G.P Mathur, J.— The State of Rajasthan has preferred this appeal by special leave against the judgment and order dated 31-1-1991 of Jaipur Bench of the High Court of Rajasthan by which the appeal preferred by the respondents against their conviction and sentence was allowed and they were acquitted. The learned Additional Sessions Judge, Kishangarh (Alwar) had convicted the respondents under Sections 148, 307, 302 and 448 IPC and had sentenced them to one year's RI, 7 years' RI and a fine of Rs 1000, imprisonment for life and a fine of Rs 100 and one month's RI respectively under each count. Respondent 1 Bhawani had been further convicted under Sections 3/25 of the Arms Act and had been sentenced to one year's RI and a fine of Rs 500.
2. According to the prosecution, the incident took place at about 5.30 p.m on 21-12-1985 in Village Bhajnawas when PW 1 Daya Ram was cutting fodder in his nohara. The respondents, Bhawani armed with a gun, Hari Singh armed with a country-made pistol and three others, namely, Kishanlal armed with a gun, Ramjilal armed with a pistol and Amilal armed with a country-made pistol suddenly came there and after giving abuses, started firing from their respective weapons. It is said that some other persons who were armed with lathis and farsis were standing outside the nohara. As a result of firing, two persons, namely, Deshraj and Hoshiar died on the spot and several others received gunshot injuries. An FIR of the incident was lodged by PW 1 Daya Ram, brother of Deshraj, the deceased, at 8.00 p.m on 21-12-1985 at PS Mundawar, which is 17 kilometres from the place of occurrence in which sixteen persons were named as accused. The motive for the assault is said to be a litigation regarding the nohara which was pending between the parties in the Court of SDM, Kishangarh. On the basis of the FIR, a case was registered and usual investigation followed. Three accused, namely, Kishanlal, Ramjilal and Amilal were not prosecuted as they had absconded. The prosecution, however, submitted the charge-sheet against thirty-five accused. The learned Additional Sessions Judge held that from the evidence on record it was proved beyond doubt that Bhawani, Hari Singh, Kishanlal, Ramjilal and Amilal had formed an unlawful assembly and in prosecution of their common object they had trespassed into the nohara and had caused the death of Deshraj and Hoshiar and gunshot injuries to others by firing at them. The remaining accused who were alleged to have been standing outside the nohara and were alleged to have been armed with lathis and farsis and had not been assigned any specific role of causing any injury to anyone, were acquitted. The respondents Bhawani and Hari Singh preferred an appeal against their conviction and sentence which has been allowed by the High Court by the judgment and order which is under challenge in the present appeal.
3. Before we deal with the submissions made by learned counsel for the parties, it will be advantageous to briefly take note of the evidence which has been adduced by the prosecution. PW 1 Daya Ram has stated that a litigation regarding the nohara was going on with Kishanlal (absconding accused) in the Court of SDM, Kishangarh, due to which the accused bore enmity with him. At about 5.30 p.m on the date of the incident, he was cutting fodder in the nohara, when Bhawani and Kishanlal armed with guns, Hari Singh and Amilal armed with country-made pistols, Ramjilal armed with a pistol and eleven other accused armed with lathis and farsis came there. Kishanlal gave abuses and thereafter all the five accused armed with firearms started firing from their respective weapons. Deshraj, Leela, Daulat, Ratan, Makhan and Babulal who were sitting in the baithak came outside, after hearing the abuses and sound of gunfire. The accused also fired upon them due to which they received gunshot injuries. The sound of gunfire also attracted Bholu, his wife Santosh and Hoshiar to the nohara, but they also fell victim to the shots fired by the accused and fell down after receiving injuries. The remaining eleven accused who were armed with lathis and farsis had surrounded the nohara and did not allow anyone to escape. Deshraj and Hoshiar died on the spot as a result of the injuries received by them. He has further stated that thereafter he went to Police Station Mundawar in the jeep of Babulal Vaidya, where he lodged a written report of the incident at 8.00 p.m Similar statements have been given by PW 5 Bholu Ram (brother of Hoshiar, the deceased), PW 6 Leela Ram, PW 10 Babulal, PW 11 Dhanni, PW 12 Lali, PW 13 Sajana, PW 14 Sarwan, PW 15 Patori, PW 16 Santosh and PW 17 Bharpai. Out of these eleven eyewitnesses PW 1, PW 5, PW 6, PW 10 and PW 16 had received gunshot injuries and are, therefore, injured witnesses. PW 26 Dr Srichand Sharma, who was posted at Public Health Centre, Mundawar, conducted the post-mortem examination on the bodies of deceased Deshraj and Hoshiar Singh on 22-12-1985. Deshraj had received twenty-two gunshot wounds on the chest 7″ in diameter, ten gunshot wounds on the abdomen, epigastric and umbilical region besides a number of gunshot wounds on the left forearm, right arm and face. The internal examination showed that the sternum and third, fourth, fifth and sixth ribs of both sides were fractured and pleura was perforated. Hoshiar Singh had sustained twelve gunshot wounds on the chest, central part 6″ in diameter, two gunshot wounds on the epigastric region, two gunshot wounds on right and left forearms. Sternum and third, fourth and fifth ribs of both sides were fractured and pleura was perforated. In the opinion of the doctor, the ante-mortem injuries sustained by both the deceased were sufficient in the ordinary course of nature to cause death. PW 21 Dr P.N Aggarwal, who was posted in General Hospital, Alwar on 22-12-1985, medically examined PW 1 Daya Ram and found gunshot injuries on his jaw, left side of neck, chest, shoulder and left arm. He also examined PW 10 Babulal and found gunshot injuries on his right hip, thigh and left hand. PW 23 Dr Gopal Maheshwari, who was posted as Medical Officer at Government Hospital, Kot Putli on 22-12-1985, medically examined PW 5 Bholu Ram, PW 6 Leela Ram, PW 7 Makhan Ram, PW 8 Daulat Ram, PW 9 Ratan Lal and PW 16 Santosh on that day and found gunshot injuries on their person. Leela Ram had sustained pellet injuries on chest, abdomen, chin and below right eye. Bholu Ram had sustained multiple pellet injuries on chest, abdomen, arms and thighs and Smt Santosh had sustained pellet injuries on abdomen and right axillary fold. PW 22 Mahesh Chand Dube was posted as Station House Officer at PS Mundawar on 21-12-1985. In his deposition, he has given details of the various steps taken by him during the course of investigation of the case.
4. PW 2 Raja Ram, PW 3 Babulal, PW 4 Ram Singh alias Radheyshyam, PW 7 Makhan, PW 8 Daulat Ram and PW 9 Ratan did not support the case of the prosecution and were accordingly, declared hostile.
5. Learned counsel for the appellant has submitted that the High Court has not properly appreciated the evidence adduced by the eyewitnesses and has completely ignored their testimony which fully established the prosecution case. He has urged that out of eleven eyewitnesses who supported the prosecution case in their statement in court, five were injured witnesses who had all received serious gunshot injuries and as such there could not even be the slightest doubt regarding their presence on the site. The remaining six eyewitnesses were also resident of the same place and their houses were nearby and, therefore, they were the best witnesses of the incident. However, the High Court chose to place reliance upon the testimony of some of the witnesses who had been won over and had turned hostile and on the basis of their statements has discarded the prosecution case. The learned counsel has further submitted that the High Court has discarded the testimony of the eyewitnesses relying upon inadmissible evidence and as such the judgment of acquittal recorded in favour of the respondents is wholly illegal and deserves to be set aside. Learned counsel for the accused-respondents has, on the other hand, submitted that the FIR of the incident was actually not lodged at 8.00 p.m on 21-12-1985 but was lodged much later and the same has been ante-timed. He has further submitted that the eyewitnesses examined by the prosecution were all related to the deceased and were, therefore, interested witnesses whose testimony could not be relied upon. He has also assailed the evidence adduced by the prosecution regarding recovery of the gun from the possession of Bhawani, accused which actually belonged to one of the accused himself. Lastly, he has urged that on the evidence available on record, two views were possible and since the High Court had, on appraisal of evidence, found the prosecution case to be doubtful, this Court should not interfere in an appeal against acquittal. In support of this submission, learned counsel has placed reliance on Ashok Kumar v. State of Rajasthan (1991) 1 SCC 166, AIR 1990 SC 2134, Arun Kumar v. State of U.P 1989 Supp (2) SCC 322 and Bharwad Jakshibhai Nagjibhai v. State of Gujarat (1995) 5 SCC 602.
6. We have considered the submissions made by the learned counsel for the parties and have gone through the entire evidence which is available on record. The judgment of the High Court, with all respects, is most cryptic and highly unsatisfactory. In a murder case based upon direct eyewitness account it is absolutely necessary to thoroughly examine the testimony of the eyewitnesses in order to ascertain whether they had really seen the occurrence and whether the statement given by them appears to be natural and truthful and finds corroboration from the medical evidence on record. In the present case eleven eyewitnesses have fully supported the prosecution case. Out of these eleven witnesses, five were injured witnesses who had received serious gunshot injuries. Their presence on the spot, therefore, cannot be doubted in any manner. These witnesses have consistently stated that five persons, namely, Bhawani, Hari Singh, Kishanlal, Ramjilal and Amilal came inside the nohara and repeatedly fired from the weapons which they were carrying. According to the eyewitness account Deshraj and Hoshiar received gunshot injuries and died on the spot. The injuries sustained by these persons have been proved by the statement of PW 26 Dr Srichand Sharma, who conducted the post-mortem examination on their bodies. Amongst the non-injured witnesses PW 11 Dhanni is the wife and PW 12 Lali is the daughter of Hoshiar, the deceased and there is no reason to doubt their presence on the spot. Similarly, PW 13 Sajana is the daughter and PW 14 Sarwan is the wife of Badlu and their presence on the place of occurrence cannot be doubted as their house is situated at the corner of the nohara. Their testimony finds complete corroboration from the medical evidence. In fact, the testimony of five injured witnesses is more than sufficient to establish the charge against the accused-respondents. However, the High Court did not at all advert to this important piece of evidence and has chosen to rely upon some trifling and insignificant circumstances to discard the prosecution case.
7. Chapter XXIX of the Code of Criminal Procedure deals with appeals and Section 385 deals with the procedure for hearing appeals not dismissed summarily and Section 386 deals with the power of the appellate court. The content and scope of these provisions was recently explained by a Bench to which two of us were parties in Amar Singh v. Balwinder Singh (2003) 2 SCC 518, JT (2003) 2 SC 1 and the relevant part of para 7 reads as under:
“7. … Section 385 CrPC lays down the procedure for hearing appeal not dismissed summarily and sub-section (2) thereof casts an obligation to send for the records of the case and to hear the parties. Section 386 CrPC lays down that after perusing such record and hearing the appellant or his pleader and the Public Prosecutor, the appellate court may, in an appeal from conviction, reverse the finding and sentence and acquit or discharge the accused or order him to be retried by a court of competent jurisdiction. It is, therefore, mandatory for the appellate court to peruse the record which will necessarily mean the statement of the witnesses. In a case based upon direct eyewitness account, the testimony of the eyewitnesses is of paramount importance and if the appellate court reverses the finding recorded by the trial court and acquits the accused without considering or examining the testimony of the eyewitnesses, it will be a clear infraction of Section 386 CrPC. In Biswanath Ghosh v. State of W.B (1987) 2 SCC 55, AIR 1987 SC 1155 it was held that where the High Court acquitted the accused in appeal against conviction without waiting for arrival of records from the Sessions Court and without perusing evidence adduced by the prosecution, there was a flagrant miscarriage of justice and the order of acquittal was liable to be set aside. It was further held that the fact that the Public Prosecutor conceded that there was no evidence, was not enough and the High Court had to satisfy itself upon perusal of the records that there was no reliable and credible evidence to warrant the conviction of the accused. In State of U.P v. Sahai (1982) 1 SCC 352, AIR 1981 SC 1442 it was observed that where the High Court has not cared to examine the details of the intrinsic merits of the evidence of the eyewitnesses and has rejected their evidence on general grounds, the order of acquittal passed by the High Court resulted in a gross and substantial miscarriage of justice so as to invoke extraordinary jurisdiction of Supreme Court under Article 136 of the Constitution.”
8. Since in the present case, the High Court has reversed the finding recorded by the trial court without considering and taking into account the testimony of the eyewitnesses, there is a clear infraction of Section 386 CrPC and the order of acquittal passed by it is likely to be set aside on account of this serious error.
9. Relying upon the testimony of PW 4 Ram Singh, PW 8 Daulat Ram and PW 9 Ratan, the High Court has held that there was crossfiring. These witnesses had not supported the prosecution case and had been declared hostile. PW 4 has stated that there was exchange of brickbats in which he also received some injury and accordingly, he took shelter inside a “chappar” and thereafter he heard two or three loud sounds like that of crackers. He further stated that he did not see any person firing from a gun or pistol. The High Court has misread his testimony while observing that the witness has stated that there was crossfiring. PW 8 Daulat Ram is a resident of Village Kalyanpur, Tahsil Behrod. He says that he had gone to Village Bhajnawas to purchase a bullock. Similarly, PW 9 Ram Ratan is a resident of Village Barod, Tahsil Behrod. Both of them do not belong to Village Bhajnawas and have clearly stated that they do not know or identify the accused-respondents Bhawani and Hari Singh and also the three absconding accused. These witnesses having stated that they do not know or identify the five accused who are alleged to have been armed with firearms and are alleged to have caused injuries to the injured and the deceased, their testimony to the effect that there was crossfiring is absolutely meaningless. Such a statement that there was crossfiring can only be given by a person who knows and identifies both the parties, namely, the accused and also the complainant party (the injured and the deceased). The High Court has placed great reliance upon the circumstance of crossfiring for doubting the prosecution case. The other reason given for acquitting the accused has, therefore, no basis at all.
10. The fact that the witness was declared hostile by the Court at the request of the prosecuting counsel and he was allowed to cross-examine the witness, no doubt furnishes no justification for rejecting en bloc the evidence of the witness. But the court has at least to be aware that prima facie, a witness who makes different statements at different times has no regard for truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to the same. The court should be slow to act on the testimony of such a witness and, normally, it should look for corroboration to his evidence. The High Court has accepted the testimony of the hostile witnesses as gospel truth for throwing overboard the prosecution case which had been fully established by the testimony of several eyewitnesses, which was of unimpeachable character. The approach of the High Court in dealing with the case, to say the least, is wholly fallacious.
11. The High Court has extensively relied upon the site plan prepared by the investigating officer for discarding the prosecution case and for this purpose has referred to the place from where the accused are alleged to have entered the nohara, the place from where they are alleged to have fired upon the deceased and also has drawn an inference that the place wherefrom the accused are alleged to have fired upon the deceased, the shot could not have hit the houses on the eastern side of the nohara. Many things mentioned in the site plan have been noted by the investigating officer on the basis of the statements given by the witnesses. Obviously, the place from where the accused entered the nohara and the place from where they resorted to firing is based upon the statement of the witnesses. These are clearly hit by Section 162 CrPC. What the investigating officer personally saw and noted alone would be admissible. This legal position was explained in Tori Singh v. State of U.P AIR 1962 SC 399, (1962) 1 Cri LJ 469 in the following words: (AIR p. 401, paras 7-8)
A rough sketch map prepared by the Sub-Inspector on the basis of statements made to him by witnesses during the course of investigation and showing the place where the deceased was hit and also the places where the witnesses were at the time of the incident would not be admissible in evidence in view of the provisions of Section 162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the Sub-Inspector that the eyewitnesses told him that the deceased was at such and such place at the time when he was hit. The sketch map would be admissible so far as it indicates all that the Sub-Inspector saw himself at the spot; but any mark put on the sketch map based on the statements made by the witnesses to the Sub-Inspector would be inadmissible in view of the clear provisions of Section 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during investigation. Therefore, such marks on the map cannot be used to found any argument as to the improbability of the deceased being hit on that part of the body where he was actually injured, if he was standing at the spot marked on the sketch map.
12. Therefore, the findings recorded by the High Court on the basis of the site plan prepared by the investigating officer whereby it discarded the prosecution case is clearly illegal being based upon inadmissible evidence and has to be set aside.
13. The High Court has also relied upon some very trifling and insignificant matters like recovery of some live and empty cartridges which the counsel for the accused before it submitted to be that of a .303 bore revolver or gun. Relying upon this recovery, it has been held that as according to the eyewitnesses none of the accused had a .303 revolver or gun, the prosecution case was rendered doubtful. The eyewitnesses have consistently deposed that Hari Singh and Amilal, accused were armed with country-made pistols and in such cases it is difficult to visualize what was the nature of the cartridges or bullets used. Therefore, even assuming that some empty cartridges of .303 bore were recovered, it could not affect the prosecution case in any manner.
14. Having given our careful consideration to the material on record, we are clearly of the opinion that the prosecution had succeeded in establishing its case against the accused-respondents beyond any shadow of doubt and the learned Additional Sessions Judge had rightly convicted and sentenced them. The judgment of the High Court, in our opinion, is wholly illegal and perverse. It is not a case where two views are possible. In fact, on the evidence available on record, the only conclusion which can be drawn is that the prosecution had succeeded in establishing its case beyond any shadow of doubt and the accused-respondents are clearly guilty of the charges levelled against them.
15. In the result, the appeal is allowed and the judgment and order dated 31-1-1991 of the High Court is set aside and that of the Additional Sessions Judge is restored. The accused-respondents shall undergo the sentence imposed upon them. The CJM concerned shall take all steps available in law to take the accused-respondents in custody.