& Ors Vs. State of Rajasthan  Insc 163 (15 March 2004)
Hegde & B.P. Singh B.P.Singh, J.
this appeal by special leave the appellants are Ram Swaroop and his two sons
Ram Kalyan and Hiralal. They alongwith two others namely, - Dakhan, wife of Ram
Swaroop and Ram Kanya wife of Ram Kalyan were tried by the Additional District
& Sessions Judge, Bundi, in Sessions Case No. 55 of 1986 charged variously
of offences under Sections 302, 302/34 and 323 IPC.
the case of the prosecution that in the occurrence giving rise to the instant
appeal, they had assaulted Bhanwarlal, brother of appellant Ram Swaroop, who
succumbed to his injuries, and had assaulted and caused injuries to Ram Kanwari
(PW-9), wife of the deceased and Madan Lal (PW-8), son of the deceased. The
trial court after an exhaustive consideration of the evidence on record came to
the conclusion that the prosecution had failed to prove its case beyond
reasonable doubt. The witnesses examined by the prosecution in support of its
case were not found to be reliable, their evidence was not consistent with the
medical evidence on record, and the version disclosed by them was inconsistent.
In view of these findings, the trial court acquitted them of all the charges levelled
appeal the High Court affirmed the acquittal of the two female accused, but
while acquitting the appellants of the offence punishable under Section 302 IPC
convicted them under Section 304 Part II and Section 323 IPC. Appellant Ram Swaroop
was sentenced to undergo four years' imprisonment and to pay a fine of Rs.100/-
under Section 304 Part II IPC and to undergo six months' imprisonment for the
offence under Section 323 IPC. Appellants Ram Kalyan and Hiralal were sentenced
to undergo four years' imprisonment for committing the offence under Section
304 read with Section 34 IPC and six months' imprisonment for the offence under
Section 323 IPC.
sentences were directed to run concurrently.
occurrence in question is alleged to have taken place at about 6.00 a.m. on 6th June, 1986.
A First Information Report was lodged by Madan Lal (PW-8), son of the deceased,
at 8.45 a.m. at P.S. Sadar, Bundi. It was
reported by the informant that in the morning at about 6.00 a.m. his aunt Dakhan
started abusing his mother Ram Kanwari (PW-9) on account of the fact that she
had plastered with mud a common wall between the houses of the accused and the
deceased. His father Bhanwarlal, deceased, approached Chaturbhuj (not examined)
and Gopal (PW-7), who were sitting on the platform near Shiva Temple requesting them to persuade Dakhan not to abuse his wife.
Soon thereafter appellant Ram Swaroop, appellant No.1, and his son Ram Kalyan
and Hiralal, appellants 2 and 3 came running from their house to the said platform
of Shiva Temple. Ram Swaroop assaulted Bhanwarlal with a 'lathi' several
times with a view to killing him. He fell down and became unconscious. When the
informant was attempting to run to the place of occurrence and had come in
front of the house of appellant Ram Swaroop, Dakhan and Ram Kanya (both since
acquitted) caught hold of him and beat him with sticks. In the meantime the
appellants came there and Hiralal hit him on his head with a 'lathi' while Ram Kalyan
hit him with a 'lathi' on both his elbows and on his right leg. Ram Swaroop
assaulted him with a 'lathi' on his back and hands.
his mother came to his rescue, Dakhan and Ram Kanwari beat her with sticks.
Seeing the occurrence several persons came running to the place of occurrence
which included Chandra Dutt (PW-3), Gopal (PW-7), Mohan Lal (PW-12) and Nanda
(PW-13). His father was removed in an unconscious condition to the police
basis of the above report a crime was registered under Sections 307/148/341/323
IPC but after the death of Bhanwarlal Section 302 IPC was added.
adverting to the evidence on record, we may notice that the members of the
prosecution party and the defence party belong to the same family, the deceased
being the brother of appellant No.1, Ram Swaroop while appellant Nos. 2 and 3
are the sons of Ram Swaroop. It also appears from the record that PW-7 Gopal
and PW-10 Kishore are their collaterals. The houses of Ram Swaroop and Bhanwarlal
are adjacent to each other. While proceeding towards the platform of Shiva Temple the house of the deceased comes first followed by the house
of the appellants and thereafter the house of Kishore (PW-10). The platform of
the temple is in-front of the house of Kishore on the other side of the road.
witnesses were examined by the prosecution in support of its case and out of
them, the alleged eye witnesses were Chandra Dutt (PW-3), Gopal (PW-7), Madan Lal
(PW-8), Ram Kanwari (PW-9), Kishore (PW-10), Mohan Lal (PW-12), and Nanda
(PW-13). PWs, 3, 7, 10 & 12 were declared hostile by the prosecution.
However, the High Court has relied upon the testimony of PWs. 7, 8, 9 and 10 to
record the order of conviction against the appellants.
shall confine our discussion to the evidence of these witnesses since the other
witnesses are not relevant for the disposal of this appeal. Gopal PW-7 deposed
that on the date of occurrence he alongwith Kishore (PW-10) was sitting on the
platform outside the house of Kishore. At that time Bhanwarlal approached them.
In the meantime the three appellants came and fought with deceased Bhanwarlal.
According to this witness Ram Swaroop assaulted Bhanwarlal on his head with a 'lathi'
while Ram Kalyan assaulted him with a 'lathi' on his head and chest.
struck the deceased on his chest with his 'lathi'. As a result of the injuries
caused to him Bhanwarlal became unconscious. According to this witness, after
injuries had been caused to Bhanwarlal other members of his family came there.
female had accompanied the three appellants who had assaulted Bhanwarlal. He
also stated that nothing happened to Madan Lal (PW-8) and Ram Kanwari (PW-9).
The evidence of this witness discloses they were the only eye witnesses to the
occurrence. PWs. 8 and 9 came after the occurrence, as such, they were not eye
witnesses. Further they were not assaulted in the course of the occurrence by
anyone. This witness was declared hostile and was cross-examined at length by
reference to the earlier statement made by him in the course of investigation.
As to the manner of occurrence he stated that Ram Swaroop had struck Bhanwarlal
4 or 5 times with his 'lathi' while Ram Kalyan also assaulted him 4-5 times on
the head and 4-5 times on his chest. Similarly Hiralal also struck on the chest
of Bhanwarlal 4-5 times. When confronted with his statement made in the course
of investigation, he stated that he named Ram Kalyan and Hiralal as the
assailants of Bhanwarlal but he could not explain why their names were not
found mentioned in his statement. He also admitted that a criminal case had
been lodged against him of assaulting appellant Ram Swaroop and his wife.
Kishore deposed that on the date of occurrence he was sitting on the platform
of Shiva Temple and some others were also present whom he could not name. He
witnessed Ram Kalyan and Ram Swaroop giving 'lathi' blows on the head of Bhanwarlal
while Hira Lal gave 'lathi' blow on the chest and legs of Bhanwarlal. No woman
had assaulted Bhanwarlal in his presence nor did he see any female causing
injury either to Madan Lal (PW-8) or his mother Ram Kanwari (PW-9). He further
asserted that apart from him, Kanha and his son-in-law, no one else had
witnessed the occurrence. This witness was also declared hostile since he did
not support the case of the prosecution. In the course of his cross-examination
he was confronted with his statement made in the course of investigation where
he had not stated that Ram Kalyan had assaulted Bhanwarlal. He further stated
that Bhanwarlal deceased had been given several injuries on his head.
is the son of the deceased who had lodged the first information report.
Contrary to the statement made in his earliest report he stated that when his
father was talking to Kishore (PW-10) and Gopal (PW-7) the three appellants
appeared with 'lathies' and all of them assaulted his father.
assaulted him on his head as well as his chest. His father fell down after
receiving injuries. Later Dakhan and Ram Kanya also came to the place of
occurrence and assaulted him and his mother. Appellant Ram Kalyan had also
caused injury on his forehead with his 'lathi' and thereafter all the three
appellants assaulted him on his head and thigh with 'lathies' According to this
witness Ram Swaroop struck only once on the head of his father, apart from
assaulting him on his chest only once. However, Ram Kalyan assaulted on the
chest of his father several times and he could not count the number of blows
given by him. He also struck 2 to 5 times on the legs of his father but he
could not say with certainty as to how many injuries were caused on his legs. Hiralal
assaulted his father while he was lying down and caused 10 - 20 injuries on his
chest and legs. When confronted with his statement made in the first
information report where assault by Ram Kalyan and Hirallal on his father was
not mentioned, he could not explain why it was not so recorded. Contrary to the
statement in the first information report he stated that he had come to the
platform of Shiva Temple alongwith his father. He further asserted that he had
mentioned about the presence of Kishore (PW-10) in his report and he could not
say why his name was not mentioned in the report and it was stated that Chaturbhuj
and Gopal were sitting on the platform whom his father approached. He further
asserted that since he was standing at the place of occurrence it was wrong to
say that he had come later after hearing about the occurrence. But on being
further cross-examined he admitted that when he came out of his house he was
stopped in-front of the house of the appellants by the ladies and later the
appellants also came there and assaulted him. The appellants had come there
after assaulting his father Bhanwarlal.
deposition of Ram Kanwari (PW-9) is quite different. According to her when her
husband was talking to Kishore and Gopal, she alongwith her son Madan Lal had
followed her husband. When her husband was talking to those persons, appellant
Ram Kalyan came with a 'lathi' and caused injury on the head of her husband.
Thereafter Hiralal and Ram Swaroop came there with 'lathies' and then all the
three appellants assaulted her husband on different parts of his body.
was categoric that the injury on the head of her husband was inflicted by Hiralal,
and Ram Swaroop wounded the knees and hands of her husband. She also
categorically stated that Ram Swaroop had not assaulted her husband on his
head. She also stated that Dakhan and Ram Kanya assaulted her and her son Madan
with sticks and this occurrence took place after the assault on her husband.
She was confronted with her statement made in the course of investigation and
she denied that having heard the commotion she had come out of the house. She
asserted that she had in fact followed her husband and the statement to the
contrary recorded in her statement under Section 161 of the Code of Criminal
Procedure was not stated by her.
outset we may notice the injuries found on the person of the deceased. He had
suffered two incised injuries on his head and one bruised spot on the chest on
the left side. The doctor who performed the post-mortem examination on the body
of the deceased found only the following injuries :-
Incised injury 1 x = x = inch on the left side of the head at the parietal
Incised injury 1 x = inch on the right side of the head in the oxipetal region.
bruised stop of 3 c = inch on the chest in the left side."
to the doctor injury No.1 was sufficient to cause death in the ordinary course
of nature and injuries No. 1 and 3 jointly were sufficient to cause death of
the deceased in the ordinary course.
trial court considered the evidence of the eye witnesses and did not find them
to be reliable. So far as PW-9, Ram Kanwari is concerned her presence as an eye
witness was doubted by the trial court. According to her it was Ram Kalyan who
hit Bhanwarlal (deceased) on his head and not Ram Swaroop as deposed to by some
of the other witnesses. In fact she was categoric that Ram Swaroop did not
assault Bhanwarlal on his head. It was also found that though she alleged that Bhanwarlal
deceased was assaulted on his legs and hands by Ram Kalyan, the medical
evidence did not support these allegations as no injury was found on the hands
and legs of the deceased. It also appeared from the evidence of PW-13 that PW-9
was not present at the place of occurrence when Bhanwarlal was injured and she
came only later. Even the evidence of PWs. 10 and 12 was to the same effect.
Even the evidence of PW-8, her son, indicated that she could not be an eye
witness because according to PW-8, when he was being assaulted by the
appellants after they had assaulted his father, his mother, PW-9, came running
to protect him. Obviously, therefore, she could not be an eye witness to the
occurrence which had taken place earlier. Similarly Gopal (PW-7) clearly stated
that other members of the family of Bhanwarlal came only after the occurrence.
The trial court, therefore, concluded that Ram Kanwari (PW-9) cannot be said to
be an eye witness and, therefore, her evidence cannot be relied upon.
as Madan Lal (PW-8) is concerned, the trial court noticed that in the first
information report he had mentioned about Ram Swaroop causing an injury on the
head of his father.
was no allegation in the first information report that Ram Kalyan or Hiralal
assaulted his father, though it was stated that they had come running with Ram Swaroop.
In the course of his deposition he wanted the court to believe that all the
three appellants had assaulted his father. As to his presence at the place of
occurrence the version given by him in the course of his deposition is quite
different from what he stated in the first information report. In the first
information report he stated that when he came out of his house he was stopped
by Dakhan and Ram Kanya in front of the house of Ram Swaroop and they started
assaulting him there. Soon thereafter the appellants also came there and
assaulted him and his mother. In court he deposed that he had followed his
father Ram Swaroop and was present when the appellants assaulted his father
near the platform. Later Dakhan and Ram Kanya came and assaulted him and his
mother. The appellants also assaulted him on his head and thigh. The trial
court found that there was a conspicuous change of version by this witness
relating to the manner of occurrence. From his deposition it appeared that he
was with his father when he was assaulted and, therefore, witnessed the entire
occurrence. Later in his cross-examination he again supported the version
earlier given in the first information report that he was intercepted by Dakhan
and Ram Kanya in-front of the house of Ram Swaroop and that the appellants came
there and assaulted him. The trial court suspected that the witness was not a
truthful witness and that the version given by him in the course of his
deposition was quite at variance with what he stated in the first information
report. Apart from the fact that he implicated Ram Kalyan and Hiralal as well
in the assault on Bhanwarlal, even the nature of assault described by him in
the course of his deposition was quite different and not consistent with the
medical evidence on record. According to this witness all the three appellants
had assaulted Bhanwarlal with 'lathies' on his chest. According to him
appellant Ram Swaroop had inflicted injuries on the head about 5 times. Ram Kalyan
had inflicted several injuries on the chest of his father which he could not
count while Hiralal had struck several times, about 10 12 on the chest and
legs of his father. This was quite different from what was stated in the first
information report, namely that Bhanwarlal had been assaulted on his head by
Ram Swaroop only whereafter he fell down and became unconscious. The witness
was confronted with the statement made by him in the course of investigation
and it appears that the version disclosed by him in court was quite different
from the version stated in the course of his investigation. Contrary to the
manner of occurrence deposed to by this witness, only three injuries were found
on the person of the deceased. The trial court also discussed the evidence of
other witnesses such as PWs. 3, 7, 10, 12 and 13 and did not find them to be
reliable. As noticed earlier PWs. 3, 7 10 & 12 were declared hostile by the
High Court in appeal re-appreciated the evidence for itself. It no doubt
noticed the decisions of this Court which lay down the limitation on the powers
of appellate court in reversing an order of acquittal. The High Court observed
that the finding of the trial court could be reversed if the same was either
perverse or contrary to the evidence on record. We have perused the judgment of
the High Court. Though the High Court has referred very briefly to the findings
of the trial court, it does not appear from a perusal of the judgment that the
High Court has really applied its mind to the various reasons recorded by the
trial court for not relying upon the testimony of the eye witnesses. The High
Court has referred to the evidence of PWs. 7, 8, 9 and 10 only and relying upon
their evidence reversed the finding of acquittal recorded by the trial court.
So far as evidence of PWs. 7 and 10 is concerned, they were declared hostile by
the prosecution. It is no doubt true that merely because a witness is declared
hostile his evidence cannot be discarded. The fact that a witness has resiled
from the earlier statement made in the course of investigation puts the court
on guard and cautions the court against acceptance of such evidence without
satisfactory corroboration. We have gone through the evidence of these two
witnesses and we find that their evidence is wholly unreliable. Moreover if
their evidence is to be accepted, it must be held that PWs. 8 and 9 were not
eye witnesses at all. In any event PWs. 7 and 10 having been declared hostile
by the prosecution and the trial court having found their evidence to be
unreliable, there was really no justifiable reason for the High Court to take a
different view, particularly in an appeal against acquittal.
then left with the evidence of PW. 9, Ram Kanwari and PW-8, Madan lal. So far
as the evidence of PW-9 is concerned, having critically scrutinized her
evidence we find that she is not worthy of credit. According to her, it was Ram
Kalyan who assaulted the deceased on his head. This is contrary to the evidence
of other witnesses who stated that it was Ram Swaroop who assaulted the
deceased on his head. In fact in the first information report lodged by her son
PW-8 there is no mention of Ram Kalyan having caused any injury to Bhanwarlal.
Moreover the number and nature of injuries caused by the appellants, as deposed
to by this witness, is wholly inconsistent with the medical evidence on record.
There were only three injuries found on the person of the deceased whereas
according to her evidence as also the evidence of PW- 8, there should have been
many more injuries on the person of the deceased and on different parts of the
body, which is not the case. In fact the High Court has not even believed her
version with regard to the assault on her by Dakhan and Ram Kanya who have been
acquitted by the High Court. In these circumstances we find it unsafe to rely
upon the testimony of such a witness, particularly when the trial court after a
careful consideration of her evidence, and for good reasons, disbelieved her.
Lal, the first informant also does not appear to us to be a reliable witness.
The version disclosed by him as a witness is quite different from what he had
stated in the first information report lodged by him as also in his statement
recorded in the course of investigation. The trial court has considered his
evidence in detail and pointed out the inconsistencies in his evidence. It has
also found that the medical evidence does not corroborate his version because
if his version is to be believed, the deceased would have received many more
injuries and on different parts of the body. In fact on the basis of the
material on record it appears probable that this witness did not witness the
occurrence and came out of his house after he heard about the occurrence. He
falsely pretended to be an eye witness. The High Court found no inconsistency
in the evidence of PWs. 7, 8, 9 and 10. We fail to understand how this
conclusion can be accepted because if PWs. 7 and 10 are to be believed, PW-8 and
9 were not even present when the occurrence took place, and their claim to be
eye witnesses must be discarded. The High Court also found that the prosecution
evidence was corroborated by the medical evidence on record since all the
injuries found were caused by blunt weapon and were ante mortem in nature. What
the High Court failed to appreciate was that if the version of the occurrence
as deposed to by the witnesses, namely PWs. 8 and 9, is to be accepted, the
deceased would have suffered many more injuries and on different parts of the
body. The medical evidence, however, discloses that the deceased suffered only
three injuries, two on the head and one on the chest. It is, therefore, not
possible to hold that the evidence of eye witnesses is consistent with the
medical evidence on record.
dealing with the statement of Madan Lal under Section 161 of the Code of
Criminal Procedure the High Court noticed that neither in the first information
report nor in his statement made in the course of investigation, did PW.8
attribute any role to Ram Kalyan and Hiralal in the assault on Bhanwarlal, but
in the course of his deposition he clearly implicated them for causing several
injuries to Bhanwarlal. The High Court observed :- "It is true that in his
statement u/s. 161 Cr. P.C., no specific injury is attributed to Ram Kalyan and
Hiralal, but he clarified the factual aspect in court, merely on the basis of
such clarification in the court, his credibility should not be doubted
specially considering the fact that his presence is natural, his conduct his
natural, his version is corroborated by the medical report." We cannot
approve of this approach of the High Court because the version disclosed in the
first information report is so different from the version disclosed in the
course of deposition of PW-8 that it cannot be said to be merely clarificatory.
have also noticed that the High Court has attached undue importance to the
statements made in the course of investigation and recorded under Section 161
of the Code of Criminal Procedure. It is well settled that a statement recorded
under Section 161 of the Code of Criminal Procedure cannot be treated as
evidence in the criminal trial but may be used for the limited purpose of
impeaching the credibility of a witness. We find that in paragraph 6 of the
judgment, the High Court while dealing with the evidence of PW-7 has clearly
treated the statement of PW-7, recorded in the course of investigation, as
substantive evidence in this case. The High Court observed :- "He is
consistent in his statement U/s. 161 Cr. P.C.
while he along with Kishore (PW-10) were sitting in front of the house of Kishore,
which is just near the Shiv Temple, Ramswaroop and his sons Ram Kalyan and Hiralal
armed with lathies came and gave beating to Bhanwar Lal and specifically head
injury is attributed to Ramswaroop. In the statement in court, he only
attributed injuries to Hiralal and Ram Kalyan.
he is consistent on the fact that while Madan Lal and his mother came and tried
to save Bhanwar Lal from these persons, they were caught hold by Dakhan and Ram
Kanya and Dakhan and Ram Kanya have given beating to Mdan Lal and his
mother." In our view the High Court ought to have considered his
deposition rather than his statement recorded under Section 161 of the Code of
Criminal Procedure. The inconsistency between the two versions is obvious from
the fact that the prosecution had to declare the witness hostile. The approach
of the High Court, therefore, is clearly erroneous.
regard to the findings recorded by the trial court and having gone through the
evidence on record, we are of the view that this was not a case in which the
High Court ought to have interfered with the order of acquittal passed by the
trial court. It is well settled that if two views are reasonably possible on
the basis of the evidence on record, the view which favours the accused must be
preferred. Similarly it is well settled that if the view taken by the trial
court while acquitting the accused is a possible, reasonable view of the
evidence on record, the High Court ought not to interfere with such an order of
acquittal merely because it is possible to take the contrary view. It is not as
if the power of the High Court in any way is curtailed in appreciating the evidence
on record in an appeal against acquittal, but having done so, the High Court
ought not to interfere with an order of acquittal if the view taken by the
trial court is also a reasonable view of the evidence on record and the
findings recorded by the trial court are not manifestly erroneous, contrary to
the evidence on record or perverse.
result this appeal is allowed and the appellants are acquitted of all the
charges levelled against them. They are on bail. The bail bonds furnished by
them are discharged.