http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

CASE NO.: Appeal (crl.)  870 of 1997

PETITIONER: Ram Swaroop and others                                

RESPONDENT: State of Rajasthan                                             

DATE OF JUDGMENT: 15/03/2004

BENCH: N. Santosh Hegde & B.P. Singh  

JUDGMENT: JUDGMENT

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.

       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.

       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.  

       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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

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 became 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 head 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.

       On the basis of the above report a crime was registered  under Sections 307/148/341/323 IPC but after the death of  Bhanwarlal Section 302 IPC was added.

       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.   

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.           We shall confine our discussion to the evidence of these  witnesses since the other witnesses are not relevant for the  disposal of this appeal.

       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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

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 or 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.                        

       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 ’lathi’ 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.

       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’

       According to this witness 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  Hirallal 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

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.   

       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.   

       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 = x = inch on the left side  of the head at the parietal region.

2.      Incised injury 1 x = inch on the right  side  of the head in the oxipetal region.

3.      One bruised stop of 3 c = inch on the chest    in the left side."

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.   

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

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.       

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 the 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 \026 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 became 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

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.   

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 has 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.  

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 caused 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.   

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

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.

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."

       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.    

       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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

just near the Shiv Temple, Ramswaroop 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 Mdan Lal and  his mother."  

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.

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.

In the result this appeal is allowed and the appellants are  acquitted of all the charges levelled against them.  They are on  bail.  The bail bonds furnished by them are discharged.