S.B Sinha, J.— This appeal is directed against a judgment and order dated 16-9-2005 passed by a Division Bench of the High Court of Jammu and Kashmir in Acquittal Appeal No. 41 of 1997 reversing an order of acquittal passed by the Second Additional Sessions Judge, Jammu in Sessions Case No. 42 of 1993.
2. The occurrence took place on 9-2-1993 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 on talking terms as the family was said to have been responsible for spreading a rumour in the village that the appellant was maintaining illicit relation with the wife of his brother Kaku Ram. The appellant, Kaku Ram and their father Sunderdas allegedly came to the house of the complainant at 8.30 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 (the deceased) allegedly came forward to rescue his son, whereupon Sunderdas exhorted Rattanlal (the 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 Police Post Jurian at about 9.30 p.m, which was recorded as DDR No. 16, copy of which was sent to Police Station Akhnoor, whereupon a first information report under Sections 307/34 RPC and Sections 4/27 LAA was lodged on 10-2-1993. 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.
3. 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.
4. The High Court on an appeal preferred thereagainst, as noticed hereinbefore, reversed the said judgment, opining that the prosecution has led sufficient evidence establishing the charges against the appellant.
5. The High Court, however, while holding the appellant guilty under Section 302 RPC, held accused Kaku Ram to be guilty only under Section 324 RPC and sentenced him to undergo rigorous imprisonment for two years, whereas Sunderdas was found guilty under Section 323 RPC for causing simple injury to PW Ramesh Chander and sentenced him to undergo imprisonment for six months.
6. Sunderdas and Kaku Ram are not before us.
7. Mr T.N Razdan, the learned counsel appearing on behalf of the 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.
8. Mr Anis Suhrawardy, the learned counsel appearing on behalf of the respondent, on the other hand, would support the impugned judgment.
9. A first information report, according to the prosecution, was recorded at 9.30 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:
“… Police 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….”
10. 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.
11. PW Dhano Devi furthermore resiled from her own statements made under Section 161 of the Code of Criminal Procedure to state in her deposition:
“… In my statement under Section 161 CrPC where it is recorded that ‘my husband Pamma Ram went to Police, Jurian to give information is wrong. Instead my husband went next day to police station to report….”
However, PW Ramesh Chander in his deposition stated:
“… Khairati Lal took me, my father and Subhash on cart to Jurian Hospital. We were treated there. On second day of occurrence my father Santosh Kumar breathed his last. Accused family were not on talking terms with our family and had no ill-will….”
12. PW Vijay Kumar also stated in his deposition that Kaku Ram and Khairati Lal witnessed the occurrence and were taken to hospital.
13. To the same extent is the evidence of PW Subhash Chander, which is in the following terms:
“… Thereafter Dundu Ram and Khairati Lal came on spot who lifted us all and took to home. And took me and my father to Hospital, Jurian. Me and my father were admitted in hospital. I was stitched. Jurian Hospital sent us to Akhnoor Hospital and Akhnoor Hospital referred us to Jammu Hospital. I remained in Jammu Hospital for one and quarter month….”
14. 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.
15. In regard to the arrest of the accused also, there appear to be some inconsistencies. Whereas the High Court proceeded on the basis that Sunderdas and the appellant were arrested on 11-2-1993 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 2.30 p.m next day and they were four in number. The prosecution has not been able to establish as to who the fourth accused was.
16. 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.
17. The learned trial Judge disbelieved Vijay Kumar and Dhano Devi as being eyewitnesses to the occurrence. The High Court held them to be so. According to Vijay Kumar, the occurrence was witnessed by Kaku Ram and Khairati Lal. 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 Subhash 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 Khairati Lal. 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.
18. 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.
19. 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 eyewitness 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.
20. Khairati Lal, who was 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 bloodstained earth and nothing more. According to Dhano Devi apart from Khairati Lal, 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, who is another eyewitness who was living in the same vicinity where the occurrence took place, has stated that at 8 p.m he was in his house, accused Rattan had gone to the house of Subhash Chander and told him that he was being called by Kaku Foji. When Subhash reached near the gate, Sunderdas and Kaku, the accused were standing in front of them. When Subhash reached there accused Sunder declared (sic asked) as to what they were looking for, whereupon accused Kaku inflicted a drat-blow on the head of Santosh and Rattan inflicted a blow with khukhri on Subhash 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.”
21. 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.
22. Dhano Devi also in her evidence alleged that the appellant had hit Santosh Kumar (the deceased) with khukhri, whereas accused Sunderdas inflicted a lathi-blow on him.
23. 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 Subhash 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 Subhash Chander, which was unnatural.
(iv) If PW Vijay Kumar 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 PW Ramesh Chander, Dhano Devi or Pushpa Devi were present at the spot. On the other hand, they stated that they had come thereafter.
24. 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 in 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, Jurian and found the following injury:
(1) An incised wound on the head parietal region 4″ × 3″ × ½″, bleeding present, vertically placed. Oozing of blood from parietal region, multiple lacerations.
Whereas PW Dr. Inayat Ullah Sheikh, Assistant Professor, Medical College, who conducted the autopsy on the dead body of Santosh Kumar found the following injuries:
1. A 2 cm 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 extravasation of blood on the occipital region of scalp. ½″ diameter depressed fracture of occipital bone.”
25. In the post-mortem certificate, Injury 2 was shown to be 1½″ 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 2 could only be possible by using a blunt object with a striking surface in the measurement of ½″ in diameter e.g hammer. In regard to Injury 1, his opinion was that the same could be possible by a fall or striking on hard surface.
26. 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 record. Even the skiagram 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 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 nambardar and chowkidar were 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.
27. In Samghaji Hariba Patil v. State of Karnataka (2006) 10 SCC 494 this Court held:
“17. 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.”
(See also Kallu v. State of M.P (2006) 10 SCC 313; Chandrappa v. State of Karnataka (2007) 4 SCC 415, (2007) 3 Scale 90 and Swami Prasad v. State of M.P (2007) 13 SCC 25, (2007) 4 Scale 181 SCC at para 27; Scale at paras 26 and 27.)
28. 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.
29. Unfortunately, all these aspects of the matter had not been considered by the High Court in their proper perspective.
30. We, therefore, are of the opinion that the impugned judgment cannot be sustained, which is set aside accordingly. The appeal is allowed. The appellant shall be released forthwith, if not required in any other case.