CASE NO.: Appeal (crl.) 431 of 1991 PETITIONER: STATE OF RAJASTHAN RESPONDENT: TEJA RAM AND ORS. DATE OF JUDGMENT: 19/03/1999 BENCH: K.T. THOMAS & D,P . MOHAPATRA JUDGMENT:
JUDGMENT
1999 (2) SCR 29
The Judgment of the Court was delivered by
THOMAS, J. It was by a midnight blitz that two sleeping inmates of a
dwelling house were axed to death by armed assailants. One of the victims
was the old mother of the other victim, The younger among them was not the
target of the assailants but he was mistaken for his brother. In the
Sessions court seven persons were put on trial as the assailants in the
aforesaid double murder episode. Out of them six were convicted under
Section 302 read with Section 149 of the Indian Penal Code and for certain
other lesser but allied offences. They were sentenced to imprisonment for
life for the principal offence and for lesser terms for the lesser
offences. When they appealed a Division Bench of the High Court of
Rajasthan set aside the conviction and sentence and acquitted them all.
State of Rajasthan has, therefore; come up in appeal to this Court by
special leave. As there were seven accused in the case, out of Which six
are the respondents now, they can be referred to as accused in the same
rank as they were arrayed in the trial court so that possible mistake in
identify ing them can be prevented, AI Teja Ram, A 2 Ram Lai and A 3
Bhanwar Lai are the sons of one Maga Rani and they are cousins of deceased
Ram Lai. Other accused are close relatives of those two accused. The
backdrop of the case unfurls a story of continued hostility which existed
as between the cousins on account of disputes over landed properties. PW15
Mota Ram (son of deceased Amf: Gamni) had launched litigation against Al
and A 2. On a motion made by him the authorities concerned have initiated
proceedings under Section 107 of the Code of Criminal Procedure against A1
Teja Ram and A 2 Ram Lai. Thus, they looked upon each other with
bitterness.
The incident happened on the night next morning of which was a Sunday
(13.9.1981). Prosecution case is that all the seven accused, armed with axe
arid lathis etc, travelled in a tractor and at a subsequent stage they
walked on foot and reached the house of the deceased by midnight.
Deceased Ram Lai and his mother Gamni were sleeping inside the room
adjoining the gate of their house. Mota Ram used to sleep at that place but
on the fateful night Ram Lai thought it convenient to sleep there as that
was the cruel game of his fate. The assailants entered into the room and
hacked both the deceased with axe. The squall of the victims rumbled the
neighbourhood. All those who heard it rushed to the scene but by the time
they reached the assailants took to their heels and escaped from the place.
Other inmates of the house carried the injured in a vehicle to the hospital
and on the way Mota Ram (PW15) informed the police about the incident at
the Police Out Post at Auwa. From there he proceeded to Kharchi police
station and lodged the FIR, The SHO (PW21) recorded the statement of both
the injured who were removed to the hospital thereafter. Ram Lai died on
the same night, while his mother lived for a week more fighting With death
and she too succumbed to the injuries on 21.9.198-1.
Trial court, while convicting six accused, mainly relied on Ex. P 31 and
Ex. P 32 which are the two dying declarations attributed to deceased Ram
Lai and Gamni respectively which were recorded by PW21, the Investigating
Officer. Besides the above, the trial court relied on certain
circumstances, such as the testimony of witnesses who reached the scene saw
the accused running away with axes and lathis, and recovery of the weapons
effected pursuant to the informations elicited from the accused. But the
Division Bench of the High Court of Rajasthan declined to act on the two
dying declarations. High Court was not persuaded to place any reliance on
the witnesses who claimed to have seen the assailants running away. High
Court put-forth two reasons for adopting that course. First is that
prosecution failed to examine any independent witness even though such
persons were residing in the neighbour-hood, and the Witnesses examined by
the prosecution for .that point are close relatives of the deceased. Second
is that there are discrepancies between their versions and such
discrepancies are of a substantial nature. The High Court declined to act
on the evidence relating to the recovery of axes for the main reason that
since human blood could be detected only on one of them while origin of the
blood on the other was not established, there was room for entertaining
doubt as to the real person whose blow with the axe would have caused the
injury.
In the final end the Division Bench, after voicing a lamenting chord that
“it is Unfortunate that two cold blooded murders are going unpunished in
this case,” expressed its view that it Is unsafe to maintain the
conviction. Hence, the High Court set aside the conviction and sentence
passed on the respondents.
Though on the defence side a number of witnesses, were examined neither the
trial court nor the appellate court placed any reliance on any of them. Nor
did the respondents make any endeavour to convince us that those witnesses
are of any use for the defence.
Mr. Aruneshwar Gupta, learned counsel for the State of Rajasfhan contended
that the approach made by the High Court is wholly untenable in discarding
the best evidence on the strength of some trivial reasons. Mr. Doongar
Singh; advocate for the accused argued in extenso supporting the reasoning
of the High Court and strongly pleading for maintain ing the acquittal
We are in agreement with the argument of Shri Doongar Singh that the High
Court was justified in not acting on the two dying declarations. The
injuries found on the body of Ram Lai as noted by PW9 Dr. Narid Kishore
Sharma are the following :
(i) Vertical incised wound with oozing of blood of 8.5 x 1,5 cms x brain
deep on the right forehead region to frontal region from eye brows to
upward lacerated brain tissues coming out from the wound. Injury was
grievous and was caused by sharp object.
(ii) Hematoma of both the Eyelids of right eye.
(iii) Haematoma of left upper eye lid.
The same doctor noticed the following injury on the body of Smt. Gamni:
“Vertical incised wound with blood oozing with 8.5 x 3.0 x brain deep on
the left temporal region 3 cm above the ear pinna. Brain tissue was lying
out of the wound,”
Even if the injured was able to mutter something or even speak out
something after sustaining the above injuries it is extremely unsafe to
place any credence on such statements as the brain functions of the injured
would have impaired due to the brain injury.
But we find it difficult to side-step the remaining circumstances as
lightly as Division Bench of the High Court has down-staged them. The first
among the circumstances is the strong motive for AI Teja Ram and A 2 Ram
Lai because the family of Mota Ram had moved the authorities to initiate
proceedings against them under Section 107 of the Code of Criminal
Procedure, This shows the acuteriess of hostility which prevailed as
between the two warring factions. That aspect remains undisputed, though
the defence contention is that they were falsely implicated on account of
that enmity. Of course that possibility has to be eschewed before counting
the enmity aspect as a circumstance against the accused. For that endeavour
the Court has to look at other circumstances presented by the prosecution
against the accused.
PW 13 (Idan), father of Mota Ram was sleeping inside his house during the
night. Mota Ram was also sleeping in the same room. Gariini and her other
son Ram Lal were sleeping inside the room which adjoins the gate. PWl 3
said in his evidence that on hearing the sound of a cry he woke up and
rushed to the place wherefrom the cry emanated and there he saw all the
accused, among whom he noticed A1 Teja Ram and A2 Ram Lai holding Kulhadi
(axe). They were seen running away from, the :scene,
PW18 (Roopa Ram) who is brother of PW13(ldan) who was sleeping in his house
situated in the neighbour-hood and his son Chhoga Lai (PW4.) who was
sleeping inside the cabin of a truck (Which was parked in front of the
house Of the deceased) also heard the sound of cry and they too rushed up
to the scene and saw all the accused scampering away from the. place and Al
and A2 had axes with them and others have lathis.
PW1.0 (Oghada Ram) is another brother of PW 13 (Idan) and he toowas
residing close by. He also said that by midnight he heard the sound of a
loud cry from the house of his brother. PWI3-Idan and he also rushed to the
place and saw the accused, among them Al (Teja Ram) and A2 (Ram Lai) were
in possession of axes.
The fact that the above witnesses were residing in the immediate
neighbourhood was not disputed either in the trial court or at the
appellate stage. When the incident of this nature occurs the persons who
would normally run to the place of occurrence are those living in the
neighbour-hood, But the High Court did not act on the testimony of those
persons who reached at the scene immediately on a very fragile reasoning.
High Court pointed out a discrepancy in the evidence as between two sets of
witnesses, PW4 Chhogalal and PW15 Mota Ram said that the assailants were
seen going out from the western gate of the house while PW10 Oghada Ram and
PW18 Roopa Ram said that the assailants went out through the eastern gate.
This according to the High Court is a very substantial contradiction
between them.
There is little justification for blowing up such a motely discrepancy to
the size of a mountain and then to reject the whole evidence by depicting
it as a material discrepancy. What the High Court over-looked in the above
exercise was the core of the evidence and consideration of. it on broad
probabilities. We have to bear in mind the time when the occurrence took
place-the wee hours of the night, the sleeping locality was woken up by the
yelling voice crying for help from one’s own keth and kin. When they rushed
to the scene their focus would be on the victims and the identity of the
fleeing assailants. Perhaps some of the assailants would have gone out
through one gate and others through the other gate. After all both gates
were of the same house and are situate close to each other.
We have absolutely no doubt that whoever rushed to the spot on hearing the
squeak or the out cry, it is most unlikely that they would have remained
where they were even after hearing the cries. It is extremely probable that
the witnesses would have seen the fleeing assailants in such a hubbub and
if some witnesses did not correctly notice the exact gate (out of the two
gates) through which each one of the assailants flushed out, it is riot a
good cause for drawing any adverse inference against such witnesses.
Another reason which the High Court advanced to repel the testimony of such
a good number of probable witnesses is that they are all close relatives of
the deceased and that independent witnesses were not examined by the
prosecution. The over-insistence on witnesses having no relation with the
victims often results in criminal justice going away. When any incident
happens in a dwelling house the most natural witnesses would be the inmates
of that house. It is unpragmatic to ignore such natural witnesses and
insist on outsiders who would not have even seen any thing. If the Court
has discerned from the evidence or even from the investigation records that
some other independent person has witnessed any event connecting the
incident in question then there is justification for making adverse
comments against non-examination of such person as prosecution witness.
Otherwise, merely on surmises the Court should not castigate a prosecution
for not examining other persons of the locality as prosecution witnesses.
Prosecution can be expected to examine only those who have witnessed the
events and not those who have not seen it though the neighbour-hood may be
repleted with other residents also. One of the circumstances which trial
court relied on as incriminating the accused is the recovery of two axes
(Kulhadi) on the strength of statements of AI Teja Ram and A2. Ram Lai.
They were subjected to chemical examination and the result is that both
axes were found stained with blood. When it was further subjected to test
by Serolegist the blood on one axe was found to be of human origin, while
the blood stain on the other axe was found to have so disintegrated that
its origin became undetectable. Ex. PlO is the report of the Serologist.
Axes hidden beneath the rags were disinterred with the help of information
elicited from the accused. According to PW21 (the Investigation Officer) Al
Teja Ram told him “I have concealed the axe under some rags and kept it at
the left comer of the hut in my farm at Dhokwa.” The axe recovered pursuant
thereto on 2Q.9.:198i as per Ex. Pi4 seizure memo was marked as Article
No.8. Similarly, PW 42 Ram Lai has told the Investigation Officer that “I
have concealed the axe under some rags and placed it on a slab in the store
of my house”. On the said information another axe was recovered on
23;9.1981 as per Ex, P3 Seizure Memo. That axe has been marked as Article
1.
The facts discovered from the aforementioiied statements and recovery of
axes are that those weapons were concealed by the said two accused.
Normally, the above circumstance should have been given weighty
consideration iii the evaluation of circumstantial evidence. But the High
Court down staged it on a reasoning which is difficult to sustain. This is
what the High Court has observed regarding the evidence relating to the
recovery of the two axes (Kulhadi) “The evidence of the blood stained
Kulhadi is not sufficient as the prosecution has not been able to prove
that Kulhadi which was stained with human blood was recovered from whom.
Thus it is not clear whether the recovered Kulhadi was of Teja Ram or of
Ramlal. The other infirmity in the Chemical Examiner’ Report is that it
does not mention the extent of blood seen on the Kulhadi. It has not been
established clearly as to which particular accused, the incriminating axe
belonged. As such, it can not be used against any one of these’ two
accused.”
Failure of the Serologist to detect the origin of the blood, due to
disintegration of the serum in the meanwhile, does not mean that the blood
stuck on the axe would not have been human blood at all. Sometimes it
happens, either because the stain is too insufficient or due to
hematological changes and piasmatic coagulation that a Serologist might
fail to detect the origin of the blood. Will it then mean that the blood
would be of some other origin? Such a guess work that blood on the other
axe would have been animal blood is unrealistic and far fetched in the
broad spectrum of this ease. The effort of the criminal court should not be
to prowl for imaginative doubts. Unless the doubt is of a reasonable
dimension which a judicially conscientious mind entertains with some
objectivity no benefit can be claimed by the accused.
Learned counsel for the accused made an effort to sustain the rejection of
the above said evidence for which he cited the decisions in Prabhu Babaji
v. State of Bombay, AIR (1956) SC. 51 and Raghav Prapdnna Tripathi \. State
of UP, AIR (1963) SC 74. In the former Vivian Bose J. has observed that the
Chemical Examiner’s duty is to indicate the number of blood stains found by
him on each exhibit and the extent of each stain unless they are too minute
or too numerous to be described in detail. It was a case in which one
circumstance projected by the prosecution was just one spot of blood on a
dhoti. Their Lordships felt that “blood could equally have spurted on the
-dhoti of a wholly innocent person passing through in the circumstances
described by us earlier in the judgment.” In the latter decision this Court
observed regarding the certificate of a chemical examiner that inasmuch as
the; blood stain is not proved to be of human origin the circumstance has
no evidentiary value. “In the circumstances” connecting the accused with
the murder. The further part of the circumstance in that case showed that a
shirt was seized from a dry cleaning establishment and the proprietor of
the said establishment had testified that when the shirt was given to him
for dry cleaning it was not blood stained.
We are unable to find out from the aforesaid decisions any legal ratio that
in all cases where there was failure of detecting the origin of the. blood
the circumstance arising from recovery of the weapon would stand relegated
to disutility. The observations in the aforesaid cases were made on the
fact situation existed therein. They cannot be imported to a case where the
facts are materially different.
Learned counsel, in this context invited our attention to one step which
PW2I (Investigation Officer) had adopted while preparing the seizure memos
EXiP 3 and Ex.P 4. He obtained the signature of the accused concerned in
both the seizure rnernos: According to the learned counsel the aforesaid
action of the Investigating Officer was illegal and it has vitiated the
seizure. He invited our attention to section 162(1) of the Code which
prohibits collecting of signature of the person whose statement was reduced
to writing during interrogation. The material words in the sub-section are
these :
“No statement made by any person to a police officer in the cause of
investigation under the chapter, shall, if reduced to writing, be signed by
the person making it ;…,.”
No doubt the aforesaid prohibition is in premptory terms. It is more a
direction to the investigating officer than to the court because the policy
underlying the rule is to keep witnesses free to testify in court
unhampered by anything which me police claim to have elicited from them.
(Tahsildar Singh v. State of UP, AIR (1959) SC 1012 and Razik Ramv.JS
Chouhan,MR (1975)SC 667. But if any Investigating Officer, ignorant of the
said provision, secures the signature of the person concerned in the
statement, it does not mean that the witnesses’ testimony in the court
would thereby become contaminated or vitiated. The Court will only reassure
the witness that he is not bound by such statement albeit his signature
finding a place thereon.
That apart, the prohibition contained in sub-Section (1) of Section 162 is
not applicable to any proceedings made as per Section 27 of the Evidence
Act. It is clearly provided in sub-Section (2) of Section 162 Which reads
thus:
“Nothing in this section shall be deemed to apply to any statement falling
within the provisions of clause (1) of Section 32 of the Indian Evidence
Act, 1872, or to affect the provisions of section 27 of that Act.” The
resultant position is that the Investigating Officer is not obliged to
obtain the signature of an accused in any statement attributed to him while
preparing seizure memo for the recovery of any article covered by Section
27 of the Evidence Act. But; if any signature has been obtained by an
investigating officer, there is nothing wrong or illegal about it. Hence,
we :cannot find any force in the contention of the learned Counsel for the
accused that the signatures of the accused in Ex.P 3 and P 4 seizure memo
would vitiate the evidence regarding recovery of the axes.
Learned counsel for the respondent pointed out the evidence of Head
Constable Jagaii Nath (PW 8) who was in-charge of the police outpost at
Auwa. The witness said, initially in his evidence, that PW15 (Mota Ram who
reached the outpost soon after the incident) who reported about the
incident could not mention the names of the assailants as he said that he
did not know about the assailants. Learned counsel, laying emphasis on the
aforesaid evidence contended that it knocks the bottom off the prosecution
case. Shri Aruneshwar Gupta, learned counsel for the State invited our
attention to a farther portion of PWS’s evidence where the witness was
permitted to be cross-examined by the Public Prosecutor during which PW8
admitted having told the Investigation Officer that PW15 had in fact
mentioned the names of the accused as the assailants.
One of the permitted modes of impeaching the credit of a witness is proof
of former statements which is inconsistent with any part of his testimony,
as indicated in Section 155(3) of the Evidence Act. But the mode of using
such former statements for the purposes of contradicting the witness is
prescribed in Section 14 of the Evidence Act. It cannot be contended that
the aforesaid former statement was not available for the defence to
confront PW 8 (Mota Ram) since the Head Constable PW15 was examined later.
It was open to the defence to request for recalling the witness for the
purpose of further cross-examination to impeach his veracity on the
strength of the alleged former statement which came on record subsequently
(vide Naba Kumar Das v. Rudra Narayan Jana, AIR(1923) PC 95. In this case
PW15 was not asked anything about what he told or not told PWS-Head
Constable. We are unable to appreciate the contention of the learned
counsel on that score: In view of the retracing made by PW15 during later
part of the cross-examination, we are not disposed to give any further
opportunity to the accused to confront PW8 with that material.
We are of the considered view that the High Court has committed serious
error in rejecting very sturdy circumstances as against Al Teja Ram and A2
Ram Lal the cumulative effect of which was the irresistible conclusion that
they were assailants in the double murder wherein deceased Ram Lai and his
mother Gamni were killed.
We, therefore, set aside the order of acquittal in so far as the said two
accused (Teja Ram and Ram Lai) are concerned. We restore the conviction and
sentence passed on them by the trial court. We direct the Sessions Judge,
Pali (Rajasthanj) to take immediate steps to put Al Teja Ram and A2 Ram Lal
back in prison to undergo the remaining portion of the sentence.