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PETITIONER: MANI RAM

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT31/03/1993

BENCH: ANAND, A.S. (J) BENCH: ANAND, A.S. (J) SINGH N.P. (J)

CITATION:  1993 AIR 2453            1993 SCR  (2) 852  1993 SCC  Supl.  (3)  18 JT 1993 (4)   520  1993 SCALE  (2)333

ACT: Supreme  Court (Enlargement of Appellate Jurisdiction)  Act, 1970:       Section      2(a)--Appeal--Appreciation       of evidence--Whether conviction granted by High Court proper. Penal  Code, 1860:  Section 302 read with Section  27,  Arms Act--Conviction--Appreciation   of   evidence--Semi-Digested food  found  in  the stomach  of  deceased--Time  of  taking food--Deduction--Evidence       of       Witnesses--Validity of--Evidence relating to substitution of  cartridges--Effect of.

HEADNOTE: The prosecution case was that about 20-22 days prior to  the occurrence the appellant and his brother removed the fencing over the field of the deceased.  This resulted in a  quarrel and  created  ill-feelings  between  the  deceased  and  the appellant and his brother. On  the date of occurrence, the deceased went to his  field. Later on his wife, P.W.1 and his son, PW2 went to the  field carrying meals for the deceased.  The deceased took his meal and  at about 12.30 p.m., all the. three were  returning  to their  village from the field, near at the  water-course  of the village, the appellant, who was coming from the  village side,  gave a ’lalkara’ to the deceased and he fired a  shot from  his pistol at the deceased.  The  appellant’s  brother exhorted him to kill the deceased.  Thereupon the  appellant fired  three more shots from his pistol.  The deceased  fell down and died at the spot. PW1 accompanied by one Ganpatram went to police station  and lodged the first information report at about 3 p.m. and  the police investigation was commenced. The  appellant  and  his brother were  sent  up  for  trial, charging  the  former under section 302 IPC and  the  latter under  section  302/114 IPC.  Both were also  charged  under section 27 of the Arms Act. The  Trial Court acquitted the appellant and his brother  of all the 850 charges,  as  it found that the prosecution  was  unable  to prove the case against them. The  State’s  appeal was partly allowed by the  High  Court.

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The High Court set aside the acquittal of the appellant  and convicted  him  for  an offence under section  302  IPC  and sentenced him to undergo life imprisonment.  The High  Court maintained the acquittal of the appellant’s brother.   Under  section 2(a) of the Supreme Court  (Enlargement  of Appellate  Jurisdiction)  Act, 1970 the present  appeal  was riled, contending that the judgment of the Trial Court could neither  be styled as perverse nor even as unreasonable  and that  there was no other substantial and compelling  reasons which  could  justify  the setting aside  of  the  order  of acquittal  and,  therefore, the High Court should  not  have interfered with the order of acquittal; that the presence of undigested  food in the stomach of the deceased  belied  the prosecutions,  case  and that the Trial Court was  right  in holding that the deceased could not have taken the meals  at the time stated by his wife PW1 and his son, PW2 or murdered at  12.30  p.m., as alleged; that the  inordinate  delay  in sending the empty cartridges to the ballistic expert went to show that the possibility that the same had been substituted by  the  investigating  agency could not be  ruled  out  and therefore the conviction of the appellant by the High  Court was not justified.    The  State  submitted that since it was an  appeal  under Section  2  of the Supreme Court (Enlargement  of  Appellate Jurisdiction) Act, 1970, this court could itself  appreciate the  evidence  to determine the guilt or  otherwise  of  the appellant;  that  the findings recorded by the  Trial  Court were  based on surmises and conjectures and the  High  Court was perfectly justified in reversing the order of acquittal; that  the evidence of PW1 and PW2  conclusively  established that  the crime had been committed by the appellant  by  his pistol and their testimony had received ample  corroboration not  only  from the statement of the doctor, PW9,  but  also from  the  evidence of PW11l the ballistic expert,  who  had opined  that the four empty cartridges had been  fired  from the licenced pistol of the appellant and could not have been fired  from  any other weapon; that being  rustic  villagers much  importance could not be attached to the time given  by PW1  and PW2 during their depositions about the  exact  time when  the deceased may have had his meals and  therefore  it could not be said that the medical 851 evidence had in any way belied the prosecution case. Dismissing the appeal, this Court, HELD:  1.01.  The  process of  digestion  depends  upon  the digestive  power  of  an  individual  and  varies  from   in individual to an individual.  It also depends upon the  type and  amount  of  food taken.  The  period  of  digestion  is different  for different types of food.  Some food  articles like  mutton,  chicken etc. would take more time  for  being digested as compared to vegetarian food.  No question at all were  asked from the wife of the deceased about the-type  of food  served  by her to her husband or the  amount  of  food taken  by the deceased.  That apart, the time stated by  the witnesses as to when the deceased took his food was only  an approximate  time as it was not even suggested to  PW1  that she  had a wrist watch and had actually seen the  time  when her  husband took his food.  Too much play on such  slippery factors goes against realism and is not enough to  discredit the otherwise reliable testimony of PW1. [856E-F] 1.02. The doctor opined that digestion begins in 1 or  1-1/2 hours.  From this testimony, what was sought to be made  out by  the defence was that had the occurrence taken  place  at 1230  noon,  the deceased would have had  his  meals  before 11.00 a.m. as semi-digested food was found in the stomach of

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the  deceased.  The emphasis on this aspect of the  case  by the  Trial Court, is misplaced because the medical  evidence is only an evidence of opinion and is hardly decisive. [856- D] 1.03.  The evidence of both the witnesses PW1 and  PW2,  the widow  and  son  of  the  deceased,  shows  that  they   are consistent  in their versions not only about the  assailants but  also about the manner of assault.  Both  the  witnesses have  given  a  vivid description of  the  occurrence.   The statement  of PW1 that the deceased took his meals at  about 1030 a.m. and that the occurrence had taken at about 12-1230 in the noon cannot be taken to have been contradicted by the medical evidence. [856-B] 1.04. The first information report was lodged by PW1 at 3.00 p.m.  at  a  distance of about 13 miles from  the  place  of occurrence  and was therefore lodged with great  promptitude and  the entire version of the occurrence rinds  mention  in that report. [857-B] 1.05.  The  testimony of the PWs 1 and 2 has  impressed  the Court and 852 they  appear  to be truthful witnesses and being  the  close relations  or the deceased would, in the ordinary course  of things,  be the last person to screen the  actual  offenders and implicate the appellants falsely.  Their testimony  also receives  ample corroboration from the medical evidence  and the testimony of ballistic expert, PW11. [857 B-C] 1.06.     No suggestion even was made to anyone of the  PWs. 6,  7, 8, 10, 12 that the sealed packets had allegedly  been tampered  with while in their custody.  No  such  suggestion was  even  made to PW6 that he had  either  substituted  the carriages sent to the ballistic expert or otherwise tampered with  the  sealed packets.  There is no possibility  of  the substitution of the cartridges. [859-F] 1.07. Thus there are no suspicious features at all appearing in the evidence which may cast any doubt on the  prosecution version that the deceased was shot at with the pistol by the appellant  and that he died as a result of the  injuries  so received.  The prosecution had successfully established  the case against the appellant beyond any reasonable doubt. [858 H, 859 A]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 724  of 1985. From the Judgment and Order dated 21.8.1985 of the Rajasthan High Court in D.B. Criminal Appeal No. 494 of 1974. Mahabir Singh for the Appellant. Aruneshwar Gupta for the Respondent. The Judgment of the Court was delivered by DR.  ANAND, J. This appeal under Section 2(a) of the Supreme Court  (Enlargement of Appellate Jurisdiction) Act, 1970  is directed against the judgment and order of the High Court of Rajasthan  dated  21.8.1985 in Criminal  Appeal  No.494/1974 convicting the appellant for an offence under Section 302 of the  Indian  Penal  Code and sentencing him  to  suffer  im- prisonment  for life by reversing an order of his  acquittal recorded  by the Additional Sessions Judge, Ganganagar  vide judgment and order dated 13.2.1974. 853 According  to the prosecution case, Mani Ram  appellant  and his brother Hari Ram had removed the fencing over the  field of  Hazur  Singh  deceased about 20-22  days  prior  to  the

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occurrence,  which  took place on 22.6.1972 at  about  12.30 noon,  and that action of the appellant and his brother  had resulted  in a quarrel between the brothers and Hazur  Singh and  had created ill feelings between the parties.   On  the fateful  day of 22.6.1972, Hazur Singh deceased had gone  to his  field.  His wife Surjeet Kaur PW1 and his Son  Jaskaran PW2  later  on went to the field carrying  meals  for  Hazur Singh.  After, Hazur Singh had taken his meal, all the three were  returning  to their village from the  field  at  about 12.30  p.m.  Hazur  Singh  was ahead  of  Surjeet  Kaur  and Jaskaran  PWs by about one Kila.  When Hazur  Singh  reached near the water-course of the village, the appellant Mani Ram was seen coming from the village side.  He gave a  ’lalkara’ to Hazur Singh and immediately fired a shot from his  pistol at him.  His brother Hari Ram who was also armed with a  gun exhorted Mani Ram appellant to kill Hazur Singh so that  the enemy  may not escape.  Mani Ram thereupon fired three  more shots from his pistol at Hazur Singh, who fell down and died at  the  spot.   At some distance away,  Sukh  Ram  PW4  was present and he also witnessed the occurrence.  Surjeet  Kaur PW1 accompanied by Ganpatram went to police station Tibi and lodged  the first information report, Ex.P/1, at about  3.00 p.m. A case was accordingly registered and the investigating officer,  Nisar Ahmed, PW13, visited the spot.  He  prepared the site plan, the site inspector note and effected recovery of the empty cartridges vide memo Ex.P/6 from the spot.  The body  of the deceased was sent for port-mortem  examination, which  was  conducted by Dr. K.C. Mittal PW9.   The  autopsy report  was prepared.  The following injuries found  of  the dead-body of Hazur Singh deceased:               (i)Gun shot wound oval in shape with  inverted               margins, bleeding size 3/4" x 1/2" in the  mid               right hypochendrium wound is traced upward and               backward by the probe.  Shirt is torn over the               wound.               (ii)Gun shot would size 13/4" at the lower and               of the left side of chest in midaxillary size.               The  edges are inverted.  Wound  is  continued               downwards and posteriorly as he is  identified               by probe.  Shirt is torn.               (iii)  Gun shot wound with inverted  margin-,,               Size 3/4" x 854               1/2"  with ulterior medical size of lower  and               of  left  arm.   Little  bleeding.   Wound  is               printing  upward and posterior  through  bone.               Shirt over wound is torn.               (iv) Gun shot wound 1 1/4" x 2/4" with margins               averted  ragged  with severe bleeding  on  the               posterior  lateral size               of  the upper fifth of left arm.   Shirt  over               wound is torn.               (v)  Gun shot wound in  intra-scapular  region               right  side 1" x 1/4" x 3/4" circular  averted                             and tagged margins with severe bleeding.               (vi) Gun shot wound mid-back left side 11/2" x               1"  ragged  and averted  margins  with  severe               bleeding. According to the Doctor, the death was caused due to rupture of  vital  organs  like liver, lung and  big  blood  vessels causing  severe hemorrhage and shock as a result of the  gun shot  injuries and the same were sufficient in the  ordinary course  of nature to cause death.  After completion  of  the investigation, the appellant alongwith his brother Hari  Ram were sent up for trial.  While the appellant was charged for

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an  offence under Section 302 IPC, Hari Ram was charged  for the  offence under Section 302/114 IPC. Both, the  appellant and Hari Ram, were also charged for an offence under Section 27  of the Arms Act.  After the trial, the learned  Sessions Judge found that there was no case made out against Hari Ram at  all and that the prosecution had also not been  able  to prove  the  case against the appellant beyond  a  reasonable doubt.   As a consequence, both Hari Ram and  the  appellant were  acquitted of all the charges by the trial  court.   On the State filing an appeal against the judgment and order of acquittal passed by the Trial Court, the High Court  allowed the  appeal of the State in part and while it set aside  the acquittal of the appellant and convicted him for an  offence under   Section  302  IPC  and  sentenced  him   to   suffer imprisonment  for  life,  the  acquittal  of  Hari  Ram  was maintained.    While  the  State  has  not  questioned   the acquittal  of Hari Ram, the appellant, as  already  noticed, has filed this appeal. Mr.  Mahabir  Singh,  learned  counsel  for  the  appellant, submitted that the judgment of the Trial Court could neither be  styled  as perverse nor even as unreasonable  and  there were no other substantial and compelling reasons which could justify the setting aside of the order of acquittal and, 855 therefore, the High Court should not I have interfered  with the  order  of acquittal.  Learned counsel  urged  that  the presence  of undigested food in the stomach of the  deceased belied  the  prosecution case and that the Trial  Court  was right  in holding that Hazur Sigh Could not have  taken  the meals  at the time stated by his wife Surjeet Kaur  PW1  and his  son Jaskaran PW2 or murdered at 12.30 p.m. as  alleged. The learned counsel also submitted that the inordinate delay in sending the empty cartridges to the ballistic expert went to  show  that  the  possibility  that  the  same  had  been substituted  by the investigating agency could not be  ruled out  and  therefore the conviction of the appellant  by  the High Court was not justified. In  reply, Mr. Aruneshwar Gupta, learned  counsel  appearing for  the State of Rajasthan, submitted that since it was  an appeal under Section 2 of the Supreme Court (Enlargement  of Appellate  Jurisdiction) Act, 1970, this Court could  itself appreciate the evidence to determine the guilt or  otherwise of the appellant.  Learned counsel stated that the  findings recorded  by  the  Trial Court were based  on  surmises  and conjectures  and the High Court was perfectly  justified  in reversing   the   order  of  acquittal.    Learned   counsel emphasised  that  the evidence of PW1 Surjeet Kaur  and  PW4 Jaskaran  conclusively established that the crime  had  been committed by the appellant by his pistol and their testimony has received ample corroboration not only from the statement of  Dr. K.C. Mittal PW9 but also from the evidence  of  Shri G.R. Prasad PW11, the ballistic expert, who had opined  that the  four empty cartridges had been fired from the  licensed pistol  of the appellant and could not have been fired  from any other weapon.  Replying to the submission regarding  the presence of undigested food, learned counsel submitted  that being rustic villagers much importance could not be attached to  the time given by PW1 and PW2 during  their  depositions about  the  exact time when the deceased may  have  had  his meals  and therefore it could not be said that  the  medical evidence had in any way belied the prosecution case. We   have   given  our  thoughtful  consideration   to   the submissions made at the Bar and have with the assistance  of learned  counsel for the parties examined the  judgments  of the courts below as also the material evidence in the case.

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We are in agreement with the High Court that the evidence of PW1  Surjeet Kaur and PW2 Jaskaran has not been  viewed  and considered in 856 the  correct and proper prospective by the trial  court  and undue and unwarranted emphasis had been attached to  certain minor  discrepancies.   Our  independent  appraisal  of  the evidence  of both the witnesses PW1 and PW2, the  widow  and son of the deceased, shows that they are consistent in their versions  not only about the assailants but also  about  the manner of assault, as has been noticed by us in the  earlier part  of  this judgment.  Both the witnesses  have  given  a vivid  description of the occurrence.  The statement of  PWl Surjeet Kaur that Hazur Singh took his meals at about  10.30 a.m. and that the occurrence had taken at about 12- 12.30 in the  noon cannot be taken to have been contradicted  by  the medical  evidence.  Indeed, in the  postmortem  examination, Dr. K.C. Mittal PW9 found semi-solid undigested food in  the stomach of the deceased".  The doctor opined that  digestion begins  in 1 or 1 1/2 hours.  From this testimony, what  was sought  to  be  made out by the defence  was  that  had  the occurrence  taken  place at 12.30 noon, the  deceased  would have  had his meals before 11.00 a.m. as semi-digested  food was  found in the stomach of the deceased.  The emphasis  on this aspect of the case by the Trial Court, in our  opinion, is  misplaced not only because the medical evidence is  only an  evidence  of  opinion and is hardly  decisive  but  also because  when  Dr.  K.C. Mittal PW9  stated  that  digestion begins  in 1 or 1.1/2 hours, he did not clarify as  to  what was the extent of the undigested food in the stomach of  the deceased.   The  process  of  digestion  depends  upon   the digestive  power  of the an individual and  varies  from  an individual to an individual.  It also depends upon the  type and  amount  of  food taken.  The  period  of  digestion  is different  for different types of food.  Some food  articles like  mutton,  chicken etc. would take more time  for  being digested  as compared to vegetarian food.  No  questions  at all were asked from the wife of the deceased about the  type of food served to her husband or the amount of food taken by the deceased.  That apart, the time stated by the  witnesses as  to  when  the  deceased  took  his  food  was  only   an approximate  time as it was not even suggested to  PWl  that she  had a wrist watch and had actually seen the  time  when her  husband took his food.  Too much play on such  slippery factors goes against realism and is not enough to  discredit the  otherwise-reliable testimony of PW1.  In  our  opinion, the  evidence of PWs 1 and 2 does not stand contradicted  by the  medical  evidence at all and as a matter of  fact,  the presence of semi solid undigested food in the stomach  lends support of the testimony-of the two witnesses that they  had gone  to the field latter on with the food for the  deceased and had actually served meal to him.  It lends assurance  to their 857 presence  in  the  field with  the  deceased.   Despite  the lengthy  cross-examination  nothing was brought out  in  the cross-examination  of  either of these two  witnesses  which could  effect  the veracity of their testimony.   The  first information  report was lodged by Surjeet Kaur PWl  at  3.00 p.m.  at  a  distance of about 15 miles from  the  place  of occurrence  and was therefore lodged with great  promptitude and  the entire version of the occurrence finds  mention  in that  report.   The  testimony of  both  the  witnesses  has impressed us and they appear to us to be truthful  witnesses and being the close relations of the deceased would, in  the

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ordinary course of things, be the last persons to screen the actual offender and implicate the appellants falsely.  Their testimony also receives ample corroboration from the medical evidence  and  the testimony of ballistic expert  Shri  G.R. Prasad PWII. Dr.  Mittal PW9, as already noticed, found six  injuries  on the deceased and opined that the same were sufficient in the ordinary  course of nature to cause the death.  In  the  FIR Ex.   PI lodged soon after the occurrence PWI  Surjeet  Kaur had stated that Mani Ram appellant had fired 3-4 shots after he  had fired the first shot on her husband.  At the  trial, she however could not state exactly as to how many shots had been  fired  by the appellant from his pistol.  That  is  no surprising  because  she could not be expected  to  keep  an exact account of the shots fired by the appellant, when  she found her husband being shot at and having fallen down dead. She  categorically attributed the gun shot injuries  to  the appellant and did not attribute any injury to the  acquitted accused  Hari  Ram.   Since,  it has  been  found  that  the recovered  empties  had been fired from the  pistol  of  the appellant,  it  lends sufficient corroboration to  her  tes- timony.   We may ignore the testimony of Sukh Ram PW4  as  a matter  of  abundant caution but that would not in  any  way detract  from  the reliability of the testimony of  PWI  and PW2. The  pistol,  weapon of offence, was taken  into  possession from the appellant by PW6 SHO Bhim Singh.  It is a  licensed pistol  of  the  appellant.  According to  the  evidence  of ballistic expert PW11, the empty cartridges sent to him  for examination had been fired from that pistol and that  pistol alone  and  from no other similar weapon.   Of  course,  the sealed packets containing the pistol and the cartridges were sent  to  the ballistic expert after a long delay  and  that could  have  created some doubts about  the  possibility  of substitution  of the cartridges, while the packets  remained with the police but the evidence on the record rules out any possibility of such 858 a  substitution.  The three sealed packets, one,  containing pistol, the second, containing the empty cartridge recovered from  the  spot and the third, containing  the  three  empty cartridges  recovered  from  the  appellant  alongwith   the pistol,  were  deposited  in  the  malkhana  of  the  police station.  They had been received by Head Constable Mani  Ram PW10  on 23.6.1972, the very next day after the  occurrence. He had sent the same to the Police lines at Ganganagar.  The prosecution  examined  PW12 Amar Singh who had  carried  the three packets from the police-station to the police lines at Ganganagar.  He categorically stated that while the  packets remained with him, they were not tampered with at all.  PW10 Mani  Ram  also deposed that during the period,  the  sealed packets  remained  in the malkhana, they were  not  tampered with by anyone and that they were handed over to Amar  Singh PW12  in the same condition.  According to PW7 Ram  Chandra, he  received  the three packets from Amar  Singh  and  after taking  them into custody he made an entry in  the  register and  that while the packets remained in his custody,  nobody tampered with them.  The packets were sent to the  ballistic expert  and received there by Jaswant Singh PW8  and  Mamraj Singh.   Jaswant  Singh, appearing as PW8, deposed  that  he delivered  the packets to the ballistic expert on  the  very next day after receiving them and while the packets remained in his custody, nobody tampered with them.  According to the Ballistic  expert,  PW11, the packets when received  by  him were  properly sealed and the seals were intact and  tallied

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with  the specimen of the seal sent to him.  None  of  these witnesses  were at all cross-examined.  No  suggestion  even was  made  to  anyone of them that the  sealed  packets  had allegedly  been  tampered with while in their  custody.   No such suggestion was even made to SHO Bhim Singh PW6 that  he had either substituted the cartridges sent to the  ballistic expert  or other-wise tampered with the sealed packets.   It is, therefore, futile to contend that the possibility of the substitution  of  the  cartridges could not  be  ruled  out. There is no basis for such an argument.  The evidence of the ballistic  expert,  Shri  G.R. Prasad PW11,  read  with  the medical  evidence  of  PW9 and the  testimony  of  the  eye- witnesses PWs1 and 2 clearly establishes that the  appellant had fired from his licensed pistol at the deceased and  that the  deceased dies as a result of the pistol  shot  injuries received  by him.  We agree with learned Judge of  the  High Court that there are no suspicious features at all appearing in the evidence which may cast any doubt on the  prosecution version that the deceased was shot at with the pistol by the appellant  and that he died as a result of the  injuries  so received. 859 Thus, in view of what we have discussed above, we find  that the  prosecution  has  successfully  established  the   case against the appellant beyond any reasonable doubt and  since the  Trial Court had passed an order of acquittal on  wholly erroneous  grounds, the High Court after a proper  appraisal of  the  evidence was right in setting aside  the  order  of acquittal and convicting the appellant for an offence  under Section 302 IPC as well for an offence under Section 27 Arms Act.   Our  independent analysis of the evidence  on  record shows that the order of conviction and the sentence of  life imprisonment and two years rigorous imprisonment recorded by the  High Court against the appellant for the offence  under Sections  302  IPC  and 27 Arms  Act  respectively  is  well merited  and does not call for any interference.   Both  the sentences  shall, however, run concurrently.   Consequently, the  appeal  fails and is dismissed.  The  appellant  is  on bail.  His bail bonds shall stand cancelled and he shall  be taken  into  custody to suffer the remaining period  of  the sentence. V.P.R.                                     Appeal dismissed. 860