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PETITIONER: STATE OF RAJASTHAN

       Vs.

RESPONDENT: TEJA RAM AND OTHERS

DATE OF JUDGMENT:       01/02/2000

BENCH: D.P.Mohapatro, K.T.Thomas

JUDGMENT:

     Thomas J.

     It  was by a midnight blitz that two sleeping  inmates of  a dwelling house were axed to death by armed assailants. One  of the victims was the old mother of the other  victim. The  younger among them was not the target of the assailants but  he was mistaken for his brother.  In the Sessions court seven  persons  were put on trial as the assailants  in  the aforesaid  double  murder  episode.  Out of  them  six  were convicted  under  Section 302 read with Section 149  of  the Indian  Penal  Code and for certain other lesser but  allied offences.   They were sentenced to imprisonment for life for the  principal  offence and for lesser terms for the  lesser offences.   When they appealed a Division Bench of the  High Court of Rajasthan set aside the conviction and sentence and acquitted them all.  State of Rajasthan has, therefore, come up in appeal to this Court by special leave.

     As  there were seven accused in the case, out of which six  are  the  respondents now, they can be referred  to  as accused  in the same rank as they were arrayed in the  trial court  so  that possible mistake in identifying them can  be prevented.   A1 Teja Ram, A2 Ram Lal and A3 Bhanwar Lal  are the  sons  of one Maga Ram and they are cousins of  deceased Ram  Lal.   Other accused are close relatives of  those  two accused.   The  backdrop  of  the case unfurls  a  story  of continued  hostility which existed as between the cousins on account  of disputes over landed properties.  PW15 Mota  Ram (son  of  deceased  Smt.   Gamni)  had  launched  litigation against  A1 and A2.  On a motion made by him the authorities concerned  have  initiated proceedings under Section 107  of the  Code  of Criminal Procedure against A1 Teja Ram and  A2 Ram Lal.  Thus, they looked upon each other with bitterness.

     The  incident  happened on the night next  morning  of which  was  a Sunday (13.9.1981).  Prosecution case is  that all  the  seven  accused,  armed with axe  and  lathis  etc. travelled in a tractor and at a subsequent stage they walked on foot and reached the house of the deceased by midnight.

     Deceased  Ram  Lal and his mother Gamni were  sleeping inside the room adjoining the gate of their house.  Mota Ram used to sleep at that place but on the fateful night Ram Lal thought  it convenient to sleep there as that was the  cruel game  of his fate.  The assailants entered into the room and

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hacked  both  the  deceased  with axe.  The  squall  of  the victims  rumbled the neighbour-hood.  All those who heard it rushed  to  the  scene  but by the  time  they  reached  the assailants  took to their heels and escaped from the  place. Other  inmates of the house carried the injured in a vehicle to  the hospital and on the way Mota Ram (PW15) informed the police  about  the incident at the Police Out Post at  Auwa. From there he proceeded to Kharchi police station and lodged the  FIR.  The SHO (PW21) recorded the statement of both the injured  who  were removed to the hospital thereafter.   Ram Lal  died  on the same night, while his mother lived  for  a week  more fighting with death and she too succumbed to  the injuries on 21.9.1981.

     Trial  court,  while  convicting six  accused,  mainly relied  on  Ex.   P31  and Ex.P32 which are  the  two  dying declarations  attributed  to  deceased  Ram  Lal  and  Gamni respectively  which were recorded by PW21, the Investigating Officer.   Besides  the  above, the trial  court  relied  on certain  circumstances,  such as the testimony of  witnesses who reached the scene saw the accused running away with axes and lathis, and recovery of the weapons effected pursuant to the informations elicited from the accused.

     But  the Division Bench of the High Court of Rajasthan declined  to act on the two dying declarations.  High  Court was not persuaded to place any reliance on the witnesses who claimed  to  have  seen the assailants running  away.   High Court put-forth two reasons for adopting that course.  First is  that  prosecution  failed  to  examine  any  independent witness  even  though  such  persons were  residing  in  the neighbour-hood,   and   the  witnesses   examined   by   the prosecution  for  that  point  are close  relatives  of  the deceased.   Second  is that there are discrepancies  between their  versions and such discrepancies are of a  substantial nature.   The  High  Court declined to act on  the  evidence relating  to  the recovery of axes for the main reason  that since  human  blood  could be detected only on one  of  them while  origin of the blood on the other was not established, there  was room for entertaining doubt as to the real person whose blow with the axe would have caused the injury.

     In  the final end the Division Bench, after voicing  a lamenting  chord  that  it  is unfortunate  that  two  cold blooded   murders  are  going   unpunished  in  this  case, expressed  its  view  that  it is  unsafe  to  maintain  the conviction.   Hence, the High Court set aside the conviction and sentence passed on the respondents.

     Though  on the defence side a number of witnesses were examined  neither  the trial court nor the  appellate  court placed  any reliance on any of them.  Nor did the  appellant make  any endeavour to convince us that those witnesses  are of any use for the defence.

     Mr.   Aruneshwar Gupta, learned counsel for the  State of  Rajasthan  contended that the approach made by the  High Court is wholly untenable in discarding the best evidence on the  strength of some trivial reasons.  Mr.  Doongar  Singh, advocate  for  the accused argued in extenso supporting  the reasoning  of  the  High  Court and  strongly  pleading  for maintaining the acquittal.

     We  are in agreement with the argument of Shri Doongar Singh that the High Court was justified in not acting on the

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two  dying declarations.  The injuries found on the body  of Ram  Lal  as noted by PW9 Dr.  Nand Kishore Sharma  are  the following:

     (i) Vertical incised wound with oozing of blood of 8.5 x  1.5  cms  x brain deep on the right  forehead  region  to frontal  region  from  eye brows to upward  lacerated  brain tissues  coming out from the wound.  Injury was grievous and was caused by sharp object.

     (ii) Hematoma of both the Eyelids of right eye.  (iii) Haemotoma of left upper eye lid.

     The  same  doctor noticed the following injury on  the body  of  Smt.  Gamni:  Vertical incised wound  with  blood oozing  with  8.5  x 3.0 x brain deep on the  left  temporal region 3 cm above the ear pinna.  Brain tissue was lying out of the wound.

     Even  if  the injured was able to mutter something  or even speak out something after sustaining the above injuries it  is  extremely  unsafe  to place  any  credence  on  such statements  as the brain functions of the injured would have impaired due to the brain injury.

     But  we  find it difficult to side-step the  remaining circumstances as lightly as Division Bench of the High Court has  down-staged them.  The first among the circumstances is the strong motive for A1 Teja Ram and A2 Ram Lal because the family  of  Mota Ram had moved the authorities  to  initiate proceedings  against  them under Section 107 of the Code  of Criminal  Procedure.  This shows the acuteness of  hostility which  prevailed as between the two warring factions.   That aspect  remains undisputed, though the defence contention is that they were falsely implicated on account of that enmity. Of  course  that  possibility  has  to  be  eschewed  before counting  the  enmity aspect as a circumstance  against  the accused.   For that endeavour the Court has to look at other circumstances  presented  by  the  prosecution  against  the accused.

     PW13  (Idan),  father of Mota Ram was sleeping  inside his  house during the night.  Mota Ram was also sleeping  in the  same  room.   Gamni  and her other  son  Ram  Lal  were sleeping  inside the room which adjoins the gate.  PW13 said in  his evidence that on hearing the sound of a cry he  woke up  and  rushed to the place wherefrom the cry emanated  and the  he  saw all the accused, among whom he noticed A1  Teja Ram  and  A2 Ram Lal holding Kulhadi (axe).  They were  seen running away from the scene.

     PW18 (Roopa Ram) who is brother of PW13 (Idan) who was sleeping in his house situated in the neighbour-hood and his son  Chhoga Lal (PW4) who was sleeping inside the cabin of a truck  (which  was  parked  in front of  the  house  of  the deceased) also heard the sound of cry and they too rushed up to  the  scene and saw all the accused scampering away  from the  place and A1 and A2 had axes with them and others  have lathis.

     PW10  (Oghada  Ram) is another brother of PW13  (Idan) and  he  too  was residing close by.  He also said  that  by midnight  he heard the sound of a loud cry from the house of his brother.  PW13 -Idan and he also rushed to the place and

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saw  the accused, among them A1 (Teja Ram) and A2 (Ram  Lal) were in possession of axes.

     The fact that the above witnesses were residing in the immediate  neighbour-hood  was  not disputed either  in  the trial court or at the appellate stage.  When the incident of this nature occurs the persons who would normally run to the place  of occurrence are those living in the neighbour-hood. But  the  High Court did not act on the testimony  of  those persons  who  reached  at the scene immediately  on  a  very fragile reasoning.

     High  Court pointed out a discrepancy in the  evidence as  between  two sets of witnesses, PW4 Chhogalal  and  PW15 Mota  Ram said that the assailants were seen going out  from the western gate of the house while PW10 Oghada Ram and PW18 Roopa  Ram  said  that the assailants went out  through  the eastern  gate.   This according to the High Court is a  very substantial contradiction between them.

     There  is  little justification for blowing up such  a motely  discrepancy  to the size of a mountain and  then  to reject  the  whole  evidence by depicting it as  a  material discrepancy.   What the High Court over-looked in the  above exercise  was the core of the evidence and consideration  of it on broad probabilities.  We have to bear in mind the time when the occurrence took place  the wee hours of the night, the  sleeping  locality  was woken up by the  yelling  voice crying  for  help  from ones own kith and kin.   When  they rushed  to the scene their focus would be on the victims and the identity of the fleeing assailants.  Perhaps some of the assailants  would have gone out through one gate and  others through  the  other gate.  After all both gates were of  the same house and are situate close to each other.

     We have absolutely no doubt that whoever rushed to the spot  on  hearing  the  squeak or the out cry,  it  is  most unlikely  that they would have remained where they were even after  hearing the cries.  It is extremely probable that the witnesses  would have seen the fleeing assailants in such  a hubbub  and  if some witnesses did not correctly notice  the exact  gate (out of the two gates) through which each one of the  assailants  flushed  out, it is not a  good  cause  for drawing any adverse inference against such witnesses.

     Another  reason which the High Court advanced to repel the testimony of such a good number of probable witnesses is that  they are all close relatives of the deceased and  that independent  witnesses were not examined by the prosecution. The over-insistence on witnesses having no relation with the victims  often results in criminal justice going awry.  When any  incident  happens in a dwelling house the most  natural witnesses  would  be the inmates of that house.  It  is  un- pragmatic  to  ignore such natural witnesses and  insist  on outsiders  who  would not have even seen any thing.  If  the Court  has  discerned  from the evidence or  even  from  the investigation records that some other independent person has witnessed any event connecting the incident in question then there  is justification for making adverse comments  against non-examination  of  such  person  as  prosecution  witness. Otherwise, merely on surmises the Court should not castigate a  prosecution  for  not  examining  other  persons  of  the locality  as  prosecution  witnesses.   Prosecution  can  be expected to examine only those who have witnessed the events and  not  those who have not seen it though  the  neighbour-

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hood may be replete with other residents also.

     One  of the circumstances which trial court relied  on as  incriminating  the accused is the recovery of  two  axes (Kulhadi)  on the strength of statements of A1 Teja Ram  and A2 Ram Lal.  They were subjected to chemical examination and the  result is that both axes were found stained with blood. When  it  was  further subjected to test by  Serologist  the blood  on one axe was found to be of human origin, while the blood  stain  on  the  other  axe   was  found  to  have  so disintegrated  that its origin became undetectable.   Ex.P10 is the report of the Serologist.

     Axes hidden beneath the rags were disinterred with the help of information elicited from the accused.  According to PW  21  (the Investigation Officer) A1 Teja Ram told him  I have  concealed  the axe under some rags and kept it at  the left  corner  of  the  hut in my farm at  Dhokwa.  The  axe recovered  pursuant  thereto  on  20.9.1981  as  per  Ex.P14 seizure  memo was marked as Article No.8.  Similarly, A2 Ram Lal  has  told  the  Investigation   Officer  that  I  have concealed the axe under some rags and placed it on a slab in the  store of my house. On the said information another axe was  recovered on 23.9.1981 as per Ex.P3 Seizure Memo.  That axe has been marked as Article 1.

     The   facts   discovered   from   the   aforementioned statements  and recovery of axes are that those weapons were concealed by the said two accused.

     Normally,  the  above  circumstance should  have  been given   weighty   consideration  in    the   evaluation   of circumstantial  evidence.  But the High Court down staged it on  a reasoning which is difficult to sustain.  This is what the  High Court has observed regarding the evidence relating to the recovery of the two axes (Kulhadi).

     The  evidence  of  the blood stained Kulhadi  is  not sufficient  as  the prosecution has not been able  to  prove that  Kulhadi  which  was  stained   with  human  blood  was recovered  from  whom.   Thus it is not  clear  whether  the recovered  Kulhadi was of Teja Ram or of Ramlal.  The  other infirmity  in the Chemical Examiners Report is that it does not mention the extent of blood seen on the Kulhadi.  It has not been established clearly as to which particular accused, the incriminating axe belonged.  As such, it can not be used against any one of these two accused.

     Failure  of the Serologist to detect the origin of the blood,  due to disintegration of the serum in the meanwhile, does not mean that the blood stuck on the axe would not have been  human  blood  al all.  Sometimes  it  happens,  either because   the   stain  is  too   insufficient  or   due   to hematological  changes  and  plasmatic  coagulation  that  a Serologist  might  fail to detect the origin of  the  blood. Will  it  then  mean that the blood would be of  some  other origin?  Such a guess work that blood on the other axe would have been animal blood is unrealistic and far-fetched in the broad  spectrum  of this case.  The effort of  the  criminal court should not be to prowl for imaginative doubts.  Unless the  doubt  is of a reasonable dimension which a  judicially conscientious  mind  entertains  with  some  objectivity  no benefit can be claimed by the accused.

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     Learned  counsel  for  the accused made an  effort  to sustain  the rejection of the above said evidence for  which he cited the decisions in Prabhu Babaji vs.  State of Bombay [  AIR 1956 SC 51] and Raghav Prapanna Tripathi vs State  of UP  [AIR  1963  SC 74].  In the former Vivian Bose  J.   has observed  that  the Chemical Examiners duty is to  indicate the  number of blood stains found by him on each exhibit and the  extent of each stain unless they are too minute or  too numerous  to be described in detail.  It was a case in which one  circumstance projected by the prosecution was just  one spot  of blood on a dhoti.  Their Lordships felt that blood could equally have spurted on the dhoti of a wholly innocent person  passing through in the circumstances described by us earlier  in the judgment. In the latter decision this Court observed  regarding  the certificate of a chemical  examiner that  inasmuch  as  the blood stain is not proved to  be  of human  origin the circumstance has no evidentiary value  in the  circumstances connecting the accused with the  murder. The  further  part of the circumstance in that  case  showed that  a  shirt was seized from a dry cleaning  establishment and  the proprietor of the said establishment had  testified that when the shirt was given to him for dry cleaning it was not blood stained.

     We are unable to find out from the aforesaid decisions any legal ratio that in all cases where there was failure of detecting  the origin of the blood the circumstance  arising from  recovery  of  the  weapon  would  stand  relegated  to disutility.   The  observations in the aforesaid cases  were made  on the fact situation existed therein.  They cannot be imported to a case where the facts are materially different.

     Learned counsel, in this context invited our attention to  one step which PW21 (Investigating Officer) had  adopted while  preparing  the  seizure memos Ex.P3 and  Ex.P.4.   He obtained  the signature of the accused concerned in both the seizure  memos.   According  to   the  learned  counsel  the aforesaid  action  of the Investigating Officer was  illegal and  it has vitiated the seizure.  He invited our  attention to  section 162(1) of the Code which prohibits collecting of signature  of  the  person whose statement  was  reduced  to writing  during  interrogation.  The material words  in  the sub-section  are these:  No statement made by any person to a  police  officer in the cause of investigation  under  the chapter,  shall,  if  reduced to writing, be signed  by  the person making it;..

     No  doubt  the aforesaid prohibition is in  peremptory terms.   It is more a direction to the investigating officer than  to the court because the policy underlying the rule is to  keep  witnesses free to testify in court  unhampered  by anything  which the police claim to have elicited from them. (Tahsildar Singh vs.  State of UP AIR 1959 SC 1012 and Razik Ram  vs.   JS  Chouhan  AIR  1975   SC  667).   But  if  any Investigating  Officer,  ignorant  of  the  said  provision, secures  the  signature  of  the  person  concerned  in  the statement, it does not mean that the witnesses testimony in the  court  would thereby become contaminated  or  vitiated. The  Court will only reassure the witness that he not  bound by  such  statement  albeit his signature  finding  a  place thereon.

     That  apart, the prohibition contained in  sub-section (1) of Section 162 is not applicable to any proceedings made

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as  per  Section  27  of the Evidence Act.   It  is  clearly provided in sub-Section (2) of Section 162 which reads thus: Nothing  in  this section shall be deemed to apply  to  any statement  falling  within the provisions of clause  (1)  of section  32  of the Indian Evidence Act, 1872, or to  affect the provisions of section 27 of that Act.

     The  resultant  position  is  that  the  Investigating Officer is not obliged to obtain the signature of an accused in  any statement attributed to him while preparing  seizure memo  for the recovery of any article covered by Section  27 of  the  Evidence  Act.   But, if  any  signature  has  been obtained by an investigating officer, there is nothing wrong or illegal about it.  Hence, we cannot find any force in the contention  of the learned counsel for the accused that  the signatures  of  the  accused in Ex.P3 and P.4  seizure  memo would vitiate the evidence regarding recovery of the axes.

     Learned  counsel  for the respondent pointed  out  the evidence  of  Head  Constable  Jagan   Nath  (PW8)  who  was in-charge  of the police outpost at Auwa.  The witness said, initially  in his evidence, that PW15 (Mota Ram who  reached the  outpost soon after the incident) who reported about the incident could not mention the names of the assailants as he said  that  he did not know about the  assailants.   Learned counsel, laying emphasis on the aforesaid evidence contended that  it  knocks the bottom off the prosecution case.   Shri Aruneshwar  Gupta, learned counsel for the State invited our attention  to a further portion of PW8s evidence where  the witness  was  permitted to be cross-examined by  the  Public Prosecutor  during  which  PW8   admitted  having  told  the Investigation  Officer  that PW15 had in fact mentioned  the names of the accused as the assailants.

     One of the permitted modes of impeaching the credit of a   witness  is  proof  of   former  statements   which   is inconsistent with any part of his testimony, as indicated in Section  155(3) of the Evidence Act.  But the mode of  using such former statements for the purposes of contradicting the witness is prescribed in Section 14 of the Evidence Act.  It cannot  be contended that the aforesaid former statement was not  available  for the defence to confront PW8  (Mota  Ram) since  the  Head Constable PW15 was examined later.  It  was open to the defence to request for recalling the witness for the  purpose  of  further cross-examination to  impeach  his veracity  on  the strength of the alleged  former  statement which  came on record subsequently (vide Naba Kumar Das  vs. Rudra  Narayan Jana AIR 1923 PC 95).  In this case PW15  was not  asked anything about what he told or not told  PW8-Head Constable.   We  are unable to appreciate the contention  of the learned counsel on that score.  In view of the retracing made  by PW15 during later part of the cross-examination, we are  not  disposed  to give any further opportunity  to  the accused  to confront PW8 with that material.  We are of  the considered  view  that the High Court has committed  serious error  in rejecting very sturdy circumstances as against  A1 Teja  Ram and A2 Ram Lal the cumulative effect of which  was the irresistible conclusion that they were assailants in the double  murder wherein deceased Ram Lal and his mother Gamni were killed.

     We,  therefore, set aside the order of acquittal in so far  as  the  said two accused (Teja Ram and  Ram  Lal)  are concerned.  We restore the conviction and sentence passed on them by the trial court.  We direct the Sessions Judge, Pali

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(Rajasthan)  to take immediate steps to put A1 Teja Ram  and A2  Ram Lal back in prison to undergo the remaining  portion of the sentence.