Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 2082 of 2008, Judgment Date: Apr 10, 2015

                                                              Non-Reportable

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.2082 of 2008

State of Rajasthan                                             .... Appellant

                                   Versus

Sampat Ram and others                                       .... Respondents

                               J U D G M E N T


Uday Umesh Lalit, J.


1.    This appeal by special leave  seeks  to  challenge  the  judgment  and
order dated 11.02.2008 in DB-Criminal Appeal No.338 of 1983  passed  by  the
High  Court  of  Judicature  for  Rajasthan  at   Jodhpur   acquitting   the
respondents of the offences punishable under Sections  147,  302  read  with
Section 149 IPC.

2.    The matter arises out of reporting made by PW3 Lalaram at 11.30 pm  on
21.05.1982 that at about 8.30 pm while  returning  from  his  field  he  had
stayed at piao of Padmaji for having water and  smoke.   That  time  he  saw
Bhagirath, resident of Tausar ploughing his field with a tractor  driven  by
PW4 Ramkaran.  He also saw "one child" sitting on the  tractor,  whose  name
he did not know.  While so sitting at piao  he  saw  that  the  respondents-
accused and one more person armed with lathis  and  kassies  had  formed  an
unlawful  assembly  and  entered  into  the  field  of  Bhagirath.   As  per
reporting, he was able to identify them all in the light of the tractor  and
he had seen accused-respondent  Manglaram  stopping  the  tractor  whereupon
Bhagirath came down from the tractor.  Accused  Sampat  Ram  then  allegedly
inflicted a kassi blow on the head of Bhagirath  who  fell  down.   Treating
him to be dead all the accused ran away.  PW3  Lalaram  went  to  the  spot,
remained there for about an hour and since nobody appeared he left the  dead
body of Bhagirath there itself.

3.    On  this  reporting  a  case  was  initially  registered  against  the
respondents and one Bheenvraj.  After investigation charge-sheet  was  filed
against the respondents and Bheenvraj under Sections 147, 148, 149, 302  and
120B IPC.  The prosecution examined sixteen witnesses.   The  informant  PW3
Lalaram  turned  hostile  and  could  not  identify  the  assailants.    PW4
Ramkaran, driver of the tractor could identify all the  accused  and  stated
that respondent Sampat Ram had dealt kassi blow on  the  head  of  Bhagirath
while the others with their lathis had  given  blows  to  him.   He  further
stated that immediately  after  the  incident  he  had  left  the  place  of
occurrence with his tractor to his house.  The person who  was  referred  to
as "one child" in the initial reporting, according to  the  prosecution  was
PW5 Ramratan.   As a matter of fact, PW5 Ramratan was aged  about  22  years
and a stout person.  He could identify  only  one  accused  i.e.  respondent
Sampat Ram, who allegedly was carrying a kassi and had given a blow  on  the
head of Bhagirath.  PW11 Dr. Shankarlal  had conducted  post-mortem  on  the
dead body of Bhagirath deposed about the injuries and  his  opinion  was  as
under:
"a lacerated wound of size 2" x " x deep muscle on the  head  of  deceased,
another lacerated wound of size " x " was over  head.   Apart  from  these
injuries were also found over back and right arm.  Upon opening  the  skull,
bone fracture was found  over  left  parietal  bone  and  on  the  joint  of
parietal bones.  There were other brain injuries also found.  The  cause  of
death of deceased was shock  arisen  due  to  brain  injuries  and  internal
bleeding.  Several bones of skull found  fractured.   ..............   These
injuries were ante mortem in nature and were sufficient to  cause  death  in
the ordinary course of nature and the same could have  been  caused  by  the
opposite side of kassi."


      The recovery of kassi Article 1 was  proved  by  PW6  Ganpath  on  the
basis of disclosure information Ext.P-19 given by  Sampat  Ram.     However,
upon chemical examination no blood was found on it.

4.    After considering the material on record the trial  court  found  that
the case was established as against the  present  respondents.   It  however
gave benefit of doubt to Bheenvraj and acquitted him  of  all  the  charges.
Accused Sampat Ram was convicted under Section 147 IPC and was sentenced  to
undergo rigorous imprisonment for two years and payment of fine of  Rs.100/-
, in default whereof to suffer RI for one month and under  Section  302  IPC
to sentence of life imprisonment and fine of Rs.100/-,  in  default  whereof
to suffer RI for one month.  The other  respondents-accused  were  convicted
under Section 302 IPC with the aid of Section 149 IPC  and  awarded  similar
sentence.

5.    The respondents appealed against  their  conviction  and  sentence  by
filing DB Criminal Appeal  No.338  of  1983  in  the  High  Court.   It  was
submitted that PW3 Lalaram having turned hostile his evidence could  not  be
relied upon and that the  very  basis  for  initiation  of  prosecution  was
completely shaken.   The person who was referred to as "one child"  and  not
named in the FIR was now turning out to be  PW5  Ramratan,  a  stout  person
which was again extremely doubtful.  It  was  further  submitted  that  soon
after the incident PW4 Ramkaran had straightaway gone to his  house  on  the
tractor and never reported the matter to anyone and as  such  his  behaviour
was beyond normal course of conduct.

6.    The High Court observed that the time and occurrence was between 8  to
9 pm, the night was dark, the accused were strangers to  the  witnesses  and
no test identification was  conducted  during  the  investigation.   It  was
further observed that according to PW4 Ramkaran, the  accused  persons  were
not in the front of the tractor  or  in  the  light  of  the  tractor.   His
behaviour in leaving the place of occurrence and not  reporting  the  matter
to anyone was found to be against normal human behaviour.   As  regards  PW5
Ramratan who was a total stranger and  whose  very  presence  was  doubtful,
material contradictions were also found in his statement.   On  the  overall
analysis of the matter the prosecution witnesses  who  claimed  to  be  eye-
witnesses were found to be unreliable and untrustworthy by the  High  Court.
The High Court, thus, allowed the  appeal  and  acquitted  the  respondents-
accused of all the charges.

7.    The aforesaid view of the High Court is challenged  by  the  State  in
this appeal by special leave.  During  the  pendency  of  this  appeal,  two
respondents-accused viz. Ramdhan and Sardar Ram have  expired  and  as  such
the appeal against them stands abated.  Appearing in support of the  appeal,
Mr. S.S. Shamshery, Additional Advocate General submitted that PW4  Ramkaran
being driver of the tractor would be expected  to  have  been  visiting  the
adjoining villages as well and as such  identification  of  the  accused  by
such witness is not unnatural.  Evidence on part of  PW5  Ramratan  and  the
medical evidence was sought to be relied upon  to  corroborate  the  version
of PW4 Ramkaran.  Mr. V.J.  Francis,  learned  advocate  appearing  for  the
respondents submitted that the  behaviour  of  PW4  Ramkaran  was  extremely
unnatural, that in the darkness and specially  without  the  lights  of  the
tractor he could not  have  identified  the  assailants,  who  were  from  a
different village.

8.    We have gone though the record and considered the  rival  submissions.
PW3 Lalaram, having turned hostile, the  matter  completely  hinges  on  the
testimony  of  PW4  Ramkaran.   His  behaviour  in  leaving  the  place   of
occurrence and not reporting the matter to any one is  extremely  unnatural.
The incident having  occurred  in  the  darkness  and  as  accepted  by  PW4
Ramkaran it was not in front of the tractor, the chance and opportunity  for
him to have sufficiently identified the assailants is also doubtful.   There
is nothing on record as to how "one child"  who  was  on  the  tractor,  has
after investigation been found to be none  other  than  PW5  Ramratan,  aged
about 22 years and a stout person.

9.    In the circumstances, the view that has weighed with  the  High  Court
in reversing the order of conviction and acquitting the  respondents-accused
is definitely a possible view.  In this appeal against acquittal, we do  not
see  any  justification  to  upset  such  view  taken  by  the  High  Court.
Consequently, this appeal fails and is dismissed.


                                         .................................J.
                                                     (Pinaki Chandra Ghose)



                                         .. ..............................J.
                                                         (Uday Umesh Lalit)
New Delhi,
April 10, 2015


ITEM NO.1A               COURT NO.13               SECTION II

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

                     Criminal Appeal  No(s).  2082/2008

STATE OF RAJASTHAN                                              Appellant(s)

                                VERSUS

SAMPAT RAM & ORS.                                              Respondent(s)



Date : 10/04/2015      This appeal was called on for pronouncement of
            judgment today.


For Appellant(s) Mr. S.S. Shamshery, AAG, Rajasthan
                       Mr. Amit Sharma, Adv.
                       Mr. Sandeep Singh, Adv.
                       Mr. Ajay Chaudhary, Adv.
                       Mr. Irshad Ahmad, Adv.

For Respondent(s)      Mr. V. J. Francis, Adv.
                       Mr. Anupam Mishra, Adv.
                       Mr. Simanta Kumar, Adv.


      Hon'ble Mr. Justice Uday Umesh  Lalit  pronounced  the  non-reportable
judgment of the Bench comprising Hon'ble Mr. Justice  Pinaki  Chandra  Ghose
and His Lordship.
      The  appeal  is  dismissed  in  terms  of  the  signed  non-reportable
judgment.

      (R.NATARAJAN)                                 (SNEH LATA SHARMA)
       Court Master                                    Court Master
        (Signed non-reportable judgment is placed on the file)