Bhagwan Das Vs. The State of Rajasthan
 INSC 28 (2 April 1957)
BHAGWATI, NATWARLAL H.
CITATION: 1957 AIR 589 1957 SCR 854
Appeal against acquittal-When High Court may
interfere--Dying declaration--Value of-Expert evidence--Discrediting by
reference to text books-Practice--Appreciation of evidence--Inter-ference by
The High Court should not set aside an
acquittal unless there are "substantial and compelling" reasons for
Surajpal Singh v. State, (1952) S.C.R. 193,
Ajmer Singh v. The State of Punjab, (1953) S.C.R. 418, Aher Raja Khima v. The
State of Saurashtra, (1955) 2 S.C.R. 1285, followed.
It is not a satisfactory way of disposing of
the evidence of an expert witness to discredit it by reference to text books
unless the passages which are sought to discredit his opinion are put to him. Sunderlal
v. The State of Madhya Pradesh, A.I.R. (1954) S.C. 28, followed.
Although the Supreme Court will not interfere
with the find- ings of the High Court because its conclusions on the evidence
as to the guilt or innocence of the accused differ from that of the High Court,
yet where the evidence is such that no tribunal could legitimately infer from
it that the accused is guilty the Supreme Court would set aside the conviction.
Stephen Seneviratne v. The King, A.I.R.
(1936) P.C. 289, relied on.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 50 of 1957.
Appeal by special leave from the judgment and
order dated January 27, 1956, of the Rajasthan High Court at Jodhpur in
Criminal Appeal No. 119 of 1954 arising out of the judgment and order dated
March 23, 1954, of the Court of the Sessions Judge at Ganganagar in Original
Criminal Case No. 74 of 1953.
Mohan Behari Lal, for the appellant.
Kan Singh and T. M. Sen, for the respondent.
1957 April 2. The Judgment of the Court was
delivered by KAPUR J.-Bhagwandas and Netram are two brothers who along with Mt.
Rameshwari, a daughter 855 of the former, were tried by the Sessions Judge of
Ganganagar for an offence under s. 302 of the Indian Penal Code but were
acquitted. On appeal to the High Court of Rajasthan, the order of acquittal of
Bhagwandas and Netram was reversed and they were convicted under s.302 read
with s. 34 and sentenced to transportation for life. The order as to Mt.
Rameshwari was affirmed and she was acquitted.
The convicted persons have obtained Special
Leave to appeal under Art. 136 of the Constitution.
he appeal is founded on two grounds:
(1) that there was no evidence against the
appellants sufficient to warrant a conviction and (2) that there were no
compelling reasons for reversal of the judgment of acquittal.
According to the prosecution the canal after
a temporary' closure restarted flowing on May 5, 1953. And although it was not
his turn of water the deceased Shivlal was allowed to take the water to
irrigate his fields. On May 6 the canal was flowing to its full capacity and
Shivlal was to take his turn of water which was of 6 hours duration from 8 a.m.
to 2 p.m. but he watered his lands from 8 a.m. to 10-30 a.m. because the
village diggi (pond) which was empty had to be filled up. Mirab Ram Karan P. W.
1 with the consent of Shivlal diverted the water for the purpose of filling up
the diggi, promising him (Shivlal) to. get him the rest of his turn of water,
i.e., for 3-1/2 hours after the diggi had been filled up. The diggi was filled
up by 1 p.m. on the 7th. Shivlal then wanted to divert the water into his field
but Bhagwandas prevented him from doing so claiming the turn to be his.
According to Ram Karan Mirab P. W. I the turn of Bhagwandas was after Surta
whose turn was next to that of Shivlal.
As Shivlal was prevented from taking his turn
of water he started walking towards the village saying that he would go and
speak to Mirab. Bhagwandas thereupon shouted that " the enemy was going
" and hit Shivlal on the head with a kassi.
Netram then hit Shivlal with lathi as a
result of which he fell down and then both beat Shivlal, and 856 Mt. Rameshwari
also, it was alleged, joined in this beating with a wooden handle of a kassi.
This occurrence was witnessed by Hazari P. W. 3 who was grazing his camels in
the field of Surta. He went up to the place where the beating was going on and
shouted to the assailants who " went away " leaving their kassi
behind. Hazari found Shivlal seriously injured and unconscious. He sprinkled
some water on his face which revived Shivlal and the latter asked Hazari to
take him to the Thana but Hazari helped him to walk up to the Khala (threshing
floor) of Hukma which was at a short distance from that place. Hazari P. W. 3
has stated that he left Shivlal with Jora, Jagmal, Bhogar, Begaram and Binja,
and on their asking him he (Hazari) told them what he had seen. Shivlal was
then taken to Raisinghnagar by Bhaggu and Jagmal on a she-camel to the shop of
Gyani ham P. W. 4. There Shivlal told Gyani Ram also that Bhagwandas, Netram
and Rameshwari had assaulted him because of the water' dispute and also asked
Gyani Ram to send for his son Ram Pratap and his Artya (Commission Agent)
Ishardas. Ram Pratap came at about 6 p. m. Shivlal repeated the story to him
and was then taken to the hospital by Jagmal, Bhaggu and others. At the
hospital he was treated by the doctor P. W. I I but died the following day
(8th) at 8-15 a. m.
The First Information Report was based on a
written report Ex. P-1 by Ram Pratap s/o Shivlal. It was recorded on May 7 at
about 7-30 p. m. The prosecution supported their case by the evidence of two
eye witnesses, dying declarations made to 3 persons and on the recovery of the
kassi. They produced two eye witnesses Begaram P. W. 2 and Hazari P. W. 3. The
dying declarations were made to three persons first to Jora P. W. 7, later to
Gyaniram P. W. 4 at his shop and lastly to Ram Pratap P. W. 5 who arrived at
the shop at 6 p. m. If the dying declaration was made to this witness it must
have been at that time.
According to the doctor's evidence Shivlal
was unconscious when he was brought to the hospital at 5 p. m, He had 15
injuries on his body, out of which 857 injury No. 1 was with a sharp-edged
weapon and injury No. 2 with a blunt weapon and both these injuries were
grievous and were " individually and collectively fatal sufficient to
cause death." The learned Sessions Judge disbelieved the whole evidence
and acquitted the accused. He was of the opinion that the evidence produced by
the prosecution was not " free from suspicion and not sufficient to
convict them ". Begaram P. W. 2 was disbelieved both by the Sessions Judge
and the High Court. The learned Sessions Judge described Hazari as a "
facile fluent liar " but his testimony was accepted by the High Court.
Both courts rejected the statement of Ram Pratap but the statements of Gyaniram
and Jora were accepted by the High Court although they were rejected by the
The High Court has relied upon the testimony
of one eye witness Hazari P. W. 3 and two witnesses before whom Shivlal is
alleged to have made two dying declarations. There are apparent contradictions
between the testimony of Hazari and Bega. The learned High Court Judges
disposed of this by saying that Bega's presence "on the spot is open to
grave doubts. As such it is, in our opinion, not proper to contradict the
statement of a man who was present on the spot by using the statement of
another man who was in all probability not there." The learned Judges have
made the following significant observation in regard to Hazari:
" It seems to us that Hazari had said
this because the prosecution was producing Bega, and he must have been asked to
say that Bega was also present. So far as the story of Hazari about -the
incident itself is concerned, nothing has been brought out in his
cross-examination to throw doubts on this part of his statement." They
also pointed out, but attached no importance, to other contradictions in the
statements of Hazari made before the trial court and before the Police. If as
observed by the learned Judges of the High Court, Hazari had mentioned the
presence of Bega merely I 858 because the latter was to be produced as a
prosecution witness and because he (Hazari) had been asked to mention it, then
it would detract so materially from his reliability that it would be dangerous
to accept his testimony as being of any great value which is still more
diminished by the finding as to the innocence of Mt. Rameshwari.' The other
piece of evidence which the prosecution relied upon was the two dying
declarations made by Shivlal to Gyaniram P. W. 4 and Jora P. W. 7. Besides the
infirmities which the testimony of these two witnesses (Gyaniram P. W. 4 and
Jora P. W. 1) suffered from due to material contradictions in their respective
statements made at various stages of the case and which have been pointed out
by the learned Sessions Judge who said about Gyaniram:
" In such a state of affairs I refuse to
put any weight and value to the statement of Gyaniram......... ........... ..
their evidence cannot be a sure foundation
for maintaining the conviction if the statement of Hazari the sole eye witness
is disregarded, as it must be disregarded in this case; because ordinarily a
dying declaration of the kind which the prosecution has relied upon is by
itself insufficient for sustaining a conviction on a charge of murder.
The learned Sessions Judge was of the opinion
that the evidence of the doctor P. W. II made the story that Shivlal could walk
for a little distance upto the Khala of Hukma or was able to talk so as to make
a dying declaration, improbable. But the learned Judges of the High Court
disposed of this matter by saying that the doctor was comparatively young and
that his statement was not in accord with the opinion expressed in books on
Medical Jurisprudence by authors like Modi and Lyon. But it cannot be said that
the opinions of these authors were given in regard to circumstances exactly
similar to those which arose in the case now before us nor is this a
satisfactory way of disposing of the evidence of an expert unless, the passages
which are sought to discredit his opinion are put to him.
This Court in Sundarlal v. The State of
Madhya Pradesh (1) disapproved of Judges drawing (1) A.I.R. 1954 S. C. 28 859
conclusions adverse to the accused by relying upon such passages in the absence
of their being put to medical witnesses. The learned Judges of the High Court
were, therefore, in error in accepting the testimony of these witnesses in
support of the correctness of the two dying declarations nor could the
statement of the deceased alleged to have been made in the circumstances of
this case be considered sufficient to support the conviction of the accused.
The recovery of the kassi is a wholly neutral circumstance because it has not
been proved that it belonged to Bhagwandas.
Although this Court will not interfere with
the findings of the High Court because its conclusions on the evidence as to
the guilt or innocence of the accused differ from that of the High Court, yet
where the evidence is such that no Tribunal could legitimately infer from it
that the accused is guilty this court would set aside the conviction. The
Judicial Committee of the Privy Council in Stephen Seneviratne v. The King (1)
in setting aside an order of conviction said :
". ...... there are here no grounds on
the evidence, taken as a whole, upon which any Tribunal could properly, as a
matter of legitimate inference, arrive at a conclusion that the appellant was
In our view the evidence in the present case
is of such quality and no legitimate inference of guilt of the accused could
-properly be drawn.
The second point on which the judgment of the
High Court is assailed is the lack of compelling reasons for setting aside the
judgment of acquittal.
This court has held that the High Court
should not set aside an acquittal unless there are " substantial and
compelling " reasons for doing so. Surajpal Singh v. State(1) Ajmer Singh
v. The State of Punjab (3) Aher Raja Khima v. The State of Saurastra (4). The
judgment of the High Court does not disclose any such reasons justifying
interference with the findings of the trial Court.
(1) A.I.R. 1936 P.C. 289, 299.
(2)  S.C.R. 193, 201.
(3)  S.C. R. 418, 423, (4)  2
860 We would, therefore, allow this appeal,
set aside the judgment of the Rajasthan High Court, restore that of the
Sessions Judge and order the acquittal of the accused.