Rattanlal Vs. State of Jammu & Kashmir  Insc 386 (10
S.B. Sinha & Markandey Katju
S.B. SINHA, J :
This appeal is directed against a judgment and order dated 16.09.2005 passed
by a Division Bench of the High Court of Jammu & Kashmir in Acquittal
Appeal No. 41 of 1997 reversing an order of acquittal passed by the 2nd
Additional Sessions Judge , Jammu in Sessions case No. 42 of 1993.
The occurrence took place on 09.02.1993 at Village Rakh Muthi, Tehsil
Akhnoor. The first informant and his family were about to take their dinner.
Allegedly, the complainant party and the accused persons were not in talking
terms as the family was said to have been responsible for spreading a rumour in
the village that Appellant was maintaining illicit relation with the wife of
his brother Kaku Ram. Appellant, Kaku Ram and their father Sunderdas allegedly
came to the house of the complainant at 08.30 p.m. on the fateful day.
Allegedly, Rattanlal asked PW-Subhash Chander, son of the deceased Santosh
Kumar, to come out stating that Kaku Ram was calling him. Subhash Chander
thereupon came out followed by the complainant Pamma Ram, deceased Santosh
Kumar and PW-Ramesh Chander. Allegedly, when Subhash Chander reached the lane,
Kaku Ram asked him as to why he had been creating problems and inflicted a drat
blow on his forehead. Santosh Kumar (deceased) allegedly came forward to rescue
his son, whereupon Sunderdas exhorted Rattanlal (Appellant herein) to kill him
who in turn was said to have given a khukhri blow on him. A lathi blow was also
said to have been inflicted on Ramesh Chandra by Sunderdas. An oral report was
made to the Police Post Jurian at about 09.30 p.m., which was recorded as DDR
No. 16, copy of which was sent to Police Station Akhnoor, whereupon a First Information
Report under Section 307/34 RPC and 4/27 LA.A. was lodged on 10.02.1993. The
deceased and the injured were medically examined and were thereafter referred
to Sub District Hospital Akhnoor, wherefrom the deceased and Subhash Chander
were further referred to SMGS Hospital, Jammu for treatment. Santosh Kumar
succumbed to his injuries at the said hospital.
The prosecution in support of its case examined a large number of witnesses.
The learned Trial Judge, however, recorded a judgment of acquittal raising a
number of doubts not only in regard to availability of sufficient light to
identify the accused, but also having regard to the grave inconsistencies in
the depositions of the witnesses, inconsistencies in the evidences of two
medical experts in regard to number, nature and place of injuries,
inconsistencies in regard to the place of occurrence and non- examination of
the investigating officer.
The High Court on an appeal preferred thereagainst, as noticed hereinbefore,
reversed the said judgment, opining that prosecution has led sufficient
evidence establishing the charges against Appellant.
The High Court, however, while holding the appellant guilty under Section
302 R.P.C., held accused Kaku Ram to be guilty only under Section 324 R.P.C.
and sentenced him to undergo rigorous imprisonment for two years, whereas
Sunderdas was found guilty under Section 323 R.P.C. for causing simple injury
to PW-Ramesh Chander and sentenced him to undergo imprisonment for six months.
Sunderdas and Kaku Ram are not before us.
Mr. T.N. Razdan, the learned counsel appearing on behalf of Appellant,
submitted that the High Court committed a manifest error in passing the
impugned judgment insofar it failed to take into consideration all the findings
of the learned Trial Judge and without arriving at a conclusion that its
findings were perverse. The learned counsel would submit that it is now
well-settled that if two views are possible, the judgment of acquittal should
not be interfered with.
Mr. Anis Suhrawady, the learned counsel appearing on behalf of Respondent,
on the other hand, would support the impugned judgment.
First Information Report, according to the prosecution, was recorded at
09.30 p.m. on the same day. The Investigating Officer, allegedly also recorded
the statement of the first informant on the said day. There appears to be some
inconsistencies in this behalf as PW-Dhano Devi stated :
"Police had come second day to inquire from me.
Police took my statement at home. In my presence police recorded only my
statement. Police on its own had received the information of occurrence. On
second day police had come at around 11 o' clock. I do not know whether police
had come on the day of occurrence"
The High Court, however, proceeded on the premise that it was the police
personnel, who had referred the injured persons for treatment to Preliminary
Health Centre, Jurian, which does not appear to be the prosecution case.
PW-Dhano Devi furthermore resiled from her own statements made under Section
161 of the Code of Criminal Procedure to state in her deposition :
"In my statement under section 161 Cr.PC where it is recorded that
"my husband Pamma Ram went to police Jourian to give information" is
wrong. Instead my husband went next day to police station to report"
However, PW-Ramesh Chander in his deposition stated :
"The Khairati Lal took me, my father and Subash on cart to Jurian
hospital. We were treated there. On second day of occurrence my father Santosh
Kumar breathed last. Accused family were not on talking terms with our family
and had no ill will"
PW-Vijay Kumar also stated in his deposition that Kaku Ram and Khairati Lal
witnessed the occurrence and were taken to hospital.
To the same extent is the evidence of PW-Subash Chander, which is in the
following terms :
"Thereafter Dundu Ram and Khairati Lal came on spot who lifted us all
and took to home. And took me and my father to hospital Jourian. Me and my
father were admitted in hospital. I was stitched. Jourian hospital sent us to
Akhnoor Hospital and Akhnoor hospital referred us to Jammu hospital. I remained
in Jammu hospital for one and quarter month"
The Assistant Sub Inspector Mohan Lal, in his deposition stated that the
injured had already reached hospital 10-15 minutes prior to his arrival there.
In regard to the arrest of the accused also, there appears to be some
inconsistencies. Whereas the High Court proceeded on the basis that Sunderdas
and Appellant were arrested on 11.02.1993 and Kaku Ram could not be arrested as
he had gone back to his unit, ASI Mohan Lal in his evidence stated that he not
only reached the place of occurrence and preserved blood at the place of
occurrence, but also interrogated the accused;
whereas according to Constable Kewal Krishan all the accused were in their
house at 02.30 p.m. next day and they were in four in number. The prosecution
has not been able to establish as to who the fourth accused was.
The learned Trial Judge had raised doubts in regard to the recovery of
weapons of the offence. According to the prosecution, witnesses Ramesh Chander
and Vijay Kumar the police had come to the spot on the next day and seized the
weapons of offence, whereas the recovery was shown to have taken place on the
next day i.e. only after the accused were taken in custody.
Even no nexus was shown as to whether the weapons seized had been used for
commission of the crime or not.
The learned Trial Judge disbelieved Vijay Kumar and Dhano Devi as being
eye-witnesses to the occurrence. The High Court held them to be so.
According to Vijay Kumar, the occurrence was witnessed by Kaku Ram and
Khairatilal. According to him, they came to the place of occurrence at a later
stage. If their evidence is taken at its face value, they came to the place of
occurrence even before PW-Subash Chander came out from his house.
The learned Trial Judge laid emphasis on the fact that there was total
darkness. It was so said also by Khairatilal. He also said that electricity
light was only in his house and not outside. According to Subhash Chander, he became
unconscious on receiving the assault. The High Court did not rely on that part
of his evidence as the said witness categorically stated that he did not know
as to how the occurrence took place.
It is unfortunate that the High Court in its judgment has considered only
the statements made by the witnesses Subhash Chander, Vijay Kumar, Ramesh
Chander and Dhano Devi and the statements of Khairati Lal and Dundu Ram in
their examination-in-chief and their cross-examination. The glaring
inconsistencies between the evidences of the witnesses, as has been recorded by
the learned Trial Judge, had also not been taken note of by the High Court. The
High Court also did not meet the reasonings of the learned Trial Judge.
Presence of Vijay Kumar and Dhano Devi at the place of occurrence was found
to be doubtful by the learned Trial Judge, inter alia, on the premise that
their names had not figured in the oral report lodged by Pamma Ram. Whereas
PW-Subhash Chander posed himself to be an eye-witness to the alleged assault on
his brother Ramesh Chander, according to the latter only after hearing hue and
cry raised by his mother and brother, he came to the place of occurrence.
Khairatilal, who was to said to be the first person to arrive at the place
of occurrence, was declared hostile. Although Kaku Ram was not declared hostile
but the prosecution had only put questions in regard to the seizure of the
blood stained earth and nothing more. According to Dhano Devi apart from
Khairatilal, Suraj Prakash and Gopal came on the spot. Why they had not been
examined remained unexplained. In regard to PW-Dhonda Ram, the High Court
"PW Dhonda Ram is another eye witnesses who was living in the same
vicinity where the occurrence took place, has stated that at 8 p.m. he was in
his house, accused Rattan had gone to the house of Subash Chander and told him
that he was being called by Kaku foji.
When Subhash reached near the gate, Sunderdas and Kaku accused were standing
in front of them. When Subahsh reached there accused sunder declared as to what
they were looking for, whereupon accused Kaku inflicted a Drat blow on the
heath of Santosh and Rattan inflicted a blow with khokhri on Subash causing
injury on his forehead. On being cross-examined he reiterated that the accused Kaku
had inflicted the injury with a Dah upon Santosh Kumar and while standing in
front of Santosh Kumar he and Pamma Ram were first to reach the spot. From the
evidence of PW Dhonda Ram it is thus manifest that he has given a description
contrary to the case of the prosecution."
According to the said witness, it was Kaku Ram who inflicted the 'drat' blow
on the deceased and not the Appellant. He has, thus, changed the name of the
assailant as also the weapon of offence. The findings of the High Court are without
any reason. There is no discussion as to why the defence would not be entitled
to take the benefit of his statement, who was not even declared hostile.
Dhano Devi also in her evidence alleged that Appellant had hit Santosh Kumar
(deceased) with khukhri, whereas accused Sunderdas inflicted a lathi blow on
The learned Trial Judge in his judgment opined that :
(i) the evidence of the prosecution witnesses that they were witnesses to
the occurrence is not correct and, thus, it would be unsafe to believe any of
them. Even Ramesh Chander had not supported the case that the accused persons
had made a joint assault upon deceased Santosh Kumar and PW Subash Chander.
(ii) It remained unexplained as to how deceased Santosh Kumar reached the
spot earlier than PW-Ramesh Chander or during the occurrence;
(iii) Ramesh Chander did not make any attempt to rescue his brother Subash
Chander, which was unnatural;
(iv) If PW-Vijay Kuamr is to be believed, the same stands contradicted by
Ramesh Chander. Both of them contradicted each other in the manner in which the
assault took place. PW-Vijay Kumar nowhere stated that that PW-Ramesh Chander,
Dhano Devi or Pushpa Devi were present at the spot. On the other hand, they
stated that they had come thereafter.
The learned Trial Judge also raised a doubt in regard to the availability of
sufficient light at the place of occurrence. A great deal of emphasis was laid
in regard to the major contradictions on materials brought on record between
the ocular and medical evidence. The learned Trial Judge relied upon evidence
of Dr. R.K. Gupta. The contradictions in the medical report are evident from
the following observations of the learned Trial Judge :
"PW Dr. R.K. Gupta has stated that on 9.2.1993 he examined deceased
Santosh Kumar at 9.30 p.m. at PHC Jordian and found the following injury :
1) An incised wound on the head parietal region 4'x3x1/2' bleeding present
vertically placed. Oozing of blood from parietal region multiple lacerations.
Whereas PW Dr. Anayat Ullah Sheikh Assistant Professor Medical College, who
conducted the autopsy on the dead body of Santosh Kumar found the following
1. A 2cm abrasion with fresh scab on the nose in its upper third region with
fracture of the bones underneath;
2. A lacerated wound on the occipital region with extra vacation of blood on
the occipital region of scalp. =' diameter depressed fracture of occipital
In the post-mortem certificate, Injury No. 2 was shown to be 1="
depressed fracture of bones. Dr. R.K. Gupta had not given any opinion to the
police in regard thereto. He could not say as to the said injury could have
been caused by the assailant upon the deceased with what type of weapon. The
'Khukhri' was shown to him to which he stated that injury could be caused by
it, whereas Dr. Inayat Ullah Sheikh categorically stated that injury no. 2
could only be possible by using a blunt object with a striking surface in the
measurement of =" in diameter e.g. hammer. In regard to injury no. 1, his
opinion was that the same could be possible by a fall or striking on hard
The learned Trial Judge also took serious note of the fact that report of
the X-Ray taken by the Radiologist had not been brought on records. Even the
sky- gram of the deceased had not been produced. The court, thus, was deprived
of an opportunity from considering a part of the medical evidence. An adverse
inference was rightly drawn by the learned judge as no explanation was therefor
was offered. The learned Trial Judge furthermore wondered as regards the truth
in the prosecution case as disclosed by one of the prosecution witnesses,
namely, Harbans Lal, who had stated that son of deceased had informed him that
he was assaulted by someone. If the prosecution case is to be accepted, the
names of the assailants were known to the deceased as also his son. No
independent witnesses like Numberdar and Chowkidar was examined to prove
disclosure statement of the accused persons and consequent recovery of the
weapons of the offence. The learned Trial Judge furthermore noticed that
non-examination of the Investigating Officer had seriously prejudiced the
In Samghaji Hariba Patil v. State of Karnataka [(2006) 10 SCC 494], this
Court held :
"We have noticed hereinbefore that the High Court has taken a contrary
view. Had the High Court been the first court, probably its view could have
been upheld, but it was dealing with a judgment of acquittal. We have taken
notice of the depositions of the main prosecution witnesses only to show that
the view of the learned Trial Judge cannot be said to be perverse or the same
was not possible to be taken. While dealing with a case of acquittal, it is
well known, the High Court shall not ordinarily overturn a judgment if two
views are possible"
[See also Kallu alias Masih and Others v. State of M.P. (2006) 10 SCC 313;
Chandrappa & Others v. State of Karnataka 2007 (3) SCALE 90; and Swami
Prasad v. State of Madhya Pradesh 2007 (4) SCALE 181- Paras 26 and 27].
We, therefore, are of the opinion that the judgment of the learned Judge
cannot be said to be a view which was not possible to be taken.
Unfortunately, all these aspects of the matter had not been considered by
the High Court in their proper perspective.
We, therefore, are of the opinion that the impugned judgment cannot be
sustained, which is set aside accordingly. The appeal is allowed. Appellant
shall be released forthwith, if not required in any other case.