Full Judgment Text
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CASE NO.:
Appeal (crl.) 666 1991
PETITIONER:
STATE OF RAJASTHAN
Vs.
RESPONDENT:
HANUMAN
DATE OF JUDGMENT: 04/12/2000
BENCH:
S.S.M.Quadri, D.P.Mohapatro
JUDGMENT:
L.....I.........T.......T.......T.......T.......T.......T..J
J U D G M E N T
D.P.MOHAPATRA,J.
This appeal filed by the State of Rajasthan is
directed against the judgment of the High Court of Rajasthan
in Criminal Appeal No.147/85 acquitting the
respondent-Hanuman of the charge under Section 302 IPC on
setting aside the judgment and order of conviction passed by
the learned Sessions Judge, Ajmer, in Sessions Case
No.49/1983.
Shorn of unnecessary details the prosecution case may
be stated thus :@@
JJJJJJ
On 9.10.1982 at about 6.00 p.m. when Panchu the
deceased tried to draw water from the common well to
irrigate his lands and change the course of the water
towards his fields the respondent-Hanuman and co-accused
Ganesh and Ram Kumar forbade him from doing so. Ganesh
caught hold of Panchu and Hanuman gave three blows on his
head with an axe held by him. When Smt. Badam, wife of
Panchu and his sister Chhoti intervened to save him from the
assault of Hanuman, Ram Kumar assaulted them with a Kassi.
On hearing the cry of Chhoti, Arjun came to the spot from
the field nearby and on seeing him the accused persons fled
away. Chhoti immediately rushed home and reported the
incident to her brother Balu who on reaching the spot found
Panchu lying on the ground with serious head injury. He
took Panchu home in a cart and from there he was taken to
the government hospital at Kishangarh where the doctors
declared him dead. Smt. Badam and Chhoti who had also
sustained injuries, accompanied Panchu to the hospital.
They were examined by Dr.C.L.Sharma (PW 5) who also
conducted the autopsy on Panchu. Balu lodged the FIR in
Kishangarh Police Station at about 10.00 p.m. on 9.10.82.
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The Police sprung into action, conducted investigation and
on completion of the investigation chargesheet was submitted
under Section 302, read with Section 34, and Sections 323
and 324 against Hanuman, Ganesh and Ram Kumar. The accused
persons having denied the charges faced trial. The
prosecution examined in all 12 witnesses including Chhoti
PW-1 and Smt. Badam PW-2, who are the eye-witnesses to the
occurrence, Balu PW-3 and Arjun PW-6 who are post occurrence
witnesses, Dr.C.L.Sharma, PW-5, who conducted the
post-mortem examination and Dayal Singh PW-10, and the
Investigating Officer. The learned Sessions Judge on
appreciation of the evidence accepted the ocular of PWs 1 &
2 which was corroborated by the medical evidence and
convicted Hanuman, the respondent herein, under Section 302
IPC and sentenced him to life imprisonment and a fine of
Rs.1,000/-, acquitted accused Ram Kumar of the charge under
Section 302 read with Section 34 IPC but held him guilty
under Sections 323 and 324 IPC and gave him benefit of
Section 4(1) of the Probation of Offenders Act subject to
the condition that he produces one surety of Rs.1,000/- and
one more surety with the condition that he will maintain
good conduct for a period of one year and will not disturb
the
peace and will present himself for suffering the
punishment whenever required. Accused Ganesh was acquitted
of all the charges framed against him.
Against the judgment of the learned Sessions Judge
accused Hanuman filed the appeal in High Court which was
disposed of by the impugned judgment in the manner noted
earlier.
The High Court set aside the judgment of the learned
Sessions Judge on two grounds - that both the eye-witnesses
PWs 1 and 2 are highly interested persons and since their
evidence is in direct conflict with the medical evidence the
same cannot be relied upon, and that the prosecution has not
explained the injuries found on the accused persons.
We have carefully perused the judgments passed by the
learned Sessions Judge and by the High Court. We are of the
view that both the reasons stated by the High Court in the
impugned judgment are unsustainable. The position is well
settled that evidence of eye- witnesses cannot be discarded
merely on the ground that they are relatives of the
deceased. Normally close relations of the deceased are not
likely to falsely implicate a person in the incident leading
to the death of the relation unless there are very strong
and cogent reasons to accept such criticism. Further, from
the testimony of the two ladies Smt. Badam and Chhoti whose
presence at the spot was not disputed by the defence it is
clear that they have described the incident in a clear and
graphic manner. They have categorically asserted that
respondent- Hanuman gave three blows with his axe on the
head of Panchu. Though the witnesses were subject to
searching cross-examination nothing material could be
elicited from them which may cast a doubt on their
credibility. The learned trial judge who had the
opportunity of marking their demeanor in the Court assessed
their evidence and did not find any good reason to discard
their testimony. In the circumstance the High Court
committed an error in discarding their testimony on this
ground.
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The other question that arises is whether the ocular
evidence of PWs 1 and 2 is against the medical evidence in
the case. The High Court has answered the question in the
affirmative going by the statement of the two eye-witnesses
that Hanuman gave three blows on the head of the deceased
Panchu with the axe but the Doctor PW-5 found only one
injury on the head of the deceased. PW-5 found the
following injuries on the deceased :
"i) Lacerated wound of cmx2.5 cm bone deep on the
occipital region at skull in oblique direction with multiple
fractures of occipital bone in small pieces with a cut of 2
cm long on skull. Small portion of brain was also seen.
ii) The small abraisions on left side of forehead over
an area of 4 cm x 4 cm;
iii) Abraisions 1.5 cm x 1 cm on the roof of nose.
All the above injuries were ante-mortem in nature. As per
external injury with little clot under the scalp there were
multiple fracture of occipital bone. There was laceration
of memberance under the injury no.1. There was a laceraton
4 cm x 2cmx2cm on brain in occipital region just below
injury no.1 with a blood clot. The cause of death was shock
due to severe haemorrahage from laceration of brain and
multiple fracture of occipital bone. The above injuries
were inflicted by blunt weapon. These injuries could be
inflicted by blunt side of a spade or an axe. Injury no.1
was sufficient in the ordinary nature to cause death."
From the evidence of PW-5 it is clear that the injury
found on the head of the deceased was possible if the blow
was struck with the blunt side of the axe and the said
injury was sufficient in ordinary course to cause death.
The learned Sessions Judge adverting to the contention of
the defence regarding improbability of the version of the
eye-witnesses observed that their statement to the effect
that three blows with the axe dealt on the head of the
deceased cannot be correct and it appears that only a single
blow was given on the head. It is relevant to note here
that other injuries have also been found by the doctor on
the face and shoulder of the deceased. Reading the
statement of the eye-witnesses and the evidence of the
doctor we do not find any serious contradiction between the
two which may form the basis for discarding the testimony of
the eye-witnesses. The High Court, in our view, was clearly
in error in rejecting the ocular evidence on that ground.
Coming to the other reason stated in the judgment
under challenge that the prosecution has not explained the
injuries found on the respondent-Hanuman the learned trial
judge had considered this question. The High Court did not
accept the contention of the prosecution that there is no
acceptable evidence to show that Hanuman suffered the said
injuries in course of the incident giving rise to the
criminal case and also that the injuries are minor in
nature.
The High Court did not deal with the reasons given by
the trial court before casting a doubt on the prosecution
case making a general observation that it has not explained
the injuries found on the respondent-Hanuman. The
prosecution is not bound to explain injuries found on the
accused in all cases. It is to be kept in mind that
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according to the defence case the occurrence took place when
the respondent-Hanuman wanted to use the facility of drawing
water from the tube-well when his turn came at 6.00 p.m. on
the fateful day, then Panchu assaulted him with a lathi
whereafter Hanuman in his defence pushed him and Panchu fell
on the ground hitting a stone which resulted in the head
injury supplied by him. It was the further case of the
defence that the two ladies PWs 1 and 2 pelted stones on the
accused persons causing injuries to them. The learned trial
judge on discussion of the evidence of the witnesses
examined on behalf of the defence had discarded the defence
version. The High Court has neither discussed the evidence
of the defence witnesses nor given any reason for not
accepting the finding of the trial court in this regard, but
merely observed that the prosecution having failed to
explain the injuries on the respondent-Hanuman, its case
cannot be accepted. No doubt the appellate court should
assess the evidence on record with a view to satisfy itself
that the appreciation of evidence by the trial court is not
vitiated on account of any erroneous approach or illegality
and it is not palpably erroneous. The sustainability of the
judgment depends on the soundness of the reasons given in
support of the findings and the conclusion. On the
discussions and for the reasons stated in the foregoing
paragraphs the appeal is allowed, impugned judgment is set
aside and the judgment of the trial court convicting
respondent-Hanuman under Section 302 IPC and sentencing him
to undergo rigorous imprisonment for life and a fine of
Rs.1,000/- is restored.