(SUPREME COURT OF INDIA)
Ram Swaroop and others
Vs
State of Rajasthan
HON'BLE JUSTICE N. SANTOSH HEGDE AND HON'BLE JUSTICE B. P. SINGH
15/03/2004
Criminal Appeal No. 870 of 1997
JUDGMENT
The Judgment
was delivered by B.P. SINGH, J.
- In 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.
2. It was 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 against them.
3. On 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. The sentences were directed to run concurrently.
4. The 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 because 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 dead 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. When 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 station.
5. On the basis of the above report a crime was registered under Section
307/148/341/323 IPC but after the death of Bhanwarlal Section 302 IPC was
added.
6. Before 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.
7. Several 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.
8. We shall confine our discussion to the evidence of these witnesses since the
other witnesses are not relevant for the disposal of this appeal.
9. 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. Hiralal 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. No 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 to 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.
10. PW-10, 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 'lahti' 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.
11. PW-8 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. They
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'.
12. According to this witnesses 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 Hiralal 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.
13. The 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.
She 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.
14. At the 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: --
"1. Incised injury 1 x 1/2 x 1/2 inch on the left side of the head at
the parietal region.2. Incised injury 1 x 1/2 inch on the right side of the
head in the oxipetal region.3. One bruised stop of 3 c 1/2 inch on the chest in
the left side. * "
15. According 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.
16. The 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.
17. So far 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. There 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 to 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 become 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 prosecution
itself.
18. 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 had 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. #
19. We are 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 causing 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. #
20. PW-8, Madan 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.
21. While 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." *
22. 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. #
23. We 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. that while he
along with Kishore (PW-10) were sitting in front of the house of Kishore, which
is just near the Shiv Temple, Ramaswaroop 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. Even 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 Madan Lal and his mother." *
24. 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.
# 25. Having 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.
# 26. In the result this appeal is allowed and the appellants are acquitted
of all of the charges levelled against them. They are on bail. The bail bonds
furnished by them are discharged.