PETITIONER: SMT. RUKMA & ORS. Vs. RESPONDENT: JALA & ORS. DATE OF JUDGMENT: 08/08/1997 BENCH: G. N. RAY, G. T. NANAVATI ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
NANAVATI, J.
The widows of the three victims, who were alleged to
have been murdered by respondent Nos. 1 to 8 (Accused 1 to
8), have filed this appeal, by special leave of this Court,
against the judgment and order of acquittal passed by the
High Court of Rajasthan (Jaipur Bench) in B. B. Criminal
Appeal No. 444 of 1987. The State has not thought it fit to
file appeal against the decision of the High Court.
On account of a dispute regarding land there was enmity
between the family of Anna Rawat of Village Masiniya in the
District of Ajmer with the family of Accused N, 1. It was
the prosecution case that because of the enmity Accused Nos.
1 to 8 assaulted Anna Rawat, his bother Kana, his sons
Madhu, Arjun, Mohan and Sua one Punna and Ratna while they
were returning from their fields to the village in the
evening of 11.2.1986. They were assaulted while they were
passing through the Nalla situated near the field of Ganpat
Chita. Vishnu (A-2) and Ratan (A-5) were armed with pharsis,
Sardara (A-7) was armed with an axe and others were armed
with sticks. Ratan (A-5) first give a blow with this
‘pharsi’ on the head of Anna and Vishnu (A-2) gave a blow
with ‘pharsi’ on the waist of Anna. Ratna (A-5) then gave a
blow with ‘pharsi’ on the head of Kana. Sardara (A-7) gave
an axe blow on the hand of Kana Vishnu (A-2) gave a pharsi
blow on the head of Madhu. Thereafter all the accused
started beating other members of Anna’s party. On account of
the injuries caused to them Anna and Kana died on the spot.
Madu died while he was being taken to the hospital. As a
result of the blows given by the accused, Sua (PW-1), Mohan
(PW-2), Arjun (PW-7), Punna (PW-8) and Ratna (PW-9) received
injuries.
In respect of this very incident vishnu (A-2) lodged an
oral report with the police at Kishanganj Police Station at
about 9.00 P.M. In pursuance of that report Hardayal Singh,
who was incharge of that Police Station, went to Village
Masiniya. He recorded the complaint of Sua (PW-1) at about
11.00 P.M. The police first filed a charge sheet against A-1
to A-8 but after making further investigation they filed
another charge sheet against six more persons. All the
fourteen accused were committed to the court of Sessions.
The learned Sessions Judge discharged the accused against
whom charge sheet was filed later as he did not find
sufficient evidence to proceed against them. The learned
Judge proceeded against A-1 to A-8 and convicted them mainly
on the basis of the evidence of Sua (PW-1), Mohan (PW-2),
Arjun (PW-7), Punna (PW-6) and Rutna (PW-9). All the accused
were convicted under Section 302 read with Section 149 IPC
for causing the murders of Anna, Kana and Madhu and also
under Sections 323 and 324, both read with Sections 149 IPC
for causing injuries to the said prosecution witnesses.
Vishnu (A-2), Ratna (A-5) and Sardara (A-7) were also
convicted under Section 148 IPC and the rest were convicted
under Section 147 IPC.
All the eight accused challenged their conviction and
sentence by filing Criminal Appeal No. 444 of 1987 in the
High Court of Rajasthan. The High Court on re-appreciation
of the evidence found that:-
1. the eye witnesses had tried to suppress the genesis of
the incidence;
2. the eye witnesses had falsely implicated before the
police 13 more persons, as disclosed by the fact that
the police did not think it fit to file any charge
sheet against all of them and six accused were
discharged by the Sessions Court;
3. all the eye witnesses denied to have made statements on
28.3.1986 and 4.7.1986 with reference to which they
were contradicted during their cross-examination;
4. all the eye witnesses have made similar improvements
while giving their evidence in the court;
5. the eye witnesses have falsely denied that the accused
had received any injury at their hands;
6. the independent eye witnesses Bholu (PW-4), Sayar (PW-
5), Bhura (PW-6) and Devi Singh (PW-13) did not support
the prosecution but supported the defence version;
7. Balu (PW-3) and Bhoma (PW-10) who are the real brothers
of the deceased Anna and who had also claimed to have
seen the incidence did not support the prosecution.
Moreover, the High Court also sound that the trial
court had committed a grave error of law in relying upon
only some portions of the statements of the accused recorded
under Section 313 Cr. P. C. and ignoring their remaining
version as regards the circumstances under which the
incident had happened and they had caused injuries to the
deceased and the members of this party and some of them had
received injuries a the hands of the deceased and the
injured eye witnesses. The High Court also found on close
scrutiny of the evidence that the defence version was more
probable than the version given by the eye witnesses. It
held that the prosecution has failed to establish that A-1
to A-8 had committed the offences for which they were tried
and convicted by the trial court. It, therefore, allowed the
appeal, set aside the judgment of the trial court and
acquitted them.
Mr. Sushil Kumar Jain, learned counsel for the
appellants, very strenuously urged that the police had not
conducted the investigation fairly and with a view to help
the accused false statements in the names of the eye
witnesses were recorded on 28.3.1986 and 4.7.1986. He
submitted that all the eye witnesses have denied to have
made the statements which they are alleged to have made on
28.3.1986 and 4.7.1986. They were recorded by the police
officers who were not incharge of the investigation of this
case. The eye witnesses were contradicted with reference
case. The eye witnesses were contradicted with reference to
those statements and some of the findings recorded by the
High Court are based upon the said contradictions and the
inference drawn therefrom. He submitted that if they are
ignored from consideration than the findings mentioned above
at serial numbers 2, 3 and 4 will have to be regarded as
unsustainable. He also submitted that the finding that the
eye witnesses had tried to suppress the genesis of the
incidence is not at all correct as the eye witnesses have
clearly deposed about how the incident stated and what was
the cause for the same. He further submitted that as large
number of persons were involved in the incident it was quite
likely that the eye witnesses did not notice what injuries
were caused on the persons of the accused. Anna and kana had
fallen down on the ground after receiving serious injuries
and therefore it is quite probable that attention of the
remaining members of the party was not drawn towards the
injuries received by the accused. Moreover, the injuries
received by Jala (A-1), Vishnu (A-2), Gopy (A-3), Ratan (A-
5), Laxman (A-6) and Sardara (A-7) were only minor and
simple in nature. It was, therefore, submitted that the High
Court committed an error in rejecting the evidence of the
eye witnesses on the ground that they had failed to explain
the injuries on the persons of the accused. He lastly
submitted that the fact that the tow brothers of the
deceased and independent eye witnesses did not support the
prosecution was not at all a good ground for disbelieving
the eye witnesses.
The investigation pursuant to the FIR lodged by Sua
(PW-1) was done by Hardayal Singh (PW-20). He has deposed
about the recording of the statements of the prosecution
witnesses between 11.2.1986 and 18.2.1986. In his evidence
he has further stated that P. D. Sharma, who was then the
Additional Superintendent of Police, had also recorded
statements of some witnesses in connection with this case.
In his cross-examination, he further stated that he did not
know how may police officers had conducted investigation in
this case. It appears that the statements of the witnesses
recorded on 28.3.1986 and 4.7.1986 were not given to the
accused but they came to know about them after the trial
began. Therefore, while the evidence of Sua (PW-1) was being
recorded on 12.1.1987 an application was given on behalf of
the accused for summoning the file which contained those
statements. It further appears that in view of the said
application the Public Prosecutor produced those statements
from the file of another sessions case against one Sohan.
All the eye witnesses were contradicted with reference to
the statements made on 28.3.1986 and 4.7.1986. Whereas some
witnesses had denied to have made any statement on those
others merely denied that they had stated what was recorded
therein. No attempt whatsoever was made by the Public
Prosecutor to show that those statements were recorded by
the police officers, who were not connected with the
investigation of this case or that they were not correctly
recorded. We also find from the record that an advocate
engaged by the complainant’s party was assisting the Public
Prosecutor while the trial was going on. Therefore, in
absence of any material to indicate that the investigation
was not fairly conducted the contentions raised on behalf of
the appellants that the eye witnesses should have been
believed when they stated that they had not made those
statements, cannot be accepted. It is significant to note
that Mohan (PW-2) admitted in his cross-examination that
police had recorded his statements three times. The first
statement was recorded at the site of the occurrence, second
in Village Masiniya and third a the police station. He also
admitted that the statements of Panna, Arjun, Sua and Rukma
were also recorded by the police though he did not state
specifically that their statements were also recorded
thrice. If that part of his evidence is read carefully it
discloses that the statements of those witnesses were also
recorded thrice. In view of these admission it is difficult
to believe the say of the injured eye witnesses, and also
accept the contention of the learned counsel for the
appellants, that they had not given statements either on
28.3.1986 or on 4.7.1986. When Arjun (PW-7) was questioned
regarding the statement dated 28.3.1986 recorded by the
additional Superintendent of Police he merely stated that
the did not remember whether it was recorded or not. for all
these reasons the contention raised by Mr. Jain that two
importance should be given to those contradiction which have
been proved on the basis of the statements recorded on
28.3.1986 and 4.7.1986, cannot be accepted and no fault can
be found with the findings recorded by the High Court that
the eye witnesses Sua, Mohan, Panna, Arjun and Rukam had
tried to implicate some innocent persons also and in order
to make their evidence acceptable by court had made
consistent improvements while giving their evidence in the
court.
The fact that as many as six accused had received
injuries during the incident cannot be disputed in view of
the medical evidence on record. All the injuries received by
Jala (A-1) and Vishnu (A-2) were not minor. Vishnu (A-2) had
received a lacerated wound on his head. They were bleeding
injuries. All the injured eye witnesses who were with
deceased Anna have denied to have caused any injury to any
of the accused. They flatly denied that they had weapons
with them at the time of the incident. If under these
circumstances the High Court thought it fit not to place,
any reliance on Sua, Mohan, Panna, Arjun and Rukam, it
cannot be said that the High Court was not justified in
doing so.
We also find that the accused in their statements
recorded under Section 313 Cr. P. C. have clearly explained
the injuries caused on the three deceased and have further
explained how the other members of Anna’s party received
injuries at their hands. merely because the accused’s party
received less injuries and the party of the deceased
received more serious injuries, as a result of which three
persons died, it cannot be said that they were the
aggressors. It is quite likely as stated by them that they
did was in exercise of their right of private defence. This
is not a case where a large number of injuries were caused
to the deceased or to the injured witnesses. The High Court
was, therefore, right in holding that the defence version
was more probable than the version given by the prosecution
witnesses Sua, Mohan, Punna, Arjun and Rukma.
We see no substance in this appeal. Therefore, this
appeal is dismissed and bail bonds of the accused are
ordered to be cancelled.