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PETITIONER: BHAGWAN DAS

       Vs.

RESPONDENT: THE STATE OF RAJASTHAN

DATE OF JUDGMENT: 02/04/1957

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. BHAGWATI, NATWARLAL H.

CITATION:  1957 AIR  589            1957 SCR  854

ACT:  Appeal    against    acquittal-When    High    Court    may interfere--Dying        declaration--Value         of-Expert evidence--Discrediting     by     reference     to      text books-Practice--Appreciation  of evidence--Inter-ference  by Supreme Court.

HEADNOTE:  The  High  Court should not set aside an  acquittal  unless there are "substantial and compelling" reasons for doing so.   Surajpal Singh v. State, (1952) S.C.R. 193, Ajmer Singh v. The  State of Punjab, (1953) S.C.R. 418, Aher Raja Khima  v. The State of Saurashtra, (1955) 2 S.C.R. 1285, followed. It is not a satisfactory way of disposing of the evidence of an expert witness to discredit it by reference to text books unless  the  passages  which are  sought  to  discredit  his opinion are put to him. Sunderlal v. The State of Madhya Pradesh, A.I.R. (1954) S.C. 28, followed. Although the Supreme Court will not interfere with the find- ings  of  the  High Court because  its  conclusions  on  the evidence as to the guilt or innocence of the accused  differ from that of the High Court, yet where the evidence is  such that  no tribunal could legitimately infer from it that  the accused  is  guilty the Supreme Court would  set  aside  the conviction. Stephen  Seneviratne  v. The King, A.I.R. (1936)  P.C.  289, relied on.

JUDGMENT:    CRIMINAL APPELLATE JURISDICTION:Criminal Appeal No. 50 of 1957. Appeal  by special leave from the judgment and  order  dated January 27, 1956, of the Rajasthan High Court at Jodhpur  in Criminal Appeal No. 119 of 1954 arising out of the  judgment and order dated March 23, 1954, of the Court of the Sessions Judge  at  Ganganagar in Original Criminal Case  No.  74  of 1953. Mohan Behari Lal, for the appellant. Kan Singh and T. M. Sen, for the respondent.

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1957 April 2. The Judgment of the Court was delivered by KAPUR  J.-Bhagwandas and Netram are two brothers  who  along with Mt.  Rameshwari, a daughter 855 of  the  former,  were  tried  by  the  Sessions  Judge   of Ganganagar  for an offence under s. 302 of the Indian  Penal Code  but  were acquitted.  On appeal to the High  Court  of Rajasthan,  the order of acquittal of Bhagwandas and  Netram was  reversed and they were convicted under s.302 read  with s.  34 and sentenced to transportation for life.  The  order as  to Mt.  Rameshwari was affirmed and she  was  acquitted. The convicted persons have obtained Special Leave to  appeal under Art. 136 of the Constitution. he appeal is founded on two grounds: (1)  that  there  was  no evidence  against  the  appellants sufficient  to warrant a conviction and (2) that there  were no  compelling  reasons  for reversal  of  the  judgment  of acquittal.  According  to the prosecution the canal after a  temporary’ closure  restarted flowing on May 5, 1953.  And although  it was  not his turn of water the deceased Shivlal was  allowed to  take  the water to irrigate his fields.  On  May  6  the canal  was flowing to its full capacity and Shivlal  was  to take his turn of water which was of 6 hours duration from  8 a.m. to 2 p.m. but he watered his lands from 8 a.m. to 10-30 a.m. because the village diggi (pond) which was empty had to be  filled up.  Mirab Ram Karan P. W. 1 with the consent  of Shivlal diverted the water for the purpose of filling up the diggi,  promising him (Shivlal) to. get him the rest of  his turn  of  water, i.e., for 3-1/2 hours after the  diggi  had been  filled up.  The diggi was filled up by 1 p.m.  on  the 7th.  Shivlal then wanted to divert the water into his field but Bhagwandas prevented him from doing so claiming the turn to be his.  According to Ram Karan Mirab P. W. I the turn of Bhagwandas  was after Surta whose turn was next to  that  of Shivlal. As  Shivlal was prevented from taking his turn of  water  he started walking towards the village saying that he would  go and speak to Mirab.  Bhagwandas thereupon shouted that " the enemy was going " and hit Shivlal on the head with a kassi. Netram  then hit Shivlal with lathi as a result of which  he fell down and then both beat Shivlal, and 856 Mt. Rameshwari also, it was alleged, joined in this  beating with  a  wooden  handle of a  kassi.   This  occurrence  was witnessed  by Hazari P. W. 3 who was grazing his  camels  in the  field  of  Surta.  He went up to the  place  where  the beating  was  going on and shouted to the assailants  who  " went  away  "  leaving their  kassi  behind.   Hazari  found Shivlal  seriously  injured and unconscious.   He  sprinkled some water on his face which revived Shivlal and the  latter asked Hazari to take him to the Thana but Hazari helped  him to walk up to the Khala (threshing floor) of Hukma which was at  a  short distance from that place.  Hazari P. W.  3  has stated  that  he  left Shivlal with  Jora,  Jagmal,  Bhogar, Begaram and Binja, and on their asking him he (Hazari)  told them   what  he  had  seen.   Shivlal  was  then  taken   to Raisinghnagar  by  Bhaggu and Jagmal on a she-camel  to  the shop of Gyani ham P. W. 4. There Shivlal told Gyani Ram also that  Bhagwandas,  Netram and Rameshwari had  assaulted  him because  of the water’ dispute and also asked Gyani  Ram  to send for his son Ram Pratap and his Artya (Commission Agent) Ishardas.  Ram Pratap came at about 6 p. m. Shivlal repeated the  story  to  him and was then taken to  the  hospital  by Jagmal,  Bhaggu and others.  At the hospital he was  treated

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by the doctor P. W. I I but died the following day (8th)  at 8-15 a. m.   The First Information Report was based on a written report Ex.  P-1 by Ram Pratap s/o Shivlal.  It was recorded on  May 7  at about 7-30 p. m. The prosecution supported their  case by  the  evidence of two eye witnesses,  dying  declarations made  to 3 persons and on the recovery of the  kassi.   They produced two eye witnesses Begaram P. W. 2 and Hazari P.  W. 3.  The dying declarations were made to three persons  first to  Jora P. W. 7, later to Gyaniram P. W. 4 at his shop  and lastly to Ram Pratap P. W. 5 who arrived at the shop at 6 p. m. If the dying declaration was made to this witness it must have been at that time.  According to the doctor’s evidence Shivlal was  unconscious when  he  was brought to the hospital at 5 p. m, He  had  15 injuries on his body, out of which 857 injury No. 1 was with a sharp-edged weapon and injury No.  2 with  a blunt weapon and both these injuries  were  grievous and were " individually and collectively fatal sufficient to cause death." The  learned Sessions Judge disbelieved the  whole  evidence and  acquitted the accused.  He was of the opinion that  the evidence  produced  by the prosecution was not "  free  from suspicion  and not sufficient to convict them ". Begaram  P. W. 2 was disbelieved both by the Sessions Judge and the High Court.   The learned Sessions Judge described Hazari as a  " facile  fluent liar " but his testimony was accepted by  the High  Court.   Both  courts rejected the  statement  of  Ram Pratap but the statements of Gyaniram and Jora were accepted by  the  High  Court  although they  were  rejected  by  the Sessions Judge. The  High  Court has relied upon the testimony  of  one  eye witness Hazari P. W. 3 and two witnesses before whom Shivlal is  alleged to have made two dying declarations.  There  are apparent contradictions between the testimony of Hazari  and Bega.   The  learned High Court Judges disposed of  this  by saying that Bega’s presence "on the spot is open to grave doubts.  As such it is, in our opinion, not proper to contradict the statement of a man who  was  present  on the spot by  using  the  statement  of another man who was in all probability not there." The  learned  Judges  have made  the  following  significant observation in regard to Hazari: "  It  seems  to us that Hazari had said  this  because  the prosecution was producing Bega, and he must have been  asked to  say that Bega was also present.  So far as the story  of Hazari about -the incident itself is concerned, nothing  has been brought out in his cross-examination to throw doubts on this part of his statement." They also pointed out, but attached no importance, to  other contradictions  in the statements of Hazari made before  the trial  court and before the Police.  If as observed  by  the learned  Judges of the High Court, Hazari had mentioned  the presence of Bega merely I 858 because  the  latter  was to be produced  as  a  prosecution witness  and because he (Hazari) had been asked  to  mention it, then it would detract so materially from his reliability that it would be dangerous to accept his testimony as  being of  any  great value which is still more diminished  by  the finding as to the innocence of Mt. Rameshwari.’ The  other  piece of evidence which the  prosecution  relied upon  was  the  two dying declarations made  by  Shivlal  to

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Gyaniram  P. W. 4 and Jora P. W. 7. Besides the  infirmities which the testimony of these two witnesses (Gyaniram P. W. 4 and   Jora   P.  W.  1)  suffered  from  due   to   material contradictions  in  their  respective  statements  made   at various  stages of the case and which have been pointed  out by the learned Sessions Judge who said about Gyaniram: " In such a state of affairs I refuse to put any weight  and value to the statement of Gyaniram.........   ........... .. their evidence cannot be a sure  foundation for  maintaining the  conviction  if  the statement of Hazari  the  sole  eye witness  is disregarded, as it must be disregarded  in  this case;  because  ordinarily a dying declaration of  the  kind which   the  prosecution  has  relied  upon  is  by   itself insufficient  for  sustaining a conviction on  a  charge  of murder. The  learned  Sessions  Judge was of the  opinion  that  the evidence of the doctor P. W. II made the story that  Shivlal could walk for a little distance upto the Khala of Hukma  or was  able  to  talk  so as  to  make  a  dying  declaration, improbable.   But  the  learned Judges  of  the  High  Court disposed  of  this  matter by saying  that  the  doctor  was comparatively young and that his statement was not in accord with the opinion expressed in books on Medical Jurisprudence by  authors like Modi and Lyon.  But it cannot be said  that the  opinions  of  these authors were  given  in  regard  to circumstances  exactly similar to those which arose  in  the case  now  before  us  nor is this  a  satisfactory  way  of disposing of the evidence of an expert unless, the  passages which  are sought to discredit his opinion are put  to  him. This  Court in Sundarlal v. The State of Madhya Pradesh  (1) disapproved of Judges drawing (1)  A.I.R. 1954 S. C. 28 859 conclusions  adverse  to the accused by  relying  upon  such passages  in  the  absence of their  being  put  to  medical witnesses.   The  learned  Judges of the  High  Court  were, therefore,  in  error in accepting the  testimony  of  these witnesses  in  support of the correctness of the  two  dying declarations nor could the statement of the deceased alleged to  have  been  made in the circumstances of  this  case  be considered  sufficient  to  support the  conviction  of  the accused.   The  recovery of the kassi is  a  wholly  neutral circumstance because it has not been proved that it belonged to Bhagwandas. Although this Court will not interfere with the findings  of the High Court because its conclusions on the evidence as to the  guilt or innocence of the accused differ from  that  of the  High  Court,  yet where the evidence is  such  that  no Tribunal  could legitimately infer from it that the  accused is  guilty this court would set aside the  conviction.   The Judicial   Committee  of  the  Privy  Council   in   Stephen Seneviratne  v.  The King (1) in setting aside an  order  of conviction said : ".  ...... there are here no grounds on the evidence,  taken as  a  whole, upon which any Tribunal could properly,  as  a matter of legitimate inference, arrive at a conclusion  that the appellant was guilty.........  In  our  view the evidence in the present case is  of  such quality and no legitimate inference of guilt of the  accused could -properly be drawn. The second point on which the judgment of the High Court  is assailed is the lack of compelling reasons for setting aside the judgment of acquittal.  This  court  has held that the High Court  should  not  set aside  an  acquittal  unless there  are  "  substantial  and

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compelling  "  reasons  for doing  so.   Surajpal  Singh  v. State(1)  Ajmer  Singh v. The State of Punjab (3) Aher  Raja Khima  v. The State of Saurastra (4).  The judgment  of  the High  Court  does not disclose any such  reasons  justifying interference with the findings of the trial Court. (1)  A.I.R. 1936 P.C. 289, 299. (2)  [1952] S.C.R. 193, 201. (3)  [1953] S.C. R. 418, 423, (4)  [1955] 2 S.C.R. 1285. 860 We  would,  therefore,  allow this  appeal,  set  aside  the judgment  of the Rajasthan High Court, restore that  of  the Sessions Judge and order the acquittal of the accused.                         Appeal allowed.