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CASE NO.: Appeal (crl.)  1672 of 2005

PETITIONER: Rattanlal

RESPONDENT: State of Jammu & Kashmir

DATE OF JUDGMENT: 10/04/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

S.B. SINHA, J :                  This appeal is directed against a judgment and order dated 16.09.2005  passed by a Division Bench of the High Court of Jammu & Kashmir in  Acquittal Appeal No. 41 of 1997 reversing an order of acquittal passed by  the  2nd Additional Sessions Judge , Jammu in Sessions case No. 42 of 1993.

       The occurrence took place on 09.02.1993 at Village Rakh Muthi,  Tehsil Akhnoor.  The first informant and his family were about to take their  dinner.  Allegedly, the complainant party and the accused persons were not  in talking terms as the family was said to have been responsible for  spreading a rumour in the village that Appellant was maintaining illicit  relation with the wife of his brother Kaku Ram.  Appellant, Kaku Ram and  their father Sunderdas allegedly came to the house of the complainant at  08.30 p.m. on the fateful day.  Allegedly, Rattanlal asked PW-Subhash  Chander, son of the deceased Santosh Kumar, to come out stating that Kaku  Ram was calling him.  Subhash Chander thereupon came out followed by  the complainant Pamma Ram,  deceased Santosh Kumar and PW-Ramesh  Chander.  Allegedly, when Subhash Chander reached the lane, Kaku Ram  asked him as to why he had been creating problems and inflicted a drat blow  on his forehead.  Santosh Kumar (deceased) allegedly came forward to  rescue his son, whereupon Sunderdas exhorted Rattanlal (Appellant herein)  to kill him who in turn was said to have given a khukhri blow on him.  A  lathi blow was also said to have been inflicted on Ramesh Chandra by  Sunderdas.  An oral report was made to the Police Post Jurian at about 09.30  p.m., which was recorded as DDR No. 16, copy of which was sent to Police  Station Akhnoor, whereupon a First Information Report under Section  307/34 RPC and 4/27 LA.A. was lodged on 10.02.1993.  The deceased and  the injured were medically examined and were thereafter referred to Sub  District Hospital Akhnoor, wherefrom the deceased and Subhash Chander  were further referred to SMGS Hospital, Jammu for treatment.  Santosh  Kumar succumbed to his injuries at the said hospital.   

       The prosecution in support of its case examined a large number of  witnesses. The learned Trial Judge, however, recorded a judgment of  acquittal raising a number of doubts not only in regard to availability of  sufficient light to identify the accused, but also having regard to the grave  inconsistencies in the depositions of the witnesses, inconsistencies in the  evidences of two medical experts in regard to number, nature and  place of  injuries, inconsistencies in regard to the place of occurrence and non- examination of the investigating officer.  

       The High Court on an appeal preferred thereagainst, as noticed  hereinbefore, reversed the said judgment, opining that prosecution has led  sufficient evidence establishing the charges against Appellant.

       The High Court, however, while holding the appellant guilty under

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Section 302 R.P.C., held accused Kaku Ram to be guilty only under Section  324 R.P.C. and sentenced him to undergo rigorous imprisonment for two  years, whereas Sunderdas was found guilty under Section 323 R.P.C. for  causing simple injury to PW-Ramesh Chander and sentenced him to undergo  imprisonment for six months.

       Sunderdas and Kaku Ram are not before us.

       Mr. T.N. Razdan, the learned counsel appearing on behalf of  Appellant, submitted that the High Court committed a manifest error  in  passing the impugned judgment insofar it  failed to take into consideration  all the findings of the learned Trial Judge and without arriving at a  conclusion that its findings were perverse.  The learned counsel would  submit that it is now well-settled that if two views are possible, the judgment  of acquittal should not be interfered with.  

       Mr. Anis Suhrawady, the learned counsel appearing on behalf of  Respondent, on the other hand, would support the impugned judgment.   

       First Information Report, according to the prosecution, was recorded   at 09.30 p.m. on the same day.  The Investigating Officer, allegedly also  recorded the statement of the first informant on the said day.  There appears  to be some inconsistencies in this behalf as PW-Dhano Devi stated :

"\005Police had come second day to inquire from me.   Police took my statement at home.  In my presence police  recorded only my statement.  Police on its own had  received the information of occurrence.  On second day  police had come at around 11 o’ clock.  I do not know  whether police had come on the day of occurrence\005"   

       The High Court, however, proceeded on the premise that it was the  police personnel, who had referred the injured persons for treatment to  Preliminary Health Centre, Jurian, which does not appear to be the  prosecution case.

       PW-Dhano Devi furthermore resiled from her own statements made  under Section 161 of the Code of Criminal Procedure to state in her  deposition  :

"\005In my statement under section 161 Cr.PC where it is  recorded that "my husband Pamma Ram went to police  Jourian to give information" is wrong.  Instead my  husband went next day to police station to report\005"   

       However, PW-Ramesh Chander in his deposition  stated :

"\005The Khairati Lal took me, my father and Subash on  cart to Jurian hospital.  We were treated there.  On  second day of occurrence my father Santosh Kumar  breathed last.  Accused family were not on talking terms  with our family and had no ill will\005"                          PW-Vijay Kumar also stated in his deposition that Kaku Ram and  Khairati Lal witnessed the occurrence and were taken to hospital.  

       To the same extent is the evidence of PW-Subash Chander, which is  in the following terms :

"\005Thereafter Dundu Ram and Khairati Lal came on spot  who lifted us all and took to home.  And took me and my  father to hospital Jourian.  Me and my father were  admitted in hospital.   I was stitched.  Jourian hospital  sent us to Akhnoor Hospital and Akhnoor hospital  referred us to Jammu hospital.  I remained in Jammu

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hospital for one and quarter month\005"

       The Assistant Sub Inspector Mohan Lal, in his deposition stated that  the injured had already reached hospital 10-15 minutes prior to his arrival  there.   

       In regard to the arrest of the accused also, there appears to be some  inconsistencies.  Whereas the High Court proceeded on the basis that  Sunderdas and Appellant were arrested on 11.02.1993 and Kaku Ram could  not be arrested as he had gone back to his unit, ASI Mohan Lal in his  evidence stated that he not only reached the place of occurrence and  preserved blood at the place of occurrence, but also interrogated the accused;  whereas according to Constable Kewal Krishan all the accused were in their  house at 02.30 p.m. next day and they were in four in number.  The  prosecution has not been able to establish as to who the fourth accused was.   

       The learned Trial Judge had raised doubts in regard to  the recovery of  weapons of the offence.  According to the prosecution, witnesses Ramesh  Chander and Vijay Kumar the police had come to the spot on the next day  and seized the weapons of offence, whereas the recovery was shown to have  taken place on the next day i.e. only after the accused were taken in custody.   Even no nexus was shown as to whether the weapons seized had been used  for commission of the crime or not.

       The learned Trial Judge disbelieved Vijay Kumar and Dhano Devi as  being eye-witnesses to the occurrence.  The High Court held them to be so.   According to Vijay Kumar, the occurrence was witnessed by Kaku Ram and  Khairatilal.  According to him, they came to the place of occurrence at a  later stage.  If their evidence is taken at its face value, they came to the place  of occurrence even before PW-Subash Chander came out from his house.   The learned Trial Judge laid emphasis on the fact that there was total  darkness.  It was so said also by Khairatilal.  He also said that electricity  light was only in his house and not outside.  According to Subhash Chander,  he became unconscious on receiving the assault.  The High Court did not  rely on that part of his evidence as the said witness categorically stated that  he did not know as to how the occurrence took place.   

       It is unfortunate that the High Court in its judgment has considered  only the statements made by the witnesses Subhash Chander, Vijay Kumar,  Ramesh Chander and  Dhano Devi  and the statements of  Khairati Lal and  Dundu Ram in their examination-in-chief and their cross-examination.   The  glaring inconsistencies between the evidences of the witnesses, as has been  recorded by the learned Trial Judge, had also not been taken note of by the  High Court.  The High Court also did not meet the reasonings of the learned  Trial Judge.

       Presence of Vijay Kumar and Dhano Devi at the place of occurrence  was found to be doubtful by the learned Trial Judge, inter alia, on the  premise that their names had not figured in the oral report lodged by Pamma  Ram.  Whereas PW-Subhash Chander posed himself to be an eye-witness to  the alleged assault on his brother Ramesh Chander, according to the latter  only after hearing hue and cry raised by his mother and brother, he  came to  the place of occurrence.

       Khairatilal, who was to said to be the first person to arrive at the place  of occurrence,  was declared hostile.  Although Kaku Ram was not declared  hostile but the prosecution had only put questions in regard to the seizure of  the blood stained earth and nothing more.  According to Dhano Devi apart  from Khairatilal, Suraj Prakash and Gopal came on the spot.  Why they had  not been examined remained unexplained.  In regard to PW-Dhonda Ram,  the High Court recorded :

       "PW Dhonda Ram is another eye witnesses who  was living in the same  vicinity where the occurrence

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took place, has stated that at 8 p.m. he was in his house,  accused Rattan had gone to the house of Subash Chander  and told him that he was being called by Kaku foji.   When Subhash reached near the gate, Sunderdas and  Kaku accused were standing in front of them.  When  Subahsh reached there accused sunder declared as to  what they were looking for, whereupon accused Kaku  inflicted a Drat blow on the heath of Santosh and Rattan  inflicted a blow with khokhri on Subash causing injury  on his forehead.  On being cross-examined he reiterated  that the accused Kaku had inflicted the injury with a Dah  upon Santosh Kumar and while standing in front of  Santosh Kumar he and Pamma Ram were first to reach  the spot.  From the evidence of PW Dhonda Ram it is  thus manifest that he has given a description contrary to  the case of the prosecution."

       According to the said witness, it was Kaku Ram who inflicted  the  ’drat’ blow on the deceased and not the Appellant.  He has, thus, changed  the name of the assailant as also the weapon of offence.  The findings of the  High Court are without any reason.  There is no discussion as to why the  defence would not be entitled to take the benefit of his statement, who was  not even declared hostile.   

       Dhano Devi also in her evidence alleged that Appellant had hit  Santosh Kumar (deceased) with khukhri, whereas accused Sunderdas  inflicted a lathi blow on him.   

       The learned Trial Judge in his judgment opined that :  

(i)     the evidence of the prosecution witnesses that they were witnesses to          the occurrence is not correct and, thus, it would be unsafe to believe          any of them. Even Ramesh Chander had not supported the case that          the accused persons had made a joint assault upon deceased Santosh          Kumar and PW Subash Chander.   (ii)    It remained unexplained as to how deceased Santosh Kumar reached          the spot earlier than PW-Ramesh Chander or during the occurrence;  (iii)   Ramesh Chander did not make any attempt to rescue his brother          Subash Chander, which was unnatural;  (iv)    If PW-Vijay Kuamr is to be believed, the same stands contradicted by          Ramesh Chander.  Both of them contradicted each other in the manner          in which the assault took place.  PW-Vijay Kumar nowhere stated that          that PW-Ramesh Chander, Dhano Devi or Pushpa Devi were present          at the spot.  On the other hand, they stated that they had come          thereafter.  

       The learned Trial Judge also raised a doubt in regard to the  availability of sufficient light at the place of occurrence.  A great deal of  emphasis was laid in regard to the major contradictions on  materials  brought on record between the ocular and medical evidence. The learned  Trial Judge relied upon evidence of Dr. R.K. Gupta.  The  contradictions in  the   medical  report  are  evident  from  the  following observations of the  learned Trial Judge :

       "PW Dr. R.K. Gupta has stated that on 9.2.1993 he  examined deceased Santosh Kumar at 9.30 p.m. at PHC  Jordian and found the following injury :

1)      An incised wound on the head parietal  region 4’x3x1/2’ bleeding present vertically  placed.  Oozing of blood from parietal region  multiple lacerations.

Whereas PW Dr. Anayat Ullah Sheikh Assistant

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Professor Medical College, who conducted the autopsy  on the dead body of Santosh Kumar found the following  injuries :

       1. A 2cm abrasion with fresh scab on the nose in          its upper third region with fracture of the bones          underneath;

       2. A   lacerated  wound  on   the   occipital   region           with extra vacation of blood on the occipital region          of scalp.  =’ diameter depressed fracture of          occipital bone."  

       In the post-mortem certificate, Injury No. 2 was shown to be 1="  depressed fracture of bones.  Dr. R.K. Gupta had not given any opinion to the  police in regard thereto.  He could not say as to the said injury could have been  caused by the assailant upon the deceased with what type of weapon. The  ’Khukhri’ was shown to him to which he stated that injury could be caused by it,  whereas Dr. Inayat Ullah Sheikh categorically stated that injury no. 2 could only  be possible by using a blunt object with a striking surface in the measurement of  ="  in diameter e.g. hammer.  In regard to injury no. 1, his opinion was that the  same could be possible by a fall or striking on  hard surface.

       The learned Trial Judge also took serious note of the fact that report of the  X-Ray taken by the Radiologist had not been brought on records.  Even the sky- gram of the deceased had not been produced.  The court, thus, was deprived of an  opportunity from considering a part of the medical evidence.  An adverse  inference was rightly drawn by the learned judge as no explanation was therefor  was offered.  The learned Trial Judge furthermore wondered as regards the truth  in the prosecution case as disclosed by one of the prosecution witnesses, namely,  Harbans Lal, who had  stated that son of deceased had informed him that he was  assaulted by someone.  If the prosecution case is to be accepted, the names of the  assailants were known to the deceased as also his son.  No independent witnesses  like Numberdar and Chowkidar was examined to prove disclosure statement of  the accused persons and consequent recovery of the weapons of the offence.  The  learned Trial Judge furthermore noticed that non-examination of the Investigating  Officer had seriously prejudiced the defence.

       In Samghaji Hariba Patil v. State of Karnataka [(2006) 10 SCC 494], this   Court held  :

"We have noticed hereinbefore that the High Court  has taken a contrary view.  Had the High Court been the  first court, probably its view could have been upheld, but  it was dealing with a judgment of acquittal.  We have  taken notice of the depositions of the main prosecution  witnesses only to show that the view of the learned Trial  Judge cannot be said to be perverse or the same was not  possible to be taken.  While dealing with a case of  acquittal, it is well known, the High Court shall not  ordinarily overturn a judgment if two views are  possible\005"

[See also Kallu alias Masih and Others v. State of M.P. (2006) 10 SCC 313;   Chandrappa & Others v. State of Karnataka 2007 (3) SCALE 90; and Swami  Prasad v. State of Madhya Pradesh \026 2007 (4) SCALE 181- Paras 26 and 27].

       We, therefore, are of the opinion that the judgment of the learned Judge  cannot be said to be a view which was not possible to be taken.           Unfortunately, all these aspects of the matter had not been considered by  the High Court in their proper perspective.   

       We, therefore, are of the opinion that the impugned judgment cannot be

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sustained, which is set aside accordingly.  The appeal is allowed.  Appellant shall   be released forthwith, if not required in any other case.