IMPORTANT POINT
Miscarriage of justice has resulted by an entirely faulty and erroneous appreciation of evidence by the High Court in recording acquittal based on alleged three grounds. From evidence, the only view possible is one taken by the Sessions Court in recording conviction of respondents. The appeal against acquittal is accordingly allowed by Apex Court.

Headnote:(i) Indian Penal Code, 1860-Sections 452, 307 r/w Section 34 and Section 302 r/w 34-Respondents convicted for causing attempt to murder by house trespass of PW 3 and when PW 3 was tried to be saved by his wife caused injury to her by country made pistol but resulting in her death by Sessions Court-High Court acquitted on grounds of no proof of light, improvements and contradictions in testimony of prosecution and difference in ocular and medical evidence regarding injuries-Appeal against acquittal-Supreme Court finding view of High Court based on grave illegality in coming to said conclusions-Result-Appeal allowed. (Para 17)
       Held (as to proof of light) : The testimony of PW3 clearly shows that when he stated that the electric connection was made available less than a year ago he was referring to the date of the incident and not the date when his statement was recorded. After deposing about the time when the electric connection was installed, PW3 further stated that he told the Police about the electric light being on. By no stretch of imagination anyone can come to the conclusion that PW3 admitted that when occurrence took place, there was no electric connection. The mention of the electric bulbs at various places, as earlier noticed, was also made in the site plan prepared by the Police. In this view, the High Court committed grave illegality in coming to the conclusion that in absence of light, the assailants could not be recognized. (Para 6)
       Held then : For reaching the conclusion that there are improvements and contradictions in the statement of the prosecution witnesses, the High Court has completely misread the FIR and has come to the conclusion that the factum of the respondents having caught hold of PW3 has not been mentioned in the FIR. In fact, FIR specifically states that the respondents caught hold of PW3. The High Court seems to have made too much of the minor contradictions about the non-mention of the dandas in the FIR. The so called contradictions and improvements, according to the High Court, are the result of darkness in view of the absence of the electric connection, a finding which is not at all sustainable as noticed above. The further finding of the High Court that testimony of PW3 is uncorroborated is again unsustainable. PW4 was living in the same compound. His name is mentioned in the FIR. He is deposed to have seen the respondents coming out of the house of PW3. PW4 is next door neighbour of PW3. He is a natural witness of the occurrence. A well reasoned judgment of the Sessions Court on critical analysis of the evidence was reversed by the High Court on consideration of improvements and contradictions which are minor and natural and rather go to show the truthfulness of the evidence. (Para 7)
       Held (as to difference between medical and ocular evidence) : The testimony of PW8 that the injuries were caused with sharp-edged weapon and not with a blunt weapon, is in the nature of the opinion of one of the doctors. In any case, testimony of PW8 cannot be read in isolation. His evidence is to be read as a whole and when so read it becomes clear that the injuries of the kind inflicted on PW3 and the deceased could be caused with the butt of the revolver. It has also to be borne in mind that generally injury on head is caused by a blunt weapon. (Para 14)
       Besides the medical evidence, what is also to be kept in view is that in the FIR recorded on the oral statement of PW3 immediately after the occurrence, it was specifically stated that the injuries were caused by the butt of the country made pistol. The medical evidence and the ocular evidence is wholly consistent as was rightly held by the Court of Sessions. We are conscious of limitations while dealing with an appeal against a judgment of acquittal. Having, however, found that miscarriage of justice has resulted by an entirely faulty and erroneous appreciation of evidence by the High Court, it becomes our duty to interfere in the matter. From the evidence, the only view possible is one taken by the Sessions Court. (Para 15)
       (ii) Indian Penal Code, 1860-Sections 302 and 304-Nature of offence -Single blow inflicted on the head of wife of PW 3 with butt of country made pistol-Can it be said that respondents had no intention to kill? (No).
       Held : On the facts and circumstances of the case, it is also not possible to accept the contention that the respondents had no intention to kill and, therefore, their conviction deserves to be altered to be one falling under Section 304 IPC. As already noticed, at the dead of the night the respondents and their father went to the house of PW3 with a country made pistol and with force inflicted such injuries on head which resulted in death of wife of PW3. The mere fact that only a single blow was inflicted on the head by itself is not enough to alter the conviction from Section 302 to Section 304 IPC. (Para 16)

JUDGMENT

Y.K. Sabharwal, J.-Respondents 1 and 2 in this appeal who are brothers were convicted by the Session Court for the offence under Sections 452, 307 read with Section 34 and Section 302 read with Section 34 IPC. Their father, respondent no.3, was also convicted for offence under Sections 452, 307 and Section 302 read with Section 34 IPC. Their conviction and consequently the sentence that had been imposed on them by the Sessions Court was set aside in appeal by the High Court in terms of the impugned judgment. The State is in appeal to this Court on grant of leave. During the pendency of the appeal, respondent no.3, Devi Das died. The appeal thus abates against him.

2. The prosecution case in brief is that respondents 1 and 2, their father and another person entered the house of Raghubir (PW3) at about midnight of 15th -16th January. 1977 while he was sleeping with his wife and children. After removing the quilt, the respondents held fast PW3 and he was hit on the head with the butt of the country-made pistol. When Budh Wati @ Ved Wati, wife of PW3, came to save him, she was also assaulted with butt of the pistol. On hearing their cries, Mathuri (PW4) and Balwant, living in the same compound, came whereupon the accused ran away. PW3 and his wife were assaulted because PW3 was cited as a prosecution witness against the respondents and their father in the case of murder of one Rajinder son of Prem Sahai where they were accused. The place of occurrence is at a distance of about 9 kilometer from the Police Station. The FIR was recorded on the statement of PW3 at 8.30 a.m. Budh Wati succumbed to her injuries at about 9.00 p.m. on 16th January.

3. The Sessions Court, on appreciation of the evidence of PW3, PW4, Police officials and the medical evidence, convicted the three accused. The fourth person was not identified and, thus, could not be apprehended.

4. In reversing the judgment of the Sessions Court, the factors that have been taken into consideration and weighed with the High Court are :

1. Absence of proof of light,

2. Improvements and contradictions in the testimony of prosecution witnesses; and

3. Difference between the ocular and medical evidence regarding injuries.

5. The incident took place around midnight. The reasons for the High Court s coming to the conclusion that there was no source of light available to the witness to recognize the assailants are :

(a) Non-mention of the presence of electric bulb in the FIR;

(b) Admission of PW3 that electric connection was not available in his house before incident; and

(c) Fact of source of light being not mentioned in the statement of PW3 recorded during investigation under Section 161 of the Criminal Procedure Code.

6. PW7, S.I. S.P. Singh, inspected the place of occurrence on 16th January and prepared a site plan which mentions one electric bulb in the Kothri of Raghubir, one in his courtyard and another in the Kothri of PW4. These electric points have been shown in site plan (Exhibit Ka-10). The witness was hardly challenged. The existence of the electric bulbs was also not seriously challenged in the cross-examination of other witnesses. The omission to mention about light in the FIR or in the statement of PW3 recorded by the police under Section 161 Cr.P.C. was wholly inconsequential. PW3 had made a categorical statement of having recognized the assailants. There is also no admission in the statement of PW3 about the non-availability of the electric connection. The finding as also the reasoning is wholly contrary to evidence and established facts. The High Court has held that the statement of PW3 was recorded on 9th May, 1979 and he admitted that the electric connection was made available about one year ago and from this, the admission of PW3 was inferred about the non-availability of the electric connection. The testimony of PW3 clearly shows that when he stated that

Click Here to Read the rest of this document