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CASE NO.: Appeal (crl.)  508 of 1997

PETITIONER: State of Rajasthan

RESPONDENT: Bhanwar Singh & Others

DATE OF JUDGMENT: 06/05/2004

BENCH: Y.K.SABHARWAL &  B.N.AGRAWAL.

JUDGMENT: J U D G M E N T

WITH  

CRIMINAL APPEAL NO. 578 OF 2004 (@ SLP (Crl.) No. 2247 of 2004) (@ Crl. M.P. No. 219 OF 1995)

Rajesh Solanki & Anr.  \005\005Appellant  

Versus  

Bhanwar Singh & Ors.   \005\005\005.Respondent (s)   

B.N.AGRAWAL, J.  

       Application for permission to file SLP is allowed.  

       Leave granted.  

       Respondents Bhanwar Singh and Dharma Ram along with accused  Vishnu were tried and by judgment rendered by trial court, accused Vishnu was  acquitted of the charges whereas Bhanwar Singh (respondent No. 1) was  convicted under Section 302 of the Penal Code and sentenced to undergo  imprisonment for life.  He was further convicted under Section 27 of the Arms  Act and sentenced to undergo rigorous imprisonment for the period of one year  and to pay a fine of Rs. 200/-, in default to undergo further rigorous  imprisonment for a period of two months.  Dharma Ram  (respondent No. 2)  was convicted under Section 302/109 of the Penal Code and sentenced to  undergo imprisonment for life.  Apart from the sentence awarded against them,  respondent Nos.1 & 2 were directed to pay a sum of Rs. 75,000/- and            Rs. 25,000/- respectively by way of compensation to wife and children of  deceased Arjun Singh.  The gun belonging to accused Bhanwar Singh \026  respondent No. 1 was ordered to be forfeited to the State.  Against the order of  acquittal of accused Vishnu, no appeal was preferred but on appeal being  preferred by the respondents, their convictions have been set aside by the High  Court and they have been acquitted of all the charges.  

       Prosecution case as disclosed in the first information report, in short,  was that in the heart of town of Jodhpur, there was a building known as Sainla  House wherein Rajesh Solanki (PW 1) had taken a shop on rent and was  running a cycle shop therein.  After the induction of PW 1 as tenant in the said  shop, accused Bhanwar Singh purchased the said shop along with another  shop which was adjacent to it and after purchase, PW 1 became tenant of  Bhanwar Singh.  In another shop, Bhanwar Singh was carrying on business in  the name and style of Chamunda Traders.  Roofs of both the aforesaid shops  were in use of PW 1 for which there was a dispute between him and accused  Bhanwar Singh leading to filing of several cases.  On Ist June, 1989 between

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6.30 and 7.30 in the evening, when PW 1 was going on the roof top of the said  shops, he was stopped by Bhanwar Singh and abused.  At that time, accused  Dharma Ram and Vishnu were also present there.  Thereupon, PW 1 went to  his uncle Arjun Singh who was running a provisional store in the same very  building, called him and when he came, he told Bhanwar Singh that the roofs of  the shops were always in the use of PW 1.  Thereupon when PW 1 again  wanted to go to the roof, Bhanwar Singh asked him not to go failing which he  would be shot. Then accused Dharma Ram and Vishnu shouted that PW1  should be shot.  Bhanwar Singh thereafter went to his room, brought his gun  and told Arjun Singh that he would give full right of use of the roofs to PW 1 and  by uttering these words, he fired at Arjun Singh which hit him on the right thigh  as a result of which Arjun Singh fell down.  The occurrence is said to have been  witnessed by Md. Sabir (PW 4), Achal Dass (PW 7), Mst. Ummed Kumari (PW  9) and Mst. Chandrakanta (PW 18) apart from the complainant Rajesh Solanki  (PW 1).   After the occurrence, PW 1 went to the police outpost where he  narrated the occurrence before a constable who telephonically informed the  police control room about the same and asked PW 1 to go to the control room  whereupon PW 1 went to the police control room where he came to know that  the police had already left for the place of occurrence.  Thereupon, PW 1 came  back to the place of occurrence and reported the matter to the police on the  basis of which a case was registered at the police station under Section 307 of  the Penal Code and the injured was shifted to hospital where later on he  succumbed to the injuries, as such case was converted into one under Section  302 of the Penal Code.   

       The police after registering the case took up investigation, during the  course of which, witnesses stated that after the occurrence, PW 1 was chased  by accused Bhanwar Singh and while so chasing, the villagers who had already  assembled there, apprehended and assaulted him by his gun after snatching  the same from him as a result of which butt of the gun was broken.  Upon  completion of investigation, the police submitted charge sheet and on  completion thereof, the learned Magistrate took cognizance and committed the  aforesaid three accused persons to the court of session to face trial.  

       Defence of the accused, in short, was that no occurrence as alleged had  taken place.  The dispute between the parties over user of the roofs of the  shops by PW 1 has been, however, admitted.  PW 1 wanted to make some  construction over the roof which was objected to by accused Bhanwar Singh.   On the date and time of occurrence, PW 1 came along with PW 4 and PW 7 in  the room belonging to accused Bhanwar Singh, beat him and had broken the  wooden bed, table, telephone and glasses of almirah which were kept there.  At  that time, Arjun Singh, uncle of PW 1 came there and took out gun belonging to  accused Bhanwar Singh which was kept in the room and tried to break that gun  on the cemented floor in front of the room in order to save members of the  prosecution party, as a result of which, one live cartridge which was embedded  in the gun went off and hit Arjun Singh.  

       During trial, both the parties adduced oral as well as documentary  evidence and the trial court upon conclusion of trial while acquitting accused  Vishnu, convicted the respondents as stated above and the same having been  reversed by the High Court, two appeals by special leave have been preferred  before this Court, one by the State of Rajasthan and another by the  complainant.  

       Ms. Sandhya Goswami, learned counsel appearing on behalf of the  State of Rajasthan as well as Mr. Rakesh K. Khanna, learned counsel  appearing on behalf of the complainant submitted in support of the appeal that  order of acquittal rendered by the High Court was perverse one as view taken  by it was not possible one, and accordingly, the same calls for interference by  this Court.   On the other hand, Mr. Sushil Kumar, learned Senior Counsel  appearing on behalf of the respondents submitted that view taken by the High  Court was not only possible one but the same was a reasonable view and the  order of acquittal cannot be said to be perverse in any manner.  Alternatively, it  was submitted that even if this Court comes to the conclusion that in the case  on hand, two views were possible, the order of acquittal should not be

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interfered with as it is well settled that if two views are possible, the appellate  court should not interfere with the order of acquittal.   

The question that falls for our consideration is as to whether the  judgment of acquittal rendered by the High Court is perverse one?  In the  present case, five persons, namely, Rajesh Solanki (PW 1), Md. Sabir (PW 4),  Achal Dass (PW 7), Mst. Ummed Kumari (PW 9) and Mst. Chandrakanta (PW  18) are said to be eye witnesses of the occurrence.  Out of these witnesses,   PW 4, PW7 and PW 9 have been declared hostile as they did not support the  prosecution case in material particulars.  PW 18 though claimed to be an eye  witness and has supported the prosecution case but her name was not  mentioned in the first information report and she was examined by the police  after 22 days of the occurrence and no explanation whatsoever has been  furnished by the prosecution for such an inordinate delay in her examination by  the police.   In view of the aforesaid facts, the High Court did not place reliance  on the evidence of PW4, PW7, PW9 and PW 18 and learned counsel  appearing on behalf of the appellants could not point out any infirmity in the  impugned judgment on this count.  They, however, contended that the High  Court should have upheld conviction of the respondents on the basis of sole  testimony of PW 1 who has supported the prosecution case in all material  particulars.  From the impugned judgment, it would appear that the High Court  doubted the prosecution case and refused to place reliance upon the evidence  of PW 1 as it was of the view that defence version may be reasonably possible  and has recorded following reasons for its conclusion :- (a)     According to the evidence of complainant-PW1 after the occurrence, he  went to the police outpost and narrated the occurrence to the constable  Awardan posted there who telephonically informed the control room and  asked the complainant to go to the control room.  The constable could  have been the best person to show as to what was the first version of  the occurrence disclosed by the complainant before him.  But for the  reasons best known to the prosecution, he has been withheld from the  witness box for which no explanation is forthcoming.  (b)     PW 1 stated that when Arjun Singh was taken to the hospital, he was  conscious.  PW 3 admitted that after the occurrence, when wife and  children of Arjun Singh came to the place of occurrence, he was  conscious.  It is not known what was narrated by Arjun Singh about the  present occurrence to his wife and children.  (c)     The prosecution version that after the occurrence, while Bhanwar Singh  was chasing PW1, he was apprehended by the villagers who snatched  gun from him and assaulted him with the same and while doing so, butt  of the gun was broken, was not disclosed in the first information report  although, PW1 admitted that when he came back from the police control  room, he came to know from villagers that Bhanwar Singh was  assaulted by them and the first information report was lodged thereafter  with the police at the place of occurrence itself.  This version of the  prosecution case has seen light of the day after several days of the  occurrence when Saleem (PW 2) and Ramesh Sanwala (PW 5) were  examined by the police and before that there is absolutely no whisper  about the same.   (d)     On the question of snatching of the gun from accused Bhanwar Singh,  PW 2 stated that the gun was snatched by PW 5 but this fact has not  been supported by PW 5 as he candidly stated in his evidence that he  did not snatch the gun from accused Bhanwar Singh.   (e)     Mangoo Singh (PW 22), the investigating officer stated that upon receipt  of information from the outpost, when he went to the place of occurrence  and arrested accused Bhanwar Singh from his room, he produced the  broken gun before him and the same was seized.  If prosecution case of  snatching of gun by the villagers from the accused is true, it is not  understandable how the accused was able to produce the same before  the police.  (f)     Hira Ram (PW 13), a police constable stated that in his presence, room  of accused Bhanwar Singh was searched and he found that wooden bed  and almirah were in a broken condition.  Station House officer \026 Ashok  Kumar Trivedi (PW 15) stated that when he inspected the room of  accused Bhanwar Singh, he found tables, wooden bed and telephone in

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broken condition and glass pieces of almirah were found scattered on  the floor of the room.  Ram Chandra (PW 19) who was Inspector of  Police attached to the police control room stated that when he inspected  room of accused Bhanwar Singh, he found the above articles lying  scattered in a broken condition.  He further stated that he found blood  stains on the floor of the said room belonging to accused Bhanwar Singh  where articles were lying scattered in a damaged condition.  (g)     PW-22, the investigating officer stated that when he inspected the place  of occurrence, PW1 told him that gun was fired by accused Bhanwar  Singh from point ’B’ shown in the site plan and at that time, Arjun Singh  was standing at point ’A’.   According to PW1, distance between Arjun  Singh and Bhanwar Singh was 9’ feet.  According to the evidence of  PW22, distance between point ’A’ and point ’B’ was 25-30 feet.  PW 1  stated that gun was fired by accused Bhanwar Singh by keeping its butt  on his shoulder and it was at 90? angle.  The portion of body of Arjun  Singh which has been hit by this gun fire is mid portion of his right thigh  and according to the evidence of Dr. Jagdish (PW 17), the wound was  8.5 c.m. x 8 cm with multiple punctured wound at the margin of the  wound.   Wound of such dimension was possible only if firing is from a  distance of 3’ to 4’.  (h)     PW 17- the doctor has stated that direction of the wound may be from  downward to upward which could be possible only when the gun went  off accidentally because a cartridge was loaded inside the gun and it  was so loaded that it cannot be taken out and, therefore, when the gun  was hit on the cemented floor in front of the room of Bhanwar Singh for  breaking the gun by holding from barrel side, it went off accidentally. In  the process of breaking the gun, the direction of the wound would also  be from downwards to upwards which supports the case of accidental  firing as disclosed by the defence.  

       Learned counsel appearing on behalf of the appellants placed before us  oral as well as documentary evidence adduced by the prosecution in order to  show that view taken by the High Court was perverse.  Having given our  anxious considerations, we are of the view that the High Court cannot be said  to be unjustified in doubting veracity of the prosecution case as defence version  is probable one and accordingly impugned judgment of acquittal rendered by it  cannot be said to be perverse in any manner so as to be interfered with by this  Court more so when in the present case, it cannot be said that only one view is  possible but here is a case where two views are possible.  It is well settled that  in a case where two views are possible, one of acquittal and the other of  conviction, the higher court should not interfere with the order of acquittal  impugned before it.  This being the position, we are of the opinion that the High  Court has not committed any error in acquitting the respondents of the charges.  

       In the result, both the appeals fail and the same are accordingly  dismissed.