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CASE NO.: Appeal (crl.) 666 1991

PETITIONER: STATE OF RAJASTHAN

       Vs.

RESPONDENT: HANUMAN

DATE OF JUDGMENT:       04/12/2000

BENCH: S.S.M.Quadri, D.P.Mohapatro

JUDGMENT:

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     J U D G M E N T

     D.P.MOHAPATRA,J.

     This  appeal  filed  by  the  State  of  Rajasthan  is directed against the judgment of the High Court of Rajasthan in    Criminal    Appeal      No.147/85    acquitting    the respondent-Hanuman  of  the charge under Section 302 IPC  on setting aside the judgment and order of conviction passed by the   learned  Sessions  Judge,   Ajmer,  in  Sessions  Case No.49/1983.

     Shorn  of unnecessary details the prosecution case may be stated thus :@@           JJJJJJ

     On  9.10.1982  at  about 6.00 p.m.   when  Panchu  the deceased  tried  to  draw  water from  the  common  well  to irrigate  his  lands  and  change the course  of  the  water towards  his  fields the respondent-Hanuman  and  co-accused Ganesh  and  Ram  Kumar forbade him from doing  so.   Ganesh caught  hold  of Panchu and Hanuman gave three blows on  his head  with  an axe held by him.  When Smt.  Badam,  wife  of Panchu and his sister Chhoti intervened to save him from the assault  of Hanuman, Ram Kumar assaulted them with a  Kassi. On  hearing  the cry of Chhoti, Arjun came to the spot  from the  field nearby and on seeing him the accused persons fled away.   Chhoti  immediately  rushed home  and  reported  the incident  to her brother Balu who on reaching the spot found Panchu  lying  on the ground with serious head  injury.   He took  Panchu  home in a cart and from there he was taken  to the  government  hospital  at Kishangarh where  the  doctors declared  him  dead.   Smt.  Badam and Chhoti who  had  also sustained  injuries,  accompanied  Panchu to  the  hospital. They  were  examined  by  Dr.C.L.Sharma   (PW  5)  who  also conducted  the  autopsy on Panchu.  Balu lodged the  FIR  in Kishangarh  Police Station at about 10.00 p.m.  on  9.10.82.

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The  Police sprung into action, conducted investigation  and on completion of the investigation chargesheet was submitted under  Section  302, read with Section 34, and Sections  323 and  324 against Hanuman, Ganesh and Ram Kumar.  The accused persons   having  denied  the   charges  faced  trial.   The prosecution  examined  in all 12 witnesses including  Chhoti PW-1  and Smt.  Badam PW-2, who are the eye-witnesses to the occurrence, Balu PW-3 and Arjun PW-6 who are post occurrence witnesses,   Dr.C.L.Sharma,   PW-5,    who   conducted   the post-mortem  examination  and  Dayal Singh  PW-10,  and  the Investigating  Officer.   The  learned   Sessions  Judge  on appreciation  of the evidence accepted the ocular of PWs 1 & 2  which  was  corroborated  by  the  medical  evidence  and convicted  Hanuman, the respondent herein, under Section 302 IPC  and  sentenced him to life imprisonment and a  fine  of Rs.1,000/-,  acquitted accused Ram Kumar of the charge under Section  302  read with Section 34 IPC but held  him  guilty under  Sections  323  and 324 IPC and gave  him  benefit  of Section  4(1)  of the Probation of Offenders Act subject  to the  condition that he produces one surety of Rs.1,000/- and one  more  surety with the condition that he  will  maintain good  conduct for a period of one year and will not  disturb the

     peace  and  will  present himself  for  suffering  the punishment  whenever required.  Accused Ganesh was acquitted of all the charges framed against him.

     Against  the  judgment of the learned  Sessions  Judge accused  Hanuman  filed the appeal in High Court  which  was disposed  of  by the impugned judgment in the  manner  noted earlier.

     The  High Court set aside the judgment of the  learned Sessions  Judge on two grounds - that both the eye-witnesses PWs  1  and 2 are highly interested persons and since  their evidence is in direct conflict with the medical evidence the same cannot be relied upon, and that the prosecution has not explained the injuries found on the accused persons.

     We  have carefully perused the judgments passed by the learned Sessions Judge and by the High Court.  We are of the view  that both the reasons stated by the High Court in  the impugned  judgment are unsustainable.  The position is  well settled  that evidence of eye- witnesses cannot be discarded merely  on  the  ground  that  they  are  relatives  of  the deceased.   Normally close relations of the deceased are not likely to falsely implicate a person in the incident leading to  the  death of the relation unless there are very  strong and  cogent reasons to accept such criticism.  Further, from the testimony of the two ladies Smt.  Badam and Chhoti whose presence  at the spot was not disputed by the defence it  is clear  that they have described the incident in a clear  and graphic  manner.   They  have  categorically  asserted  that respondent-  Hanuman  gave three blows with his axe  on  the head  of  Panchu.   Though  the witnesses  were  subject  to searching   cross-examination  nothing   material  could  be elicited  from  them  which  may   cast  a  doubt  on  their credibility.    The   learned  trial   judge  who  had   the opportunity  of marking their demeanor in the Court assessed their  evidence and did not find any good reason to  discard their  testimony.   In  the   circumstance  the  High  Court committed  an  error in discarding their testimony  on  this ground.

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     The  other question that arises is whether the  ocular evidence  of PWs 1 and 2 is against the medical evidence  in the  case.  The High Court has answered the question in  the affirmative  going by the statement of the two eye-witnesses that  Hanuman  gave three blows on the head of the  deceased Panchu  with  the  axe but the Doctor PW-5  found  only  one injury  on  the  head  of  the  deceased.   PW-5  found  the following injuries on the deceased :

     "i)  Lacerated  wound  of cmx2.5 cm bone deep  on  the occipital region at skull in oblique direction with multiple fractures  of occipital bone in small pieces with a cut of 2 cm long on skull.  Small portion of brain was also seen.

     ii) The small abraisions on left side of forehead over an area of 4 cm x 4 cm;

     iii)  Abraisions  1.5 cm x 1 cm on the roof  of  nose. All  the above injuries were ante-mortem in nature.  As  per external  injury with little clot under the scalp there were multiple  fracture of occipital bone.  There was  laceration of  memberance under the injury no.1.  There was a laceraton 4  cm  x  2cmx2cm on brain in occipital  region  just  below injury no.1 with a blood clot.  The cause of death was shock due  to  severe  haemorrahage from laceration of  brain  and multiple  fracture  of occipital bone.  The  above  injuries were  inflicted  by blunt weapon.  These injuries  could  be inflicted  by blunt side of a spade or an axe.  Injury  no.1 was sufficient in the ordinary nature to cause death."

     From  the evidence of PW-5 it is clear that the injury found  on the head of the deceased was possible if the  blow was  struck  with  the blunt side of the axe  and  the  said injury  was  sufficient in ordinary course to  cause  death. The  learned  Sessions Judge adverting to the contention  of the  defence  regarding improbability of the version of  the eye-witnesses  observed  that their statement to the  effect that  three  blows  with the axe dealt on the  head  of  the deceased cannot be correct and it appears that only a single blow  was  given on the head.  It is relevant to  note  here that  other  injuries have also been found by the doctor  on the  face  and  shoulder  of   the  deceased.   Reading  the statement  of  the  eye-witnesses and the  evidence  of  the doctor  we do not find any serious contradiction between the two which may form the basis for discarding the testimony of the eye-witnesses.  The High Court, in our view, was clearly in error in rejecting the ocular evidence on that ground.

     Coming  to  the  other reason stated in  the  judgment under  challenge that the prosecution has not explained  the injuries  found on the respondent-Hanuman the learned  trial judge  had considered this question.  The High Court did not accept  the  contention of the prosecution that there is  no acceptable  evidence to show that Hanuman suffered the  said injuries  in  course  of  the incident giving  rise  to  the criminal  case  and  also  that the injuries  are  minor  in nature.

     The  High Court did not deal with the reasons given by the  trial  court before casting a doubt on the  prosecution case  making a general observation that it has not explained the   injuries  found  on   the   respondent-Hanuman.    The prosecution  is  not bound to explain injuries found on  the accused  in  all  cases.   It is to be  kept  in  mind  that

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according to the defence case the occurrence took place when the respondent-Hanuman wanted to use the facility of drawing water from the tube-well when his turn came at 6.00 p.m.  on the  fateful  day,  then Panchu assaulted him with  a  lathi whereafter Hanuman in his defence pushed him and Panchu fell on  the  ground hitting a stone which resulted in  the  head injury  supplied  by  him.  It was the further case  of  the defence that the two ladies PWs 1 and 2 pelted stones on the accused persons causing injuries to them.  The learned trial judge  on  discussion  of  the  evidence  of  the  witnesses examined  on behalf of the defence had discarded the defence version.   The High Court has neither discussed the evidence of  the  defence  witnesses  nor given any  reason  for  not accepting the finding of the trial court in this regard, but merely  observed  that  the  prosecution  having  failed  to explain  the  injuries on the respondent-Hanuman,  its  case cannot  be  accepted.  No doubt the appellate  court  should assess  the evidence on record with a view to satisfy itself that  the appreciation of evidence by the trial court is not vitiated  on account of any erroneous approach or illegality and it is not palpably erroneous.  The sustainability of the judgment  depends  on the soundness of the reasons given  in support  of  the  findings  and   the  conclusion.   On  the discussions  and  for  the reasons stated in  the  foregoing paragraphs  the appeal is allowed, impugned judgment is  set aside  and  the  judgment  of  the  trial  court  convicting respondent-Hanuman  under Section 302 IPC and sentencing him to  undergo  rigorous  imprisonment for life and a  fine  of Rs.1,000/- is restored.