Bheru Lal
& Ors. Vs. State of Rajasthan [2009] INSC 1422 (10 August 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.898
OF 2004 Bheru Lal & Ors. .... Appellants Versus State of Rajasthan .... Respondent
WITH
SPECIAL LEAVE PETITION (CRIMINAL) NO. 169 of 2005 State of Rajasthan
......Appellant Versus Girraj ......Respondent
V.S.
SIRPURKAR, J.
1.
This judgment will dispose of the Criminal Appeal No. 898 of 2004
filed by three appellants as also the Special Leave Petition filed by the State
of Rajasthan against the acquittal of one of the accused who was convicted by
the Trial Court but was acquitted by the High Court.
The three
accused persons, namely, original accused No. 1 Bheru Lal, original accused
No.3, Kailash Chandra and original accused No. 5, Purushottam have come up
before us challenging their conviction for various offences including offences
under Sections 147, 148, 302 read with Section 149, Indian Penal Code (for
short "IPC"), 436 read with Section 149, IPC and confirmed by the
High Court. Originally, as many as seven accused persons were tried for all
these offences.
However,
the Sessions Judge convicted in all five accused persons including the present
three appellants and two others, namely, Girraj, original accused No. 6 and
Gopal, original accused No.4. The High Court allowed the appeal of accused
Girraj and acquitted him. It confirmed the conviction and sentence of the
remaining four accused persons. In that, the Court convicted Bheru Lal for the
offence under Section 302, IPC simpliciter and for offence under Section 436
read with Section 34, IPC. The remaining three accused were also convicted for
the offence under Section 302 and Section 436 read with Section 34, IPC.
2.
In short, the High Court rejected the offences having been
committed by the unlawful assembly and set aside their convictions ordered by
the Trial Court which were in the aid of Section 149, IPC and held that the
offences were committed in furtherance of the common intention of the accused
persons. Out of the four accused persons so convicted, only three have come up
before us. Originally, the appeal seems to have been filed on behalf of all the
four accused including Gopal but the name of Gopal was thereafter removed from
the array of appellants. We enquired from the Registry as to whether Gopal had
filed any appeal but we were informed that there was no appeal filed by him. We
are, therefore, left with the appeal filed by the three appellants named above.
3.
Shortly stated the prosecution case is that one Basanti Bai, PW-7
lodged a report with police station Raipur, District Jhalawar on 26.10.1997 at
about 4:30 p.m. to the effect that her sons, Shayam Lal and Balkishan were
belaboured by the seven accused persons. It was further stated that the
appellant Bheru Lal and Kailash Chandra had inflicted sword blows on the left
and right hand and neck of Shayam Lal while appellant Purushottam and Gopal
gave sword and spear blows, respectively, on the back and head of Balkishan.
Thus all the appellants had indiscriminately inflicted injuries on the person
of deceased Shayam Lal and Balkishan, while appellant Girraj and Bheru Lal
crushed their heads with stones. It was further alleged that after this ghastly
incident, the appellants had set at fire the tractor trolley, stack of onion
and groundnut. Offence was registered on these basis and after due
investigation as many as seven persons came to be charged of offences under
Section 147, 148, 341, 302, IPC and in the alternative Section 302 read with
Sections 149, 436, IPC substantively as well as Section 436 read with Section
149, IPC as also Section 435 and 435 read with Section 149, IPC and Section 427
and in the alternative Section 427 read with Section 149, IPC. As has been
stated earlier two of the accused persons were acquitted by the Trial Court and
now we are left with this appeal at the instance of the three accused.
4.
Shri Sushil Kumar Jain, learned counsel appearing for the
appellants firstly urged that the evidence of the eye witness, namely, PW-7,
Basanti Bai and the other eye witnesses, namely, Ram Prasad (PW-3), Kanwar Lal
(PW-5) and Puri Lal (PW-6) was wrongly relied upon by the Trial Court as well
as the High Court. It was pointed out that barring Basanti Bai (PW-7), all
these witnesses had turned hostile and, therefore, the prosecution was left
with the evidence of Basanti Bai alone. Learned counsel urged that Basanti Bai
was the mother of the deceased persons and there was enmity between the accused
persons and her family which had emanated from the property dispute. Learned
counsel pointed out that both the deceased as well as the accused were
relatives of each other and there was a property feud amongst the two sides
which had caused this ghastly incident. Learned counsel dubbed the evidence of
Basanti Bai as being untrustworthy and unnatural. He further pointed out that
other witnesses, namely, Ram Prasad (PW-3), Kanwar Lal (PW-5) and Puri Lal
(PW-6) who were the occupants of the nearby places of the incident had refused
to support the prosecution as the accused persons had no hand in the incident
complained of. It was further suggested that Basanti Bai had claimed to have
seen the incident from a distance of about 200-250 steps and on that count also
she was not in a position to see the incident. However, she had given the
graphic description of the role played by each accused which makes her evidence
suspicious.
5.
Learned counsel also urged that a gun and Katta (country made
pistol) were found near the body of the deceased which suggested that the
deceased Shayam Lal and Balkishan had gone to the place of incident prepared
and with intention to cause grievous hurt or death of the appellant Kailash
Chandra. However, since the gun did not fire (on account of development of
dampness) they did not succeed in their object and, therefore, the villagers,
being angry killed the deceased on the place of the incident itself. It was
also pointed out that the appellant Kailash Chandra had 11 injuries on the various
parts of the body which remained unexplained by the prosecution and thus it was
obvious that the prosecution had not unfolded its case properly and had
suppressed the generis of the incident. Alternatively, the argument proceeds on
the basis that there was a right of private defence of body as well as the
property. It was also urged by the learned counsel that the so-called
discoveries of the weapons were farcical and further since the blood group of
the blood allegedly found on the weapons could not be decided that evidence was
also of no consequence. In short, learned counsel urged that the whole
prosecution story was unbelievable and, therefore, the appellants were entitled
to be acquitted.
6.
As against this the learned counsel appearing on behalf of the
State, Shri Manish Singhvi, Additional Advocate General for the State of
Rajasthan wholly supported the judgments and urged that the prosecution had
fully proved its version and the Courts below had rightly convicted the
accused-appellants. Shri Singhvi also pressed in service the appeal filed on
behalf of the State of Rajasthan against the acquittal of accused Girraj, and
pointed out that the accused Girraj could not have been acquitted as he was
present throughout and had taken active part in the whole affair. Shri Singhvi
severally criticized the High Court judgment in so far as it pertained to the
acquittal of accused Girraj.
7.
Basanti Bai, PW-7, undoubtedly, was an interested witness being
mother of the deceased persons. Some evidence has come on record that
everything was not well between the two families of the deceased and the
accused. Her evidence was, therefore, dubbed as the "evidence of an
interested witness". Her evidence was criticized as untrustworthy and
unnatural.
The other
witnesses, namely, Ram Prasad (PW-3), Kanwar Lal (PW-5) and Puri Lal (PW-6)
have not chosen to support the prosecution and they were rightly declared
hostile. We have, therefore, gone through the evidence of Basanti Bai very
closely. There can be no dispute that in her evidence, she has also roped in
Girraj (original accused No. 6), Badam Bai (co-accused) and Tara Bai
(co-accused) and that was an exaggeration on her part. She claimed to have seen
the incident from some distance, but has graphically described the role played
by accused Bheru Lal, Kailash Chandra and Purushottam, the appellants herein.
According to her, Bheru Lal had given a sword blow on the neck of Shayam Lal
and Kailash Chandra gave a sword blow on the hand of Shayam Lal, while Gopal
gave a blow with a sword on the neck of Balkishan and Purushottam hit Balkishan
with Ballam (spear like weapon). She has not stopped here, but has assigned a
role specifically to Girraj, Badam Bai and Tara Bai, as also her
daughters-in-law, saying that they also gave blows with the sticks. She then
described that Bheru Lal pelted stones on them and the other accused persons
also stoned them, as a result of which their heads were crushed. She has
thereafter said that even she was followed up to the house and thereafter, the accused
persons set articles in her house and tractor on fire. There could hardly be
any doubt regarding the presence of this witness on the spot. She candidly
admitted that when her sons Balkishan and Shayam Lal had left the house, they
might have taken gun and a katta (country made revolver) with them.
She,
however, denied that the said gun and the katta were lying near the bodies of
her sons. She naturally refuted the suggestions made to her that her sons had
gone armed only to give beating to Kailash Chandra and Purushottam. She also
refuted the suggestion that village persons had given beating to her sons. She
asserted that she did not see any injury on Kailash Chandra at the place of
occurrence and no such injury was caused to Kailash Chandra by any sharp edged
weapon.
8.
Significantly enough, there is not even an iota of
cross-examination in respect of the incident and her version about the assault
by the accused on her sons and the same has totally gone unchallenged. There
can be no dispute about her being an interested witness, as also her having
exaggerated her version. There can also be no dispute that she has specifically
denied there being any injuries on Kailash Chandra, which injuries were
ultimately proved. However, that by itself, will not make her evidence
unbelievable. We have taken into consideration that here was a mother, who was
deposing about the assault on her sons and she certainly would not be
interested in allowing the real culprits to go unpunished. The task of the
Courts is to separate the chaff from the grain and that is exactly what has
been done by the Trial Court, as well as, the Appellate Court. About the gun
and the katta being found near the body, the witness has specifically refuted
the suggestion that the deceased persons had gone there with an idea to assault
the accused persons. We are not much impressed by the argument of the Learned
Counsel for the appellants that this witness had tried to mislead the Court on
the genesis of the case and, therefore, her whole version becomes suspicious.
There is a definite ring of truth. There can be no doubt that the witness has
exaggerated, but as has been stated earlier, those exaggerations would have to
be ignored and have been rightly ignored. In fact, there were as many as 7 accused
persons. Accused Girraj and accused Tara Bai have already been acquitted by the
Courts below.
However,
merely because a witness exaggerates or is an interested witness, the evidence
cannot be thrown, where it is found that there is a ring of truth to the
version of the witness. The Court of facts, which appreciates the evidence,
should show that they were aware of the fact that the witness is an interested
witness. Once that realization comes from the evidence, then there is nothing
wrong if the evidence of such person is believed.
9.
It was suggested by Shri Jain that Basanti Bai had not admitted or
deposed about the injury suffered by the accused. Our attention was invited to
the evidence of DW-1, Dr. Chandra Kishore Srivastava and DW-2, Kailash Chandra.
Dr. Chandra Kishore Srivastava in his evidence has established that he had
examined Kailash Chandra and found that he had suffered as many as 11 injuries.
Kailash Chandra himself also, when he entered the witness box, established his
own injuries. There can be no dispute that Kailash Chandra had suffered
injuries on that day. The evidence of the doctor shows that he had suffered 10
incised wounds. Most of the injuries were on the left side of the body, one of
them on the left hand, one on left wrist, one on left palm and one on the
scapular region. The other injuries were on the right upper arm on the lower
side. The other injuries include two injuries on the right upper arm on the
lower side while one appears to be on left frontal part of the head 3 inch
above the left eyebrow. The doctor has certified that all these injuries
including even the contusion suffered was a simple injury, that is clear from
the report Ex. B-2. In his cross-examination, the doctor very specifically
admitted that none of the injury was serious in nature nor was any one of them
sufficient to cause death in the ordinary course of nature and they were
simple. It is true that Kailash Chandra had also given a report on which case
No. 190 of 1997 was registered. On the basis of this, the learned counsel
pointed out that if PW-7 Basanti Bai had not mentioned or denied these injuries
in her evidence then it was clear that she was lying in the most significant
point and thus was trying to hide the genesis of the incident and the prosecution
story, therefore, was shrouded in suspicion. Shri Jain, for this proposition,
has relied on a number of decisions like State of Rajasthan v. Madho & Anr.
[1991 Suppl.(2) SCC 396], State of Bihar v. Mohammad Khursheed [1971 (3) SCC
423]. We, therefore, examined her evidence from this angle also. On the other
hand, learned counsel appearing on behalf of the State relied on the judgment
reported in Jagdish v. State of Rajasthan [(1979) 2 SCC 178]. There can be no
dispute that this evidence was scanned by the trial Court and the Appellate
Court which held that the injuries, even if they were established to have been
suffered by Kailash Chandra, were extremely insignificant injuries and,
therefore, those injuries did not need any explanation on the part of the
prosecution. The witness undoubtedly states in her cross examination, "I
did not see any injury to the Kailash Chandra on spot. Kailash Chandra was not
injured with sharp weapon". In the judgment of Jagdish v. State of
Rajasthan [(1979) 2 SCC 178] this Court has specifically observed that:
"there
is an obligation on the prosecution to explain the injuries so as to satisfy
the Court as to the circumstances under which the occurrence originated. Before
this obligation is placed on the prosecution, two conditions must be satisfied:
(1) that
the injuries on the person of the accused must be very serious and severe and
not superficial;
(2) that
it must be shown that these injuries must have been caused at the time of the
occurrence in question."
10.
Thus it is very doubtful as to whether the injuries had been
caused at the time of occurrence as such.
11.
Shri Sushil Kumar Jain, appearing on behalf of the Learned Counsel
for the appellants spoke about the right of private defence on the basis of the
fact that Balkishan was armed with 12 Bore Gun and there was a katta being
carried by the other deceased. Kailash Chandra, undoubtedly, has suffered some
injuries, but all those injuries are simple in nature. We have seen the Injury
Report (Exhibit D-2), which suggests that they were very insignificant
injuries, which were placed not on the vital portions of the body. We are in
agreement with the High Court and the Trial Court that the non-explanation of
those injuries cannot be advantageous to the defence nor can it be said that
the prosecution, in not explaining those injuries, had suppressed the genesis
of the incident. We have very carefully seen the cross-examination of Basanti
Bai, who was not even asked about the deceased being armed with any sharp edged
weapon, so as to cause injuries to Kailash Chandra, who sustained about 10
incised wounds, attributable only to the assault by a sharp weapon. There was
no recovery of any sharp edged weapon from the place of incident or even from
the person of the deceased and even the Investigating Officer was not asked
anything about any sharp edged weapon being used by the deceased. The accused
persons had shown the courage to enter the witness box. We have seen their
evidence carefully. However, we are of the opinion that their evidence does not
take us too far nor is their evidence reliable in view of the inter se
contradictions in the evidence of Kailash Chandra and Bheru Lal regarding the
presence of Gopal and Girraj. Nothing has come out in the prosecution case,
suggesting that the appellants were put under the situation, where they could
reasonably had apprehended any grievous hurt to even one of them. On the other
hand, the defence came out with a fantastic theory that the deceased persons
were killed by the villagers.
12.
The law is now well settled that where there is a failure on the
part of the prosecution witness to explain injuries on the accused caused in
the same incident, implicit reliance cannot be placed on the prosecution which
suppressed part of the incident. The two rulings cited by Shri Jain do support
this proposition. The question is, however, whether the injuries suffered by
Kailash Chandra were actually caused during the incident and they were
substantial enough so as to attract the attention of the witness and whether
the witness had any opportunity to see the injuries as such. When Kailash
Chandra stepped into the witness box, he deposed that deceased Shayam Lal had a
spear in his hand and a loaded Katta in his pocket. He further evidence that
Balkishan and Shayam Lal abused his sister and mother and pointed out the gun
at them and when Balkishan's gun failed to fire, he attacked with sword on his
right hand at several places. He further asserted that had he not taken sword
in his hand, he would have died. In his examination- in-chief also he had
suggested that Balkishan had a sword besides a 12 bore loaded gun. In his cross
examination, he claimed complete ignorance as to what had happened with
Balkishan and Shayam Lal. He also went to the extent of suggesting that he did
not know as to how they died.
The
evidence of this witness has been disbelieved totally by both the Courts below.
It is very significant to see that the evidence of DW-2 Bherulal also is to the
same effect that Balkishan was beating Kailash Chandra with the sword and he
also had a gun with him. Bherulal was at least candid enough to admit that
Shayam Lal and Balkishan had died in the same incident, however, both these
witnesses brought about a fantastic theory that villagers had attacked
Balkishan and Shayam Lal and they were killed in the same incident. What is
most significant is that Kailash Chandra and Bherulal, after the incident,
chose to go to Sunair after five hours of the incident and did not go to Raipur
police station under which jurisdiction all this had taken place. It is after
reaching Sunair that Kailash Chandra chose to go to the hospital at Sunair. All
this has been considered by the Trial Court as also the Appellate Court and
both the Courts have come to the conclusion that both these witnesses were
unreliable witnesses. There can be no doubt that they claimed to have been
injured in the same incident but that by itself would not be sufficient because
there does not appear to be any sword seized by the police on the spot. If
Balkishan and Shayam Lal had carried a sword for injuring this witness and if
both of them died on the spot, surely the sword could not have disappeared.
13.
Therefore, both the Courts were right in disbelieving the story
put forth by these two accused-witnesses. However, the question still remains
that there were injuries which have been seen by the doctor much after the
incident. As per the evidence, the report was made in the police station Sunair
which was about 15 KM from the village Himmatgarh. There can be no dispute
about the proposition that the injuries on the person of the accused must be
explained. However, considering the overall evidence of the two defence
witnesses, it is extremely doubtful whether the injuries were caused during the
incident. This is apart from the fact that Basanti Bai who had seen the
incident from a distance could not have been in a position to even notice any
injury on the body of Kailash Chandra. She had afterall seen her two sons being
assaulted mercilessly and being dealt with by the accused. She, therefore,
asserted that she did not see any injury at that time on the person of Kailash
Chandra.
14.
In order to reap the benefit of the proposition laid down by this
Court, there must be an opportunity to the witness to watch and there must be
deliberate refusal on the part of the witness to explain the injuries if the
witness is not in a position to note the injuries or if the Court comes to the
conclusion that it was not possible for the witness to see any injuries or that
the injuries were not actually caused during the incident itself then the
defence will not be able to reap any benefit. We are, therefore, of the opinion
that Basanti Bai's evidence cannot be rejected on this point and that the Trial
and the Appellate Courts are right in relying on her evidence. Once Basanti
Bai's evidence is believed then there would be no question of going to any
other piece of evidence as her evidence by itself is sufficient to convict the
accused as was rightly done by the Trial Court and the Appellate Court.
15.
This is apart from the fact that the recovery memo Ex.P-11, P-12,
P-13 and P-14 through which blood stained spear, blood stained lathi, blood
stained sword were recovered from Bheru Lal, Kailash Chandra, Purushottam and
Gopal as also Ex. 15, the recovery memo of the blood stained clothes which were
recovered from Bherulal as also Ex. C-1, the Forensic Science Laboratory (FSL)
report provide enough corroboration to the evidence of Basanti Bai. We are,
therefore, of the considered opinion that:
"firstly,
it is completely established that the appellants as also the other accused who
has not filed appeal had caused the murder of Shayam Lal and Balkishan;
secondly,
the theory propounded by the defence that it was done in the exercise of right
to private defence is baseless and has been rightly rejected;
thirdly,
that the evidence led on behalf of the prosecution, the eye witness account by
Basanti Bai PW-7 and the other substantial evidence of recovery of the blood
stained articles and clothes is fully established."
16.
Further it is fully established that the accused persons not only
murdered Balkishan and Shayam Lal but also committed the offence under Section
439 read with Section 34, IPC by setting at fire the tractor and household
articles of the complainant.
17.
No other point was urged before us. The appeal has no merits, it
is accordingly dismissed.
18.
At this stage, Shri Manish Singhvi, Learned Counsel for the State
pressed the petition filed by the State against the acquittal of Girraj
(original accused No. 6). We have seen the judgment of the High Court
carefully. We do not find any substantial material against original accused No.
6 Girraj. The High Court has given good reasons for his acquittal. The High
Court has taken a possible view of the matter. It is trite that when a possible
view is taken, then there cannot be an interference in an appeal against
acquittal unless it is shown that the acquittal is unsustainable or perverse.
Such is not the position here. In that view of the matter, we dismiss the
Special Leave Petition (Criminal) No. 169 of 2005 filed by the State.
..............................J. [V.S.SIRPURKAR]
.............................J.
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