“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.898 OF 2004

Bheru Lal & Ors.           ….  Appellants

Versus

State of Rajasthan      …. Respondent

     WITH

SPECIAL LEAVE PETITION (CRIMINAL) NO. 169 of 2005

State of Rajasthan ……Appellant

  Versus

Girraj ……Respondent

J U D G M E N T

V.S. SIRPURKAR, J.

1. This judgment will dispose of the Criminal Appeal No. 898 of 2004 filed by three  

appellants as also the Special Leave Petition filed by the State of Rajasthan against the acquittal  

of one of the accused who was convicted by the Trial Court but was acquitted by the High Court.  

The three accused persons,  namely, original accused No. 1 Bheru Lal, original accused No.3,  

Kailash Chandra and original accused No. 5, Purushottam have come up before us challenging  

their conviction for various offences including offences under Sections 147, 148, 302 read with  

Section 149, Indian Penal Code (for short “IPC”), 436 read with Section 149, IPC and confirmed

by the High Court.  Originally, as many as seven accused persons were tried for all these offences.  

However, the Sessions Judge convicted in all five accused persons including the present three  

appellants and two others, namely, Girraj, original accused No. 6 and Gopal, original accused  

No.4.  The High Court allowed the appeal of accused Girraj and acquitted him.  It confirmed the  

conviction and sentence of the remaining four accused persons.   In that,  the Court  convicted  

Bheru Lal for the offence under Section 302, IPC simpliciter and for offence under Section 436  

read with Section 34, IPC.  The remaining three accused were also convicted for the offence  

under Section 302 and Section 436 read with Section 34, IPC.   

2. In short, the High Court rejected the offences having been committed by the unlawful  

assembly and set aside their convictions ordered by the Trial Court  which were in the aid of  

Section  149,  IPC and held  that  the  offences  were  committed  in  furtherance  of  the  common  

intention of the accused persons.  Out of the four accused persons so convicted, only three have  

come up before us.  Originally, the appeal seems to have been filed on behalf of all the four  

accused  including  Gopal  but  the  name  of  Gopal  was  thereafter  removed  from  the  array of  

appellants.  We enquired from the Registry as to whether Gopal had filed any appeal but we were  

informed that there was no appeal filed by him.  We are, therefore, left with the appeal filed by  

the three appellants named above.

3. Shortly stated the prosecution case is that one Basanti Bai, PW-7 lodged a report with  

police station Raipur, District Jhalawar on 26.10.1997 at about 4:30 p.m. to the effect that her  

sons, Shayam Lal and Balkishan were belaboured by the seven accused persons.  It was further  

stated that the appellant Bheru Lal and Kailash Chandra had inflicted sword blows on the left and  

right hand and neck of Shayam Lal while appellant Purushottam and Gopal gave sword and spear  

blows,  respectively,  on  the  back  and  head  of  Balkishan.   Thus  all  the  appellants  had  

indiscriminately inflicted injuries on the person of deceased Shayam Lal and Balkishan, while  

appellant Girraj and Bheru Lal crushed their heads with stones.  It was further alleged that after  

this  ghastly  incident,  the  appellants  had  set  at  fire  the  tractor  trolley,  stack  of  onion  and

groundnut.  Offence was registered on these basis and after due investigation as many as seven  

persons  came  to  be  charged  of  offences  under  Section  147,  148,  341,  302,  IPC and  in  the  

alternative Section 302 read with Sections 149, 436, IPC substantively as well as Section 436 read  

with Section 149, IPC as also Section 435 and 435 read with Section 149, IPC and Section 427  

and in the alternative Section 427 read with Section 149, IPC.  As has been stated earlier two of  

the accused persons were acquitted by the Trial Court and now we are left with this appeal at the  

instance of the three accused.  

4. Shri Sushil Kumar Jain, learned counsel appearing for the appellants firstly urged that  

the evidence of the eye witness, namely, PW-7, Basanti Bai and the other eye witnesses, namely,  

Ram Prasad (PW-3), Kanwar Lal (PW-5) and Puri Lal (PW-6) was wrongly relied upon by the  

Trial Court as well as the High Court.  It was pointed out that barring Basanti Bai (PW-7), all  

these witnesses had turned hostile and, therefore, the prosecution was left with the evidence of  

Basanti  Bai  alone.   Learned counsel  urged that  Basanti  Bai  was  the mother of  the deceased  

persons and there was enmity between the accused persons and her family which had emanated  

from the property dispute.  Learned counsel pointed out that both the deceased as well as the  

accused were relatives of each other and there was a property feud amongst the two sides which  

had caused this ghastly incident.    Learned counsel dubbed the evidence of Basanti Bai as being  

untrustworthy and unnatural.  He further pointed out that other witnesses, namely, Ram Prasad  

(PW-3), Kanwar Lal (PW-5) and Puri Lal (PW-6) who were the occupants of the nearby places of  

the incident had refused to support the prosecution as the accused persons had no hand in the  

incident complained of.  It was further suggested that Basanti Bai had claimed to have seen the  

incident from a distance of about 200-250 steps and on that count also she was not in a position to  

see the incident.   However, she had given the graphic description of the role played by each  

accused which makes her evidence suspicious.   

5. Learned counsel also urged that a gun and Katta (country made pistol) were found near  

the body of the deceased which suggested that the deceased Shayam Lal and Balkishan had gone

to  the  place  of  incident  prepared  and  with  intention  to  cause  grievous  hurt  or  death  of  the  

appellant Kailash Chandra.  However, since the gun did not fire (on account of development of  

dampness) they did not succeed in their object and, therefore, the villagers, being angry killed the  

deceased on the place of the incident itself.  It was also pointed out that the appellant Kailash  

Chandra had 11 injuries on the various parts of the body which remained unexplained by the  

prosecution and thus it was obvious that the prosecution had not unfolded its case properly and  

had suppressed the generis of the incident.  Alternatively, the argument proceeds on the basis that  

there was a right of private defence of body as well as the property.  It was also urged by the  

learned counsel that the so-called discoveries of the weapons were farcical and further since the  

blood group of the blood allegedly found on the weapons could not be decided that evidence was  

also of no consequence.  In short, learned counsel urged that the whole prosecution story was  

unbelievable and, therefore, the appellants were entitled to be acquitted.

6. As against  this  the learned counsel  appearing on behalf  of  the  State,  Shri  Manish  

Singhvi, Additional Advocate General for the State of Rajasthan wholly supported the judgments  

and urged that  the prosecution had fully proved its  version and the Courts  below had rightly  

convicted the accused-appellants.  Shri Singhvi also pressed in service the appeal filed on behalf  

of the State of Rajasthan against the acquittal of accused Girraj, and pointed out that the accused  

Girraj could not have been acquitted as he was present throughout and had taken active part in the  

whole affair.  Shri Singhvi severally criticized the High Court judgment in so far as it pertained to  

the acquittal of accused Girraj.

7. Basanti  Bai,  PW-7,  undoubtedly,  was  an  interested  witness  being  mother  of  the  

deceased persons.  Some evidence has come on record that everything was not well between the  

two  families  of  the  deceased  and the  accused.   Her  evidence  was,  therefore,  dubbed  as  the  

“evidence of an interested witness”.  Her evidence was criticized as untrustworthy and unnatural.  

The other witnesses, namely, Ram Prasad (PW-3), Kanwar Lal (PW-5) and Puri Lal (PW-6) have  

not chosen to support the prosecution and they were rightly declared hostile.  We have, therefore,

gone through the evidence of Basanti  Bai very closely.  There can be no dispute that  in  her  

evidence, she has also roped in Girraj (original accused No. 6), Badam Bai (co-accused) and Tara  

Bai (co-accused) and that was an exaggeration on her part.  She claimed to have seen the incident  

from some distance, but has graphically described the role played by accused Bheru Lal, Kailash  

Chandra and Purushottam, the appellants herein.  According to her, Bheru Lal had given a sword  

blow on the neck of Shayam Lal and Kailash Chandra gave a sword blow on the hand of Shayam  

Lal,  while  Gopal  gave  a  blow with  a  sword  on  the  neck  of  Balkishan  and  Purushottam hit  

Balkishan with  Ballam (spear like weapon).  She has not stopped here, but has assigned a role  

specifically to Girraj, Badam Bai and Tara Bai, as also her daughters-in-law, saying that they also  

gave blows with the sticks.  She then described that Bheru Lal pelted stones on them and the other  

accused  persons  also  stoned  them,  as  a  result  of  which  their  heads  were  crushed.   She  has  

thereafter said that even she was followed up to the house and thereafter, the accused persons set  

articles in her house and tractor on fire.  There could hardly be any doubt regarding the presence  

of this witness on the spot.  She candidly admitted that when her sons Balkishan and Shayam Lal  

had left the house, they might have taken gun and a  katta (country made revolver) with them.  

She, however, denied that the said gun and the katta were lying near the bodies of her sons.  She  

naturally refuted the suggestions made to her that her sons had gone armed only to give beating to  

Kailash Chandra and Purushottam.  She also refuted the suggestion that village persons had given  

beating to her sons.  She asserted that she did not see any injury on Kailash Chandra at the place  

of occurrence and no such injury was caused to Kailash Chandra by any sharp edged weapon.   

8. Significantly enough, there is not even an iota of cross-examination in respect of the  

incident and her version about the assault by the accused on her sons and the same has totally  

gone unchallenged.  There can be no dispute about her being an interested witness, as also her  

having exaggerated her version.  There can also be no dispute that she has specifically denied  

there being any injuries on Kailash Chandra, which injuries were ultimately proved.  However,  

that by itself, will not make her evidence unbelievable.  We have taken into consideration that  

here was a mother, who was deposing about the assault on her sons and she certainly would not

be interested in allowing the real culprits to go unpunished.  The task of the Courts is to separate  

the chaff from the grain and that is exactly what has been done by the Trial Court, as well as, the  

Appellate  Court.   About  the  gun  and  the  katta being  found  near  the  body, the  witness  has  

specifically refuted the suggestion that the deceased persons had gone there with an idea to assault  

the accused persons.  We are not much impressed by the argument of the Learned Counsel for the  

appellants  that  this  witness  had  tried  to  mislead  the  Court  on  the  genesis  of  the  case  and,  

therefore, her whole version becomes suspicious.  There is a definite ring of truth.  There can be  

no doubt that the witness has exaggerated, but as has been stated earlier, those exaggerations  

would have to be ignored and have been rightly ignored.  In fact, there were as many as 7 accused  

persons.  Accused Girraj and accused Tara Bai have already been acquitted by the Courts below.  

However, merely because a witness exaggerates or is an interested witness, the evidence cannot  

be thrown, where it is found that there is a ring of truth to the version of the witness.  The Court  

of facts, which appreciates the evidence, should show that they were aware of the fact that the  

witness is an interested witness.  Once that realization comes from the evidence, then there is  

nothing wrong if the evidence of such person is believed.  

9. It was suggested by Shri Jain that Basanti Bai had not admitted or deposed about the  

injury suffered by the accused.  Our attention was invited to the evidence of DW-1, Dr. Chandra  

Kishore Srivastava and DW-2, Kailash Chandra.  Dr. Chandra Kishore Srivastava in his evidence  

has established that he had examined Kailash Chandra and found that he had suffered as many as  

11 injuries.  Kailash Chandra himself also, when he entered the witness box, established his own  

injuries.  There can be no dispute that Kailash Chandra had suffered injuries on that day.  The  

evidence of the doctor shows that he had suffered 10 incised wounds.  Most of the injuries were  

on the left side of the body, one of them on the left hand, one on left wrist, one on left palm and  

one on the scapular region.  The other injuries were on the right upper arm on the lower side.  The  

other injuries include two injuries on the right upper arm on the lower side while one appears to  

be on left frontal part of the head 3 inch above the left eyebrow.  The doctor has certified that all  

these injuries including even the contusion suffered was a simple injury, that is clear from the

report Ex. B-2.  In his cross-examination, the doctor very specifically admitted that none of the  

injury was serious in nature nor was any one of them sufficient to cause death in the ordinary  

course of nature and they were simple.  It is true that Kailash Chandra had also given a report on  

which case No. 190 of 1997 was registered. On the basis of this, the learned counsel pointed out  

that if PW-7 Basanti Bai had not mentioned or denied these injuries in her evidence then it was  

clear that she was lying in the most significant point and thus was trying to hide the genesis of the  

incident  and the  prosecution  story,  therefore,  was  shrouded in  suspicion.   Shri  Jain,  for  this  

proposition, has relied on a number of decisions like State of Rajasthan v. Madho & Anr. [1991  

Suppl.(2)  SCC 396], State  of  Bihar  v.  Mohammad  Khursheed [1971 (3)  SCC 423].  We,  

therefore,  examined  her  evidence  from this  angle  also.   On the  other  hand,  learned  counsel  

appearing on behalf of the State relied on the judgment reported in Jagdish v. State of Rajasthan  

[(1979) 2 SCC 178].  There can be no dispute that this evidence was scanned by the trial Court  

and the Appellate Court which held that the injuries, even if they were established to have been  

suffered by Kailash Chandra, were extremely insignificant injuries and, therefore, those injuries  

did not need any explanation on the part of the prosecution.  The witness undoubtedly states in  

her  cross  examination,  “I  did  not  see  any  injury  to  the  Kailash  Chandra  on  spot.  Kailash   

Chandra  was  not  injured  with  sharp  weapon”.     In  the  judgment  of  Jagdish  v.  State  of  

Rajasthan [(1979) 2 SCC 178] this Court has specifically observed that:

“there is an obligation on the prosecution to explain the injuries so as to satisfy the  

Court as to the circumstances under which the occurrence originated.  Before this  

obligation is placed on the prosecution, two conditions must be satisfied:

(1) that  the  injuries  on the  person  of  the  accused  must  be  very serious  and  

severe and not superficial;

(2) that it must be shown that these injuries must have been caused at the time  

of the occurrence in question.”

10. Thus it  is  very doubtful  as to whether the injuries  had been caused at  the time of

occurrence as such.

11. Shri Sushil Kumar Jain, appearing on behalf of the Learned Counsel for the appellants  

spoke about the right of private defence on the basis of the fact that Balkishan was armed with 12  

Bore  Gun  and  there  was  a  katta being  carried  by  the  other  deceased.   Kailash  Chandra,  

undoubtedly, has suffered some injuries, but all those injuries are simple in nature.  We have seen  

the Injury Report (Exhibit D-2), which suggests that they were very insignificant injuries, which  

were placed not on the vital portions of the body.  We are in agreement with the High Court and  

the Trial Court that the non-explanation of those injuries cannot be advantageous to the defence  

nor can it be said that the prosecution, in not explaining those injuries, had suppressed the genesis  

of the incident.  We have very carefully seen the cross-examination of Basanti Bai, who was not  

even asked about the deceased being armed with any sharp edged weapon, so as to cause injuries  

to Kailash Chandra, who sustained about 10 incised wounds, attributable only to the assault by a  

sharp weapon.  There was no recovery of any sharp edged weapon from the place of incident or  

even from the person of the deceased and even the Investigating Officer was not asked anything  

about any sharp edged weapon being used by the deceased.  The accused persons had shown the  

courage to enter the witness box.  We have seen their evidence carefully.  However, we are of the  

opinion that their evidence does not take us too far nor is their evidence reliable in view of the  

inter se contradictions in the evidence of Kailash Chandra and Bheru Lal regarding the presence  

of Gopal and Girraj.  Nothing has come out in the prosecution case, suggesting that the appellants  

were put under the situation, where they could reasonably had apprehended any grievous hurt to  

even one of them.  On the other hand, the defence came out with a fantastic theory that the  

deceased persons were killed by the villagers.

12. The law is now well settled that where there is a failure on the part of the prosecution  

witness to explain injuries on the accused caused in the same incident, implicit reliance cannot be  

placed on the prosecution which suppressed part of the incident.  The two rulings cited by Shri  

Jain  do support  this  proposition.   The question  is,  however,  whether  the injuries  suffered by

Kailash Chandra were actually caused during the incident and they were substantial enough so as  

to attract the attention of the witness and whether the witness had any opportunity to see the  

injuries as such.  When Kailash Chandra stepped into the witness box, he deposed that deceased  

Shayam Lal had a spear in his hand and a loaded Katta in his pocket.  He further evidenced that  

Balkishan and Shayam Lal abused his sister and mother and pointed out the gun at them and when  

Balkishan’s gun failed to fire, he attacked with sword on his right hand at several places.  He  

further asserted that had he not taken sword in his hand, he would have died.  In his examination-

in-chief also he had suggested that Balkishan had a sword besides a 12 bore loaded gun.  In his  

cross examination, he claimed complete ignorance as to what had happened with Balkishan and  

Shayam Lal.  He also went to the extent of suggesting that he did not know as to how they died.  

The evidence of this witness has been disbelieved totally by both the Courts below.  It is very  

significant to see that the evidence of DW-2 Bherulal also is to the same effect that Balkishan was  

beating Kailash Chandra with the sword and he also had a gun with him.  Bherulal was at least  

candid enough to admit that Shayam Lal and Balkishan had died in the same incident, however,  

both these witnesses brought about a fantastic theory that villagers had attacked Balkishan and  

Shayam Lal and they were killed in the same incident.  What is most significant is that Kailash  

Chandra and Bherulal, after the incident, chose to go to Sunair after five hours of the incident and  

did not go to Raipur police station under which jurisdiction all this had taken place.  It is after  

reaching Sunair that Kailash Chandra chose to go to the hospital at Sunair.   All this has been  

considered by the Trial Court as also the Appellate Court and both the Courts have come to the  

conclusion that both these witnesses were unreliable witnesses. There can be no doubt that they  

claimed to  have been injured in  the  same incident  but  that  by itself  would  not  be sufficient  

because there does not appear to be any sword seized by the police on the spot.  If Balkishan and  

Shayam Lal had carried a sword for injuring this witness and if both of them died on the spot,  

surely the sword could not have disappeared.   

13. Therefore, both the Courts were right in disbelieving the story put forth by these two  

accused-witnesses.  However, the question still remains that there were injuries which have been

seen by the doctor much after the incident.  As per the evidence, the report was made in the police  

station Sunair which was about 15 KM from the village Himmatgarh.  There can be no dispute  

about the proposition that the injuries on the person of the accused must be explained.  However,  

considering the overall evidence of the two defence witnesses, it is extremely doubtful whether  

the injuries were caused during the incident.  This is apart from the fact that Basanti Bai who had  

seen the incident from a distance could not have been in a position to even notice any injury on  

the body of Kailash Chandra.  She had afterall seen her two sons being assaulted mercilessly and  

being dealt with by the accused.  She, therefore, asserted that she did not see any injury at that  

time on the person of Kailash Chandra.   

14. In order to reap the benefit of the proposition laid down by this Court, there must be an  

opportunity to the witness to watch and there must be deliberate refusal on the part of the witness  

to explain the injuries if the witness is not in a position to note the injuries or if the Court comes  

to the conclusion that it was not possible for the witness to see any injuries or that the injuries  

were not actually caused during the incident itself then the defence will not be able to reap any  

benefit.  We are, therefore, of the opinion that Basanti Bai’s evidence cannot be rejected on this  

point and that the Trial and the Appellate Courts  are right in relying on her evidence.  Once  

Basanti Bai’s evidence is believed then there would be no question of going to any other piece of  

evidence as her evidence by itself is sufficient to convict the accused as was rightly done by the  

Trial Court and the Appellate Court.

15. This  is  apart  from the  fact  that  the recovery memo Ex.P-11,  P-12,  P-13 and P-14  

through which blood stained spear, blood stained lathi, blood stained sword were recovered from  

Bheru Lal, Kailash Chandra, Purushottam and Gopal as also Ex. 15, the recovery memo of the  

blood stained clothes which were recovered from Bherulal as also Ex. C-1, the Forensic Science  

Laboratory (FSL) report provide enough corroboration to the evidence of Basanti Bai.  We are,  

therefore, of the considered opinion that:

“firstly, it is completely established that the appellants as also the other accused who has

not filed appeal had caused the murder of Shayam Lal and Balkishan;  

secondly, the theory propounded by the defence that it was done in the exercise of right to  

private defence is baseless and has been rightly rejected;  

thirdly, that the evidence led on behalf of the prosecution, the eye witness account by  

Basanti  Bai PW-7 and the other substantial evidence of recovery of the blood stained  

articles and clothes is fully established.”

16. Further it is fully established that the accused persons not only murdered Balkishan and  

Shayam Lal but  also committed  the offence under Section 439 read with Section 34,  IPC by  

setting at fire the tractor and household articles of the complainant.

17. No  other  point  was  urged  before  us.  The  appeal  has  no  merits,  it  is  accordingly  

dismissed.

18. At this stage, Shri Manish Singhvi, Learned Counsel for the State pressed the petition  

filed by the State against  the acquittal  of Girraj  (original accused No. 6).   We have seen the  

judgment of the High Court carefully.  We do not find any substantial material against original  

accused No. 6 Girraj.  The High Court has given good reasons for his acquittal.  The High Court  

has taken a possible view of the matter.  It is trite that when a possible view is taken, then there  

cannot be an interference in an appeal against acquittal  unless it is shown that the acquittal  is  

unsustainable or perverse.  Such is not the position here.  In that view of the matter, we dismiss  

the Special Leave Petition (Criminal) No. 169 of 2005 filed by the State.

.………………………..J.

[V.S.SIRPURKAR]

………………………..J. [J.M.PANCHAL]

NEW DELHI

August 10, 2009