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PETITIONER: SMT. RUKMA & ORS.

       Vs.

RESPONDENT: JALA & ORS.

DATE OF JUDGMENT:       08/08/1997

BENCH: G. N. RAY, G. T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI, J.      The widows  of the  three victims,  who were alleged to have been  murdered by  respondent Nos. 1 to 8 (Accused 1 to 8), have  filed this appeal, by special leave of this Court, against the  judgment and  order of  acquittal passed by the High Court  of Rajasthan  (Jaipur Bench)  in B.  B. Criminal Appeal No.  444 of 1987. The State has not thought it fit to file appeal against the decision of the High Court.      On account of a dispute regarding land there was enmity between the  family of Anna Rawat of Village Masiniya in the District of  Ajmer with  the family  of Accused N, 1. It was the prosecution case that because of the enmity Accused Nos. 1 to  8 assaulted  Anna Rawat,  his bother  Kana,  his  sons Madhu, Arjun,  Mohan and  Sua one Punna and Ratna while they were returning  from their  fields to  the  village  in  the evening of  11.2.1986. They  were assaulted  while they were passing through  the Nalla situated near the field of Ganpat Chita. Vishnu (A-2) and Ratan (A-5) were armed with pharsis, Sardara (A-7)  was armed  with an  axe and others were armed with sticks.  Ratan  (A-5)  first  give  a  blow  with  this ’pharsi’ on  the head  of Anna  and Vishnu (A-2) gave a blow with ’pharsi’  on the waist of Anna. Ratna (A-5) then gave a blow with  ’pharsi’ on  the head of Kana. Sardara (A-7) gave an axe  blow on  the hand of Kana Vishnu (A-2) gave a pharsi blow on  the head  of  Madhu.  Thereafter  all  the  accused started beating other members of Anna’s party. On account of the injuries  caused to them Anna and Kana died on the spot. Madu died  while he  was being  taken to  the hospital. As a result of  the blows given by the accused, Sua (PW-1), Mohan (PW-2), Arjun (PW-7), Punna (PW-8) and Ratna (PW-9) received injuries.      In respect of this very incident vishnu (A-2) lodged an oral report  with the police at Kishanganj Police Station at about 9.00  P.M. In pursuance of that report Hardayal Singh, who was  incharge of  that Police  Station, went  to Village Masiniya. He  recorded the  complaint of Sua (PW-1) at about 11.00 P.M. The police first filed a charge sheet against A-1 to A-8  but after  making further  investigation they  filed another charge  sheet against  six  more  persons.  All  the

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fourteen accused  were committed  to the  court of Sessions. The learned  Sessions Judge  discharged the  accused against whom charge  sheet was  filed  later  as  he  did  not  find sufficient evidence  to proceed  against them.  The  learned Judge proceeded against A-1 to A-8 and convicted them mainly on the  basis of  the evidence  of Sua (PW-1), Mohan (PW-2), Arjun (PW-7), Punna (PW-6) and Rutna (PW-9). All the accused were convicted  under Section  302 read with Section 149 IPC for causing  the murders  of Anna,  Kana and  Madhu and also under Sections  323 and 324, both read with Sections 149 IPC for causing  injuries to  the  said  prosecution  witnesses. Vishnu (A-2),  Ratna  (A-5)  and  Sardara  (A-7)  were  also convicted under  Section 148 IPC and the rest were convicted under Section 147 IPC.      All the  eight accused  challenged their conviction and sentence by  filing Criminal  Appeal No.  444 of 1987 in the High Court  of Rajasthan.  The High Court on re-appreciation of the evidence found that:- 1.   the eye  witnesses had tried to suppress the genesis of      the incidence; 2.   the eye  witnesses had  falsely implicated  before  the      police 13  more persons,  as disclosed by the fact that      the police  did not  think it  fit to  file any  charge      sheet  against   all  of  them  and  six  accused  were      discharged by the Sessions Court; 3.   all the eye witnesses denied to have made statements on      28.3.1986 and  4.7.1986 with  reference to  which  they      were contradicted during their cross-examination; 4.   all the  eye witnesses  have made  similar improvements      while giving their evidence in the court; 5.   the eye  witnesses have falsely denied that the accused      had received any injury at their hands; 6.   the independent  eye witnesses Bholu (PW-4), Sayar (PW-      5), Bhura (PW-6) and Devi Singh (PW-13) did not support      the prosecution but supported the defence version; 7.   Balu (PW-3) and Bhoma (PW-10) who are the real brothers      of the  deceased Anna  and who had also claimed to have      seen the incidence did not support the prosecution.      Moreover, the  High Court  also sound  that  the  trial court had  committed a  grave error  of law  in relying upon only some portions of the statements of the accused recorded under Section  313 Cr.  P. C.  and ignoring  their remaining version  as   regards  the  circumstances  under  which  the incident had  happened and  they had  caused injuries to the deceased and  the members of this party and some of them had received injuries  a the  hands  of  the  deceased  and  the injured eye  witnesses. The  High Court  also found on close scrutiny of  the evidence  that the defence version was more probable than  the version  given by  the eye  witnesses. It held that  the prosecution  has failed to establish that A-1 to A-8  had committed the offences for which they were tried and convicted by the trial court. It, therefore, allowed the appeal, set  aside the  judgment  of  the  trial  court  and acquitted them.      Mr.  Sushil   Kumar  Jain,   learned  counsel  for  the appellants, very  strenuously urged  that the police had not conducted the  investigation fairly  and with a view to help the accused  false  statements  in  the  names  of  the  eye witnesses  were  recorded  on  28.3.1986  and  4.7.1986.  He submitted that  all the  eye witnesses  have denied  to have made the  statements which  they are alleged to have made on 28.3.1986 and  4.7.1986. They  were recorded  by the  police officers who  were not incharge of the investigation of this case. The  eye witnesses  were contradicted  with  reference case. The  eye witnesses were contradicted with reference to

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those statements  and some  of the  findings recorded by the High Court  are based  upon the  said contradictions and the inference drawn  therefrom. He  submitted that  if they  are ignored from consideration than the findings mentioned above at serial  numbers 2,  3 and  4 will  have to be regarded as unsustainable. He  also submitted  that the finding that the eye witnesses  had tried  to suppress  the  genesis  of  the incidence is  not at  all correct  as the eye witnesses have clearly deposed  about how  the incident stated and what was the cause  for the  same. He further submitted that as large number of persons were involved in the incident it was quite likely that  the eye  witnesses did not notice what injuries were caused on the persons of the accused. Anna and kana had fallen down  on the  ground after receiving serious injuries and therefore  it is  quite probable  that attention  of the remaining members  of the  party was  not drawn  towards the injuries received  by the  accused. Moreover,  the  injuries received by  Jala (A-1), Vishnu (A-2), Gopy (A-3), Ratan (A- 5), Laxman  (A-6) and  Sardara (A-7)  were  only  minor  and simple in nature. It was, therefore, submitted that the High Court committed  an error  in rejecting  the evidence of the eye witnesses  on the ground that they had failed to explain the injuries  on the  persons  of  the  accused.  He  lastly submitted that  the  fact  that  the  tow  brothers  of  the deceased and  independent eye  witnesses did not support the prosecution was  not at  all a  good ground for disbelieving the eye witnesses.      The investigation  pursuant to  the FIR  lodged by  Sua (PW-1) was  done by  Hardayal Singh  (PW-20). He has deposed about the  recording of  the statements  of the  prosecution witnesses between  11.2.1986 and  18.2.1986. In his evidence he has  further stated  that P.  D. Sharma, who was then the Additional  Superintendent  of  Police,  had  also  recorded statements of  some witnesses  in connection with this case. In his  cross-examination, he further stated that he did not know how  may police officers had conducted investigation in this case.  It appears  that the statements of the witnesses recorded on  28.3.1986 and  4.7.1986 were  not given  to the accused but  they came  to know  about them  after the trial began. Therefore, while the evidence of Sua (PW-1) was being recorded on  12.1.1987 an application was given on behalf of the accused  for summoning  the file  which contained  those statements. It  further appears  that in  view of  the  said application the  Public Prosecutor produced those statements from the  file of  another sessions  case against one Sohan. All the  eye witnesses  were contradicted  with reference to the statements  made on 28.3.1986 and 4.7.1986. Whereas some witnesses had  denied to  have made  any statement  on those others merely  denied that they had stated what was recorded therein. No  attempt  whatsoever  was  made  by  the  Public Prosecutor to  show that  those statements  were recorded by the  police  officers,  who  were  not  connected  with  the investigation of  this case  or that they were not correctly recorded. We  also find  from the  record that  an  advocate engaged by  the complainant’s party was assisting the Public Prosecutor while  the trial  was  going  on.  Therefore,  in absence of  any material  to indicate that the investigation was not fairly conducted the contentions raised on behalf of the appellants  that the  eye  witnesses  should  have  been believed when  they stated  that they  had  not  made  those statements, cannot  be accepted.  It is  significant to note that Mohan  (PW-2) admitted  in his  cross-examination  that police had  recorded his  statements three  times. The first statement was recorded at the site of the occurrence, second in Village  Masiniya and third a the police station. He also

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admitted that  the statements of Panna, Arjun, Sua and Rukma were also  recorded by  the police  though he  did not state specifically  that   their  statements  were  also  recorded thrice. If  that part  of his  evidence is read carefully it discloses that  the statements  of those witnesses were also recorded thrice.  In view of these admission it is difficult to believe  the say  of the  injured eye witnesses, and also accept  the  contention  of  the  learned  counsel  for  the appellants, that  they had  not given  statements either  on 28.3.1986 or  on 4.7.1986.  When Arjun (PW-7) was questioned regarding the  statement dated  28.3.1986  recorded  by  the additional Superintendent  of Police  he merely  stated that the did not remember whether it was recorded or not. for all these reasons  the contention  raised by  Mr. Jain  that two importance should be given to those contradiction which have been proved  on the  basis of  the  statements  recorded  on 28.3.1986 and  4.7.1986, cannot be accepted and no fault can be found  with the  findings recorded by the High Court that the eye  witnesses Sua,  Mohan, Panna,  Arjun and  Rukam had tried to  implicate some  innocent persons also and in order to  make   their  evidence  acceptable  by  court  had  made consistent improvements  while giving  their evidence in the court.      The fact  that as  many as  six  accused  had  received injuries during  the incident  cannot be disputed in view of the medical evidence on record. All the injuries received by Jala (A-1) and Vishnu (A-2) were not minor. Vishnu (A-2) had received a  lacerated wound  on his head. They were bleeding injuries. All  the  injured  eye  witnesses  who  were  with deceased Anna  have denied  to have caused any injury to any of the  accused. They  flatly denied  that they  had weapons with them  at the  time of  the  incident.  If  under  these circumstances the  High Court  thought it  fit not to place, any reliance  on Sua,  Mohan, Panna,  Arjun  and  Rukam,  it cannot be  said that  the High  Court was  not justified  in doing so.      We also  find that  the  accused  in  their  statements recorded under  Section 313 Cr. P. C. have clearly explained the injuries  caused on  the three deceased and have further explained how  the other  members of  Anna’s party  received injuries at  their hands. merely because the accused’s party received  less  injuries  and  the  party  of  the  deceased received more  serious injuries,  as a result of which three persons  died,   it  cannot  be  said  that  they  were  the aggressors. It  is quite likely as stated by them that  they did was  in exercise of their right of private defence. This is not  a case  where a large number of injuries were caused to the  deceased or to the injured witnesses. The High Court was, therefore,  right in  holding that  the defence version was more  probable than the version given by the prosecution witnesses Sua, Mohan, Punna, Arjun and Rukma.      We see  no substance  in this  appeal. Therefore,  this appeal is  dismissed and  bail  bonds  of  the  accused  are ordered to be cancelled.