HARI RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal by the four accused persons is under S. 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. and Sessions Judge, Bikaner and convicted the appellants under Ss. 302/34 and sentenced them to imprisonment for life.

(2.) The prosecution case in nutshell is that on 12-7-1982 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 P.W. 14 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 P.W. 7 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 P.W. 7 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 analysed the evidence of the eye-witnesses P.Ws. 6, 7, 9 and 10 and was of the opinion that P.Ws. 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 P.Ws. 6 and 7 have really not seen the occurrence. The learned Sessions Judge also analysed the evidence of P.Ws. 9 and 10 and came to the conclusion that their evidence cannot be held to be trustworthy inasmuch as P.W. 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 P.Ws. 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. P.W. 6 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, illegally came to hold that P.Ws. 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 Ss. 302/34, I.P.C. and have been sentenced to imprisonment for life.

(3.) 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 P.Ws. 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 P.Ws. 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.