http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: ASHA @ ASHANAND & ORS. ETC.

       Vs.

RESPONDENT: THE STATE OF RAJASTHAN

DATE OF JUDGMENT:       08/05/1997

BENCH: M.K. MUKHERJEE, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                   THE 8TH DAY OF MAY, 1997 Present.               Hon’ble Mr.Justice M.K.Mukherjee               Hon’ble Mr.Justice S.p.Kurdukar U.R.Lalit, Sr.Adv.,  K,L.JanJani  and  R.K.Agnihotri,  Advs. with him for the appellant in Crl.A,No. 183-85/90 and 462/95 S.K.Sabharwal, Adv. for the appellant in Crl.A.No,84/91 K.S.Bhati, Adv. for the Respondent                       J U D G M E N T      The following Judgment of the Court was delivered:                             With              Crl.A. 84/91 and Crl.A.No. 462/95                       J U D G M E N T S.P. KURDUKAR, J.      These   Criminal    Appeals   are    filed    by    the appellants/accused challenging  the legality and correctness of the  judgment and order of conviction  and sentence dated 18.8.1989 passed  by the Rajasthan High Court for an offence punishable  under  Section  302,  302/34  IPC.  Since  these appeals arise  out of  a common judgment of the courts below they are being disposed of by this judgment. (2)  The prosecution  story as  unfolded at  the trial is as under:      Cheturam (since  deceased) was  a resident  of Kota and was running  a kerosene  shop in  a log  cabin near  the bus stand. On  6.3.1987 while  he was  sitting in  his shop, his three other  friends, namely,  Suresh Kumar  (P.W.5),  Farid (P.W.7) and  Ashok Kumar  (P.W.9) had  come to  his shop and they were  talking with each other Suddeenly Ashanand (A-1), Mohan Singh  (A-2) and  Cheetar Singh  (A-3) came on a motor cycle which  was driven by A-1. They stopped the motor cycle near the  log cabin  Cheturam. A-1  who had  a  plastic  mug containing acid  threw it  on Cheturam  who  sustained  burn injuries and  fell down.  A-2 and  A-3 thereafter  assaulted Cheturam with  the knives.  A-1 also assaulted Cheturam with the  knife.  Because  of  this  murderous  assault  Cheturam sustained  the   acid  and   bleeding  injuries  and  became unconscious. All  the three  accused then  fled away.  Farid (P.W.7) and  Ashok Kumar  (P.W.9) hired an auto rickshaw and carried Cheturam  to  M.B.S.  Government  ’Hospital,  ,Kota.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

Medical. officer on duty declared Cheturam dead. Ashok Kumar (P.W.9) then  proceeded to the police station, Gumanpura and submitted the written  report Ex.P-16 at 6.30 p.m. about the incident. The   FIR  Ex.P-17 came  to be  registered and the Station House  Officer, Samarath Singh (P.W.11) deputed some constables to the place of incident. He himself reached  the place of  occurrence at about 8.00 p.m. Since it was dark he did not carry out further investigation during the night. He then went  to the  hospital and  verified about the death of Cheturam. On  7th March,  1987 he  proceeded to the place of occurrence and  carried out  further  investigation.  During investigation A-1 was  arrested on 8.3.1987, whereas A-2 was arrested on  14.3.87 and A-3 came to be arrested on 17.6.87. Dr. Manmohan Singh (P.W.2) held the autopsy on the dead body and noticed  as many as 9 incised and acid born injuries  on the  deady   body  of   Cheturam.   After   completing   the Investigation all  the three  accused were  put up for trial for the  offence of committing murder of Cheturam punishable under Section 302/34 IPC. (3)  All the  three accused  denied the allegations levelled against them  and claimed  to be  tried. According  to  them Cheturam might  have been  assaulted by  some terrorists but they have  been falsely implicated in the present crime. A-1 and A-S  in their  statements  recorded  under  Section  313 Cr.P.C. had  stated that  the acid injuries on their persons were caused  due to  the accidental  fall of a battery which they  were   trying  to  take  out  from  the  jeep  bearing Registration No.RJF 3031. All the three accused pleaded that they are innocent and they be acquitted. (4)  The prosecution  in support  of its  case  examined  11 witnesses of  whom Suresh  Kumar (P.W.S),  Farid (P.W.7) and Ashok Kumar  (P.W.9) are  the eye  witnesses.  Dr.  Manmohan Sharma (P.W.2)  was examined to prove the injuries caused on the dead  body of  Cheturam and  the cause  of his death. It also relied upon the reports Exs. P-29 and P-30 given by the Legal Science  Laboratory, Jaipur.  In addition to the above evidence the prosecution also produced on record the various panchnamas  including   seizure  panchnamas  in  respect  of incriminating articles recovered at the instance of A-1  and A-2. The  accused in support of their defence  examined some witnesses. (5)  The Learned  Sessions Judge,  Kota on appraisal of oral and documentary evidence on record by his Judgment and order dated 9.2.1989  convicted A-1  under  Section  302  IPC  and awarded the  capital punishment  and a fine of Rs.100/-. A-2 and A-3  came to  be convicted  under Section 302/34 IPC and each one  of them  was sentenced  to suffer  imprisonment of life and  to pay  a fine  of Rs.100/-  in default of fine to undergo further  for one  month. The Learned Sessions Judge, accordingly made  a reference  under Section  366 Cr.P.C. to the High  Court. In  the meantime  the three  accused  filed their separate appeals impunging the order of conviction and sentence. All  these appeals  and the  reference were  heard together by  the Division Bench of the Rajasthan High Court. The High  Court by  its judgment  and order  dated 18.8.1989 upheld the conviction of all the three accused. However, the sentence of  A-1 was  commuted  to  life  imprisonment.  The sentence of  A-2 and  A-3 were  affirmed. It is against this Judgment of the High Court A-1 to A-3 have filed these three appeals by Special Leave to this Court. (6)  The learned  courts below have accepted the evidence of Suresh Kumar  (P.W.5), Farid (P.W.7) and Ashok Kumar (P.W.9) ad credible.  Relying upon the ocular version given by these three witnesses  the courts  below held that A-1 to A-3 came on a motor cycle, stopped the motor cycle near the log cabin

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

of Cheturam;  A-1 and  A-2 threw  the acid  on Cheturam  and thereafter they  assaulted him. The First Information Report that was lodged at the earliest opportunity without any loss of time  disclosed the  names of the accused persons and the role played by them; the evidence of the three eye witnesses stood corroborated  from the  medical evidence that Cheturam had sustained  incised and  acid burn  injuries.  The  under garment of A-1 had the stains of sulphuric acid; A-1 and A-2 had also  sustained minor  acid injuries. All these findings recorded by  the courts  below are  based on appreciation of oral and documentary evidence on record. There is no serious challenge to the finding recorded by the courts below that Cheturam died an unnatural death due to several injuries on  his person.. It is, therefore, not necessary to deal  with   medical  evidence   which  did  prove  that  he (Cheturam) met with a homicidal death. We accordingly hold so. (7)  It was  contended on  behalf of the appellants that the courts below  ought to  have rejected  the evidence of three eye witnesses  being unreliable, firstly, on the ground that they were  residing at far of places in different localities and there was no reason for them to come to the log cabin of Cheturam.  Secondly, they were all close friends of Cheturam and, therefore, interested witnesses. It is, therefore,  not safe to  convict the  accused persons  on such untrustworthy evidence. We find no substance in these contentions. We have gone through  the  evidence  of  these  eye  witnesses  very carefully and  we find  that except giving a suggestion that they could  not have been present at the time of incident no further material   could  be brought  out during  the cross- examination. In our considered opinion the evidence of these witnesses cannot be disbelieved on these grounds. (8)  It was  then contended on behalf of the appellants that Suresh Kumar  (P.W.S), Farid (P.W.7) and Ashok Kumar (P.W.9) were not  knowing the  names of  any of  the accused persons and, therefore,  the prosecution  ought to  have  held  T.I. Parade  to  lend  credence  to  their  evidence  as  regards identification. It is true that no T.I. Parade was held. The evidence of  Suresh Kumar (P.W.S) is that he was knowing all the three  accused persons since before the incident and the names were  disclosed by  him to  other eye  witness.  Ashok Kumar (P.W.9) who lodged the First Information Report has mentioned the  names of  all the  three accused  persons  as assailants and with all necessary details testified that it was  Farid (P.W.7)  who told him the names. However Farid had stated  that he came to know the names of these  accused persons from  Suresh Kumar  (P.W.5). If this chain is viewed in proper  perspective   it leaves  no  manner of doubt that the names  of the assailants of Cheturam were told by Suresh Kumar (P.W.5)  to Ashok  Kumar (P.W.9)  who lodged the first Information Report.  The incident  in  question  took  place during day  time at  5.00 p.m.  and, therefore, there was no question of  erroneous identity. What is relevant to mention is that  the first  Information Report  came to be lodged on the very same evening at about 6.30 p.m. There was hardly any time to concoct a false story. (9)  It was  the urged  on behalf of the appellants flat the evidence of Ashok Kumar is inconsistent with the recitals in the FIR  inasmuch as  there are  various  material  inter-se contradictions in  the evidence of these three eye witnesses relating to  the details  of assault  and the part played by them. There  are some  minor inter-se  contradictions in the evidence of these Three eye witnesses but in our opinion the same are  of too  trivial in  nature and,    therefore,  the courts below rightly ignored such minor contradictions.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

(10) It was  then contended on behalf of the appellants that the evidence  of Farid  (P.W.7) and  Ashok Kumar  (P.W.9) be discarded in  view of  their affidavits  sworn on  23.6.1987 wherein they  denied any  knowledge about the incident. This submission needs to be stated and rejected because this only shows   an attempt  on the  part of  the accused persons who tried to  win over  the witnesses.  It was  then urged  that Farid   (P.W.7) and   Ashok  Kumar (P.W.9)  are of  doubtful character and,  therefore, their  evidence be  not accepted. This submission  again has  no substance  and has  got to be rejected. Learned  counsel appearing  for A-2 while adopting the arguments  urged on  behalf of  A-1, in addition thereto contended that  none of the eye witnesses had attributed any specific role  to A-2  and in  view thereof  he needs  to be given the benefit of doubt.  This submission again is devoid of any merit because of  the fact that all the three accused came together  on a  motor cycle and after getting down near the log  cabin of  Cheturam, A-1  and A-f threw the acid and then assaulted  him and  thereafter fled  away on  the  same motor  cycle.   This  unimpeachable   evidence   cannot   be overlooked  and   in  our  opinion  the  courts  below  have committed no  error in  convicting  all  the  three  accused persons. (11) The most  crucial circumstance  against A-1 and  A-2 is that they had sustained acid burn injuries on their persons. Ashanand was arrested on 8.3.1987 and was medically examined on 9.3.1987.  Dr. C.M. Srivastava who examined him issued an injury report  Ex.9 stating  therein that  A-1 had acid burn injuries which  were four days old. This date coincided with the date of incident. A-2 was arrested on 14.3.1987 and was medically examined  on 15.3.1987.  Dr. C.M. Srivastava found burn injuries  on his person which were seven days  old. The Medical report  is at  Ex.10. There  is another  Independent circumstance against  A-1. The  underwear     art.6  of  A-1 seized during  the course  of investigation at his instance, was found  to have  stains of  sulphuric acid as per reports Ex.P-30  of  the  Jaipur  Legal  Science  Laboratory.    The explanations given  by A-1  and A-2 and the defence evidence in support  thereof is  totally  unreliable  and  a  belated attempt in  that behalf.  That  courts  below  have  rightly disbelieved the  defence evidence  and the explanation given by A-1 and A-2 in their statement recorded under Section 313 Cr.P.C. (12) After going through the evidence and other materials on record we are satisfied that the impugned judgment and order of conviction and sentence passed by the High Court does not suffer from  any infirmity.  There is no substance in any of these appeals. (13) for the  conclusions recorded  hereinabove,  all  these appeals to  stand dismissed.  The appellants who are on bail shall surrender  to their  bailbonds forthwith  to serve out their sentences.