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PETITIONER: HARI RAM & ORS.

       Vs.

RESPONDENT: STATE OF RAJASTHAN .

DATE OF JUDGMENT:       09/05/2000

BENCH: S.N.Variava, G.B.Pattanaik

JUDGMENT:

PATTANAIK,J.

     This  appeal  by  the four accused  persons  is  under Section  2  of  the Supreme Court (Enlargement  of  Criminal Appellate  Jurisdiction)  Act, 1970 against the Judgment  of the  Division  Bench  of Rajasthan High  Court  in  Criminal Appeal  No.   299/84.   By the impugned judgment,  the  High Court  of  Rajasthan  set  aside  the  order  of  acquittal, recorded  by  the  Distt.   & Sessions  Judge,  Bikaner  and convicted  the appellants under Section 302/34 and sentenced them to imprisonment for life.

     The prosecution case in nutshell is that on 12.7.82 at about  midnight, while the deceased was sleeping outside his house,  accused  Hariram, Harji, Sahiram and  Mukhram  being armed  with axe, Barshi and lathis, assaulted the  deceased, on account of which, the deceased sustained serious injuries and  ultimately succumbed to those injuries.  Brother of the deceased  gave an oral report at the Police Station at  3.45 a.m.,  which was reduced to writing by PW14 and treating the same to be FIR, he started investigation.  It was alleged in the  said FIR that earlier a dispute had arisen between  the deceased  and  Hariram  and  in  course  of  their  dispute, deceased  had given a blow to Hariram.  Hariram then started putting rubbish in front of the house of the deceased and on this  score, there was hot exchange of words between Sahiram and  the  deceased  on  the  very morning  of  the  date  of occurrence.   It  is  the   further  prosecution  case  that Karnaram  PW7 heard some sound and when he reached the place of  occurrence, he found all the accused persons  assaulting the  deceased  with their respective weapons and  when  said Karnaram  challenged,  the accused persons left  the  place. Said  PW7  then  saw  that deceased had  already  died  with several  injuries  on  different  parts  of  his  body  and, thereafter,  the  First  Information Report  was  given,  as already   stated.   The  post-mortem   report  Exhibit   P20 indicates  that  the  deceased had received as  many  as  26 injuries and all the injuries were ante-mortem in nature and could  be caused by blunt weapon.  On the basis of the post- mortem  report  and the medical evidence of the doctor,  the Sessions  Judge came to the conclusion that the death of the deceased  is  homicidal and this conclusion of the  Sessions Judge  had  not  been  assailed in appeal nor  has  it  been assailed  before  us.  The learned Sessions  Judge,  however

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analysed  the evidence of the eye-witnesses PWs 6, 7, 9  and 10  and  was of the opinion that PWs 6 and 7 could not  have seen  the occurrence nor had they seen the actual assault by the  accused  persons and according to the learned  Sessions Judge, the absence of injuries by the sharp edged weapons on the   dead  body  of  the   deceased  proves  that  the  two eye-witnesses  PWs  6  and  7   have  really  not  seen  the occurrence.   The  learned Sessions Judge also analysed  the evidence  of  PWs 9 and 10 and came to the  conclusion  that their evidence cannot be held to be trust-worthy inasmuch as PW  9  had stated that during the whole night, he could  not know  as  to  who  had killed the  deceased,  while  he  was sleeping.   After discarding the testimony of the  aforesaid four  eye- witnesses, which the prosecution had examined  to bring  home  the  charge against the  accused  persons,  the Sessions  Judge  ultimately came to the conclusion that  the prosecution  case cannot be said to have been proved  beyond reasonable doubt and as such, acquitted the accused persons. On  appeal being carried by the State, the High Court in the impugned  Judgment  re-appreciated the evidence of the  said eye-  witnesses.   The  High Court, while  appreciating  the testimony of PWs 6 and 7, focussed its attention to each and every  ground  on which the learned Sessions Judge  did  not rely  upon  their  testimony  and  ultimately  came  to  the conclusion   that  the  appreciation  of  evidence  of   the aforesaid two eye-witnesses by the learned Sessions Judge is totally  perverse  and  such   erroneous  appreciation   has vitiated  the  ultimate conclusion.  PW6 is the wife of  the deceased  and  is the most natural witness, but the  learned Sessions  Judge  even doubted her presence on the  scene  of occurrence.   The High Court also examined the conclusion of the  learned  Sessions Judge and indicated in  the  impugned Judgment  as  to how improper appreciation of  evidence  has vitiated  the  conclusion that the occurrence took place  in darkness  and  therefore, the witnesses could not have  seen the  accused persons, assaulting the deceased.  After coming to  the conclusion that the Sessions Judge, illegaly came to hold that PWs 6 and 7 could not have seen the occurrence and relying upon their testimony, the High Court ultimately held that  the prosecution case has been proved beyond reasonable doubt  and  the  order of acquittal is  wholly  unjustified. Accordingly,  the  accused-appellants were convicted of  the charge  under Section 302/34 IPC and have been sentenced  to imprisonment for life.

     Mr.   Indra Makwana, the learned counsel appearing for the   accused-appellants,  vehemently   contended  that  the learned Sessions Judge had fully appreciated the evidence on record  and  for  justifiable  reasons had  not  placed  any reliance  on the evidence of PWs 6 and 7 and, therefore, the order  of  acquittal could not have been lightly  interfered with  by the High Court.  According to the learned  counsel, High  Court,  therefore, committed serious error in  relying upon  the evidence of PWs 6 and 7 and as such the conviction of  the appellants cannot be sustained.  The learned counsel placed  before  us  the evidence of the aforesaid  two  eye- witnesses at length and contended that their evidence on the face of it appears to be untrustworthy and no reliance could have been placed upon the same.

     Mr.   Sushil  Kumar  Jain,   the  learned   Additional Advocate  General  for the State of Rajasthan on  the  other hand  contended  that  the  power of the  High  Court  while hearing an appeal against an order of acquittal is in no way different  from  the power while hearing an  appeal  against

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conviction  and the Court, therefore was fully justified  in re-appreciating the entire evidence, upon which the order of acquittal  was  based.  The High Court having  examined  the reasons  of  the learned Sessions Judge for  discarding  the testimony of PWs 6 & 7 and having arrived at the conclusion, that those reasons are in the realm of conjectures and there has  been  gross  miscarriage  of   justice  and  the   mis- appreciation  of  the  evidence on record is the  basis  for acquittal,  was  fully  entitled to set aside  an  order  of acquittal  and no error can be said to have been  committed. It  is  too well settled that the power of the  High  Court, while  hearing an appeal against an acquittal is as wide and comprehensive  as  in an appeal against a conviction and  it had full power to re- appreciate the entire evidence, but if two  views  on  the evidence are  reasonably  possible,  one supporting   the   acquittal  and   the   other   indicating conviction,  then  the High Court would not be justified  in interfering with the acquittal, merely because it feels that it  would  sitting  as a trial court, have taken  the  other view.   While  re-  appreciating the evidence, the  rule  of prudence  requires  that the High Court should  give  proper weight  and consideration to the views of the learned  trial Judge.   But  if  the  judgment of the  Sessions  Judge  was absolutely  perverse,  legally erroneous and based on  wrong appreciation  of  the  evidence, then it would be  just  and proper  for  the  High  Court to  reverse  the  judgment  of acquittal,  recorded  by the Sessions Judge,  as  otherwise, there  would  be gross miscarriage of justice.   Bearing  in mind  the  aforesaid parameters and having  scrutinized  the evidence  of  the two eye- witnesses PWs 6 and 7 as well  as the  reasoning  advanced  by the learned Sessions  Judge  in discarding their testimony, we have no hesitation to come to the  conclusion that the learned Sessions Judge, instead  of appreciating the evidence as a court of law, entered into an arena  of  conjecture  and recorded  the  conclusion,  which cannot  be  held  to  be a conclusion on the  basis  of  the evidence  on  record.  Instead of analysing the evidence  of the  two eye-witnesses and trying to find out the  intrinsic worth  of  their testimony, the learned Sessions  Judge,  on wrong  assumptions and by mere conjecture was of the opinion that  the two eye-witnesses PWs 6 and 7 could not have  seen the  occurrence  at all.  The High Court,  therefore,  while sitting  in  appeal, was fully justified in examining  those reasons  of the learned sessions Judge and in coming to  the conclusion   that  the  reasons  on   the  face  of  it  are unsustainable  in  law  and  there is  no  justification  to discard  the  testimony of the aforesaid two eye-  witnesses PWs  6 and 7.  We ourselves having scrutinized the  evidence of  the two eye-witnesses PWs 6 and 7, which had been placed before  us  at  great  length,   entirely  agree  with   the appreciation made by the High Court in the impugned Judgment and  come to the conclusion that the two eye-witnesses  must be held to be trustworthy and full reliance can be placed on their  testimony.  These two witnesses having not only  seen the  occurrence but also they have seen the accused  persons with their respective weapons in their hands and mercilessly assaulting  the deceased, which is fully corroborated by the medical evidence and presence of large number of injuries on the  dead body of the deceased on different parts.  In  this view of the matter, we see no infirmity with the conclusions arrived at by the High Court in the impugned judgment and in relying  upon the testimony of the two trustworthy witnesses PWs  6  and  7, one of whom happens to be the  wife  of  the deceased  and  as  such is the most natural  witness  to  be present  and  having  witnessed   the  occurrence.   In  the

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aforesaid premises we do not find any merits in this appeal, which accordingly stands dismissed.