviction without waiting for arrival

of records from the Sessions Court and without perusing

evidence adduced by prosecution, there was a flagrant mis-

carriage of justice and the order of acquittal was liable to be set

aside. It was further held that the fact that the Public

Prosecutor conceded that there was no evidence, was not

enough and the High Court had to satisfy itself upon perusal of

the records that there was no reliable and credible evidence to

warrant the conviction of the accused. In State of UP v. Sahai

& Ors. AIR 1981 SC 1442 it was observed that where the High

Court has not cared to examine the details of the intrinsic merits

of the evidence of the eye-witnesses and has rejected their

evidence on the general grounds, the order of acquittal passed

by the High Court resulted in a gross and substantial mis-

carriage of justice so as to invoke extra-ordinary jurisdiction of

Supreme Court under Article 136 of the Constitution."

Since in the present case, the High Court has reversed the finding

recorded by the trial Court without considering and taking into account the

testimony of eye-witnesses, there is a clear infraction of Section 386 Cr.P.C.

and the order of acquittal passed by it is likely to be set aside on account of

this serious error.

8. Relying upon the testimony of PW4 Ram Singh, PW8 Daulat Ram

and PW9 Ratan, the High Court has held that there was cross firing. These

witnesses had not supported the prosecution case and had been declared

hostile. PW4 has stated that there was exchange of brickbats in which he

also received some injury and accordingly he took shelter inside a 'chappar'

and thereafter he heard two or three loud sounds like that of crackers. He

further stated that he did not see any person firing from gun or pistol. The

High Court has misread his testimony while observing that the witness has

stated that there was cross firing. PW8 Daulat Ram is resident of village

Kalyanpur, Tehsil Behrod. He says that he had gone to village Bhajnawas

to purchase a bullock. Similarly, PW9 Ram Ratan is resident of village

Barod, Tehsil Behrod. Both of them do not belong to village Bhajnawas

and have clearly stated that they do not know or identify the accused-

respondents Bhawani and Hari Singh and also the three absconding accused.

These witnesses having stated that they do not know or identify the five

accused who are alleged to have been armed with fire arms and are alleged

to have caused injuries to the injured and deceased, their testimony to the

effect that there was a cross firing is absolutely meaningless. Such a

statement that there was a cross firing can only be given by a person who

knows and identifies both the parties namely the accused and also the

complainant party (the injured and the deceased). The High Court has

placed great reliance upon the circumstance of cross firing for doubting the

prosecution case. The other reason given for acquitting the accused has,

therefore, no basis at all.

9. The fact that the witness was declared hostile by the Court at the

request of the prosecuting counsel and he was allowed to cross-examine the

witness, no doubt furnishes no justification for rejecting enbloc the evidence

of the witness. But the Court has at least to be aware that prima facie, a

witness who makes different statements at different times has no regard for

truth. His evidence has to be read and considered as a whole with a view to

find out whether any weight should be attached to the same. The Court

should be slow to act on the testimony of such a witness and, normally, it

should look for corroboration to his evidence. The High Court has accepted

the testimony of the hostile witnesses as gospel truth for throwing overboard

the prosecution case which had been fully established by the testimony of

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several eye witnesses, which was of unimpeachable character. The

approach of the High Court in dealing with the case, to say the least, is

wholly fallacious.

10. The High Court has extensively relied upon the site plan prepared by

the investigating officer for discarding the prosecution case and for this

purpose has referred to the place from where the accused are alleged to have

entered the Nohara, the place from where they are alleged to have fired upon

the deceased and also has drawn an inference that the place wherefrom the

accused are alleged to have fired upon the deceased, the shot could not have

hit the houses on the eastern side of the Nohara. Many things mentioned in

the site plan have been noted by the investigating officer on the basis of the

statements given by the witnesses. Obviously, the place from where the

accused entered the Nohara and the place from where they resorted to firing

is based upon the statement of the witnesses. These are clearly hit by

Section 162 Cr.P.C. What the investigating officer personally saw and noted

alone would be admissible. This legal position was explained in Tori Singh

& Anr. v. State of U.P. AIR 1962 SC 399 in following words :

"A rough sketch map prepared by the sub-inspector on the basis

of statements made to him by witnesses during the course of

investigation and showing the place where the deceased was hit

and also the places where the witnesses were at the time of the

incident would not be admissible in evidence in view of the

provisions of S.162 of the Code of Criminal Procedure, for it is

in effect nothing more than the statement of the Sub-Inspector

that the eye-witnesses told him that the deceased was at such

and such place at the time when he was hit. The sketch-map

would be admissible so far as it indicates all that the Sub-

Inspector saw himself at the spot; but any mark put on the

sketch-map based on the statements made by the witnesses to

the Sub-Inspector would be inadmissible in view of the clear

provisions of S.162 of the Code of Criminal Procedure as it will

be no more than a statement made to the police during

investigation. Therefore, such marks on the map cannot be

used to found any argument as to the improbability of the

deceased being hit on that part of the body where he was

actually injured, if he was standing at the spot marked on the

sketch-map."

Therefore, the findings recorded by the High Court on the basis of the

site plan prepared by the investigating officer whereby it discarded the

prosecution case is clearly illegal being based upon inadmissible evidence

and has to be set aside.

11. The High Court has also relied upon some very trifling and

insignificant matters like recovery of some live and empty cartridges which

the counsel for the accused before it submitted to be that of a 303 bore

rivolver or gun. Relying upon this recovery, it has been held that as

according to the eye-witnesses none of the accused had a 303 rivolver or

gun, the prosecution case was rendered doubtful. The eye-witnesses have

consistently deposed that Hari Singh and Amilal, accused were armed with

country-made pistols and in such cases it is difficult to visualize what was

the nature of the cartridges or bullets used. Therefore, even assuming that

some empty cartridges of 303 bore were recovered, it could not affect the

prosecution case in any manner.

12. Having given our careful consideration to the material on record, we

are clearly of the opinion that the prosecution had succeeded in establishing

its case against the accused-respondents beyond any shadow of doubt and

the learned Additional Sessions Judge had rightly convicted and sentenced

them. The judgment of the High Court, in our opinion, is wholly illegal

and perverse. It is not a case where two views are possible. In fact, on the

evidence available on record, the only conclusion which can be drawn is that

the prosecution had succeeded in establishing its case beyond any shadow of

doubt and accused-respondents are clearly guilty of the charges levelled

against them.

13. In the result, the appeal is allowed and the judgment and order dated

31.1.1991 of the High Court is set aside and that of the Additional Sessions

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Judge is restored. The accused-respondents shall undergo the sentence

imposed upon them. The CJM concerned shall take all steps available in

law to take the accused-respondents in custody.