2001 Supreme(SC) 848

2001(3) Supreme 690
SUPREME COURT OF INDIA
(From Gujarat High Court)
Dr. A.S. Anand, CJI., R.C. Lahoti and Doraiswamy Raju, JJ.
Takhaji Hiraji -Appellant
versus
Thakore Kubersing Chamansing & Ors. -Respondents
Criminal Appeal No. 635 of 1992
With
Criminal Appeal No. 636 of 1992
Decided on 2-5-2001
Counsel for the Parties :
For the Appearing Parties : Adarsh K. Goel, Sr. Advocate, Vimal Dave, C.K. Virmani, Ms. H. Wahi, Ms. Anu Sawhney, Romy Chacko, Anil Kumar Sinha, P. Narasimhan, Advocates.

IMPORTANT POINT
The two grounds on which High Court reversed the judgment of Sessions Court are irrelevant for such reversal. Justice has been made semile by exaggerated adherence to rule of proof. Benefit of doubt must always be reasonable and not fanciful.

Headnote:(i) Indian Penal Code, 1860-Sections 147, 148, 302/34/149, 307/34/149, 302/307/109, 325, 325/34 324 and 324/324-Offences under-Either persons tried for quarrel between two groups in a rope dancer-Trial Court acquitted five festival and convicted three i.e. accused 1, 2 for offences under Section 302 and 304 IPC and accused 5 for offence under Section 325 IPC only-High Court acquitted them also in appeal-Appeal to Supreme Court-Acquittal based on non-explanation by prosecution of injuries sustained by the accused persons-Whether correct? (No) (Para 18) acquittal based on non-examination of independent witnesses-Whether correct? (No).

       Held : The first question which arises for consideration is what is the effect of non-explanation of injuries sustained by the accused persons.In Rajendra Singh & Ors. Vs. State of Bthar. (2000) 4 SCC 298, 2000(4) supreme 435 Ram Sunder Yadav & Ors. Vs. State of Bihar. (1998) 7 SCC 365 1998(6) supreme 522 and Vijayee Singh & Ors. Vs. State of U.P.. (1990) 3 SCC 190, all 3-Judges Bench decisions, the view taken consistently is that it cannot be held as a matter of law or Invariably a rule that whenever accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non-explanation of the injuries on the person of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions ; (i) that the injury on the person of the accused was of a serious nature-; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear cogent and credit worthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case. The High Court was therefore not right in overthrowing the entire prosecution case for non-explanation of the injuries sustained by the accused persons. The High Court ought to have made an effort at searching out the truth on the material available on record as also to find out how much of the prosecution case was proved beyond reasonable doubt and was worthy of being accepted as truthful. So is the case with the criticism levelled by the High Court on the prosecution case finding fault therewith for non-examination of independent witnesses. It is true that if a material witness, which would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness which though available is not examined, the prosecution case can be termed as suffering from a deficiency and withttolding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or deplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the Court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself - whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the Court can safely act upon it uninfluenced by the factum of non-examination of other witnesses. In the present case we find that there are at least 5 witnesses whose presence at the place of the incident and whose having seen the Incident cannot be doubted at all. It is not even suggested by the defence that they were not present at the place of the incident and did not participate therein. The injuries sustained by these witnesses are not just minor and certainly not self-inflicted. None of the witnesses had a previous enmity with any of the accused persons and there is apparently no reason why they would tell a lie. The genesis of the incident is brought out by these witnesses. In fact, the presence of the prosecution party and the accused persons in the chowk of the village is not disputed. How the vanity of Thakores was hurt leading into a heated verbal exchange is also not in dispute. Then followed the assault. If the place of the incident was the chowk then it was a sudden and not pre-meditated fight between the two parties. If the accused persons had reached their houses and the members of the prosecution party had followed them and opened the assault near the house of the accused persons then it could probably be held to be a case of self-defence of the accused persons in which case non-explanation of the injuries sustained by the accused persons would have assumed significance. The learned Sessions Judge has on appreciation of oral and circumstantial evidence inferred that the place of the incident was the chowk and not a place near the houses of the accused persons. Nothing more could have been revealed by other village people or the party of tight rope dance performers. The evidence available on record shows and that appears to be very natural, that as soon as the melee ensued all the village people and I tight rope dance performers took to their heels. They could not have seen the entire Incident. The learned Sessions Judge has minutely scrutinised the statements of all the eye-witnesses and found them consistent and reliable. The High Court made no effort at scrutinising and analysing the ocular testimony so as to doubt, if at all, the correctness of the several findings arrived at by the Sessions Court. With the assistance of the learned counsel for the parties we have gone through the evidence adduced and on our independent appreciation we find the eye-witnesses consistent and reliable in their narration of the incident. In our opinion non-examination of other witnesses does not cast any infirmity in the prosecution case. (Paras 17, 18 and 19)

       Held consequently : Thus, we are of the opinion that the two grounds on which the High Court has reversed the judgment of the Sessions Court were Irrelevant and could not have been relevant for such reversal. Justice has been made sterile by exaggerated adherence to rule of proof. Benefit of doubt must always be reasonable and not fenciful. (Para 20)

       (ii) Constitution of India-Article 136-Appeal to Supreme Court by complainant, an injured person in incident and by State against acquittal of accused 1, 2 and 5 by High Court-Two grounds of acquittal found irrelevant for such acquittal-Quarrel between Thakores and Kolis in a rope-dancing festival-High Court making no effect to appreciate evidence of prosecution-Whether proper? (No)-Thus appreciation of evidence done by Supreme Court-Acquittal set aside and conviction restored excepting makeing variation that the accused 2-Dying declaration also taken into account-Appeals allowed in part.

       Held : The High Court has not entered into appreciation of evidence. No effort has been made by the High Court at maishcusing the evidence and assessing the intrinsic worth of the testimony of the prosecution witnesses which, as we have already noted, were the persons undoubtedly present at the place of the incident having themselves suffered injuries. (Para 16)

       As we have already stated, we have ourselves minutely scrutinised the evidence available on record. We do not find any infirmity in the findings arrived at by the learned Sessions Judge fixing the liability on the accused persons by pointing out the specific overt act attributed to each of the accused persons. However, on the determination of the nature of offence committed by one of the accused persons, we are at variance with the finding of the learned Sessions Judge which we will state a little later. We do not deem it necessary to re-state in very many details our own findings as to the exact role played by the three accused respondents inasmuch as they are the same as have been recorded by the learned Sessions Judge. However, briefly we would indicate what we have found from the appreciation of evidence. Kubersing, accused no.1 dealt a blow by dagger on the abdomen of Amuji Narsingji. This injury proved fatal. It was sufficient in the ordinary course of nature to cause. All the witnesses have attributed this fatal injury on the person of Amuji Narsingji to Kubersing accused no.1. Thus he has been rightly convicted of an offence punishable under Section 302 IPC for causing death of Narsingji Hiraji. Narsingji Hiraji had sustained only one stab wound in the abdomen. The weapon had penetrated deep cutting the intestines which shows the force by which the blow was dealt. The author of this injury is Kubersing accused no.1 as deposed to by all the witnesses. This injury was also sufficient in the ordinary course of nature to cause death. Kubersing accused no.1 is therefore guilty of offence punishable under Section 302 IPC also for causing the death of Narsingji Hiraji. Dr. Vervadia PW2, who examined Sabuji Virajl on 24.3.1980 at 12.15 a.m. found him to have sustained 3 injuries of which the incised wound on left side of upper part of abdomen was 1" x ¼" x ¼". This injury is attributed to Magansing, accused No. 2 by all the prosecution witnesses. They are consistent on this point and not shaken in cross-examination. The dying declaration, Ex.28, made by the deceased Sabuji and recorded by Magistrate also attributes authorship of this injury to Magansing, accused No.2. However, what has to be really determined is the nature of this injury. In his statement Dr. Vervadia has not stated the nature of the injury caused. Sabuji Viraji died on 30.3.1980. Post-mortem on his dead body was conducted on 31.3.1980 by Dr. Solanki PW4. Dr. Solanki, PW4, conducted post mortem on the dead body of Sabuji on 31.3.80 at 10.20 AM. He found the wound stitched. On opening he found internally - "Large intestine sutured wound 2.5 cm on splenic flexure gappling containing faecal matter; surrounding area of wound was red in colour; opening was found absent". The cause of death in the opinion of Dr. Solankj was shock due to acute peritonitis. None of the two doctors has deposed if the injury was grievous or sufficient in the ordinary course of nature to cause death or that the injury was so imminently dangerous that it must have in all probability resulted in death or was likely to cause death. The exact cause of peritonitis is not known. That negligence to treat the wound could be a contributing factor cannot be ruled out. In such state of medical evidence it will not be proper to draw an inference against Magansing accused no. 2 of his having committed murder of Sabusing Viraji punishable under Section 302 of the IPC. The injury dealt by him by a sharp weapon had cut into the intestine. Though, an intention to cause death or such bodily injury as is likely to cause death cannot be attributed to him, knowledge is attributable to accused No.2 that an injury by knife into the abdomen was likely to cause death. As it was a case of sudden fight, the act of this accused would amount to culpable homicide not amounting to murder punishable under part II of Section 304 of IPC. The other injuries on the person of Sabuji are not attributed to accused No. 2, Magansing. Insofar as Gajrabai Magansing the accused no.5 is concerned her causing a grievous hurt to Viraji Devaji by a stick is proved beyond reasonable doubt Viraji Devaji s own statement to this effect is fully corroborated by other eye witnesses and medical evidence. In our opinion, she was rightly convicted by the learned Sessions Judge under Section 325 of the IPC. We do not deem it necessary to further discuss the evidence and record our findings as to offences punishable under Section 324 of the IPC committed by accused no.1 and accused no.2 for causing injuries by sharp weapon to other prosecution witnesses inasmuch as the learned sessions Judge having recorded a finding of guilt on those counts has chosen not to pass any sentence of imprisonment and therefore such exercise would be futile at this stage, also in view of the nature of sentences which is being passed on the accused respondents. (Paras 21, 22, 23, 24, 25 and 26)

       Held finally : For the foregoing reasons the appeals are partly allowed. The judgment of the High Court, under appeal, is set aside. The finding of guilty as recorded by the trial court along with the sentence passed thereon on the respondent, Kubersing Chamansing (accused no.1) are restored, that is, he is held guilty of offences punishable under Section 302 IPC on two heads respectively for causing the death of Narsingji Hiraji and Amuji Narsingji. He is sentenced to imprisonment for life on both the counts. Both the sentences shall run concurrenly. The acquittal of Magansing Dadusing, accused no.2 under Section 302 IPC is maintained. However, he is held guilty of an offence punishable under Section 304 Part II IPC for causing culpable homicide not amounting to murder of Sabusing Viraji and he is sentenced to undergo rigorous imprisonment for a period of five years with a fine of Rs.2,000/- in default of payment whereof he shall undergo further imprisonment for a period of six months. The amount of fine, if realised, shall be paid as compensation to the heirs of Late Sabuji. The acquittal ofGajrabai Magansing accused no.5 under Section 325 is set aside and instead her conviction along with sentence as passed by the trial court is restored. The bail bonds of Kubersing Chamansing and Magansing Dadusing are hereby cancelled. They shall surrender and be taken into custody for serving out the sentences as passed hereinabove. Gajrabai the respondent-accused no.5 shall be called upon to execute the bond and furnish one surety as ordered by the trial court. The amount of Rs.500/- shall be recovered from her as fine and paid by way of compensation to Viraji Devaji as ordered by the trial court. The appeals stand disposed of accordingly. (Para 27)