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2009(6) Supreme 70
SUPREME COURT OF INDIA
V.S. Sirpurkar & J.M. Panchal, JJ.
Bheru Lal & Ors. — Appellants
versus
State of Rajasthan — Respondent
Criminal Appeal No. 898 of 2004
Decided on : 10-08-2009
Facts of the Case :
Present appeal has been filed by accused persons against their conviction for causing death of two persons by inflicting injuries by means of swords. Plea of appellants that no reliance could be placed on evidence of PW-7, as she being mother of deceased persons.
Findings of the Court :
Mrely because a witness exaggerates or is an interested witness, the evidence cannot be thrown, where it is found that there is a ring of truth to the version of the witness.No dispute that PW7 was an interested witness, as also her having exaggerated her version. However, that by itself, would not make her evidence unbelievable. PW7 being a mother, who was deposing about the assault on her sons she certainly would not be interested in allowing the real culprits to go unpunished. No doubt accused persons claimed to have been injured in the same incident but that by itself was not sufficient because there did not appear to be any sword seized by the police on the spot. If deceased persons had carried a sword for injuring this witness and if both of them died on the spot, surely the sword could not have disappeared. Considering the overall evidence of two defence witnesses, it was extremely doubtful whether the injuries to the accused persons were caused during the incident.Apart from that injuries, even if they were established to have been suffered by accused person, were extremely insignificant injuries and, therefore, those injuries did not need any explanation on the part of the prosecution.Held theory propounded by the defence that it was done in the exercise of right to private defence was baseless and had been rightly rejected and that evidence led on behalf of the prosecution, the eye witness account by PW-7 and the other substantial evidence of recovery of the blood stained articles and clothes was fully established. Prosecution was able to fully establish that the accused persons not only murdered deceased persons but also committed the offence under Section 439 read with Section 34, IPC by setting at fire the tractor and household articles of the complainant
Result : Appeal dismissed.
JUDGMENT
V.S. Sirpurkar, J.—
1. This judgment will dispose of the Criminal Appeal No. 898 of 2004 filed by three appellants as also the Special Leave Petition filed by the State of Rajasthan against the acquittal of one of the accused who was convicted by the Trial Court but was acquitted by the High Court. The three accused persons, namely, original accused No. 1 Bheru Lal, original accused No.3, Kailash Chandra and original accused No. 5, Purushottam have come up before us challenging their conviction for various offences including offences under Sections 147, 148, 302 read with Section 149, Indian Penal Code (for short “IPC”), 436 read with Section 149, IPC and confirmed by the High Court. Originally, as many as seven accused persons were tried for all these offences. However, the Sessions Judge convicted in all five accused persons including the present three appellants and two others, namely, Girraj, original accused No. 6 and Gopal, original accused No.4. The High Court allowed the appeal of accused Girraj and acquitted him. It confirmed the conviction and sentence of the remaining four accused persons. In that, the Court convicted Bheru Lal for the offence under Section 302, IPC simpliciter and for offence under Section 436 read with Section 34, IPC. The remaining three accused were also convicted for the offence under Section 302 and Section 436 read with Section 34, IPC.
2. In short, the High Court rejected the offences having been committed by the unlawful assembly and set aside their convictions ordered by the Trial Court which were in the aid of Section 149, IPC and held that the offences were committed in furtherance of the common intention of the accused persons. Out of the four accused persons so convicted, only three have come up before us. Originally, the appeal seems to have been filed on behalf of all the four accused including Gopal but the name of Gopal was thereafter removed from the array of appellants. We enquired from the Registry as to whether Gopal had filed any appeal but we were informed that there was no appeal filed by him. We are, therefore, left with the appeal filed by the three appellants named above.
3. Shortly stated the prosecution case is that one Basanti Bai, PW-7 lodged a report with police station Raipur, District Jhalawar on 26.10.1997 at about 4:30 p.m. to the effect that her sons, Shayam Lal and Balkishan were belaboured by the seven accused persons. It was further stated that the appellant Bheru Lal and Kailash Chandra had inflicted sword blows on the left and right hand and neck of Shayam Lal while appellant Purushottam and Gopal gave sword and spear blows, respectively, on the back and head of Balkishan. Thus all the appellants had indiscriminately inflicted injuries on the person of deceased Shayam Lal and Balkishan, while appellant Girraj and Bheru Lal crushed their heads with stones. It was further alleged that after this ghastly incident, the appellants had set at fire the tractor trolley, stack of onion and groundnut. Offence was registered on these basis and after due investigation as many as seven persons came to be charged of offences under Section 147, 148, 341, 302, IPC and in the alternative Section 302 read with Sections 149, 436, IPC substantively as well as Section 436 read with Section 149, IPC as also Section 435 and 435 read with Section 149, IPC and Section 427 and in the alternative Section 427 read with Section 149, IPC. As has been stated earlier two of the accused persons were acquitted by the Trial Court and now we are left with this appeal at the instance of the three accused.
4. Shri Sushil Kumar Jain, learned counsel appearing for the appellants firstly urged that the evidence of the eye witness, namely, PW-7, Basanti Bai and the other eye witnesses, namely, Ram Prasad (PW-3), Kanwar Lal (PW-5) and Puri Lal (PW-6) was wrongly relied upon by the Trial Court as well as the High Court. It was pointed out that barring Basanti Bai (PW-7), all these witnesses
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