IMPORTANT POINTS
(1) Only unexplained delay in recording statement of a witness during investigation might render evidence suspect.
(2) When incriminating evidence of a satisfactory character is brushed aside mainly by relying upon a few circumstances which do not go to detract from value of such incriminating evidence, it becomes duty of appellate Court to interfere with acquittal to redeem the course of justice.

Headnote:(i) Constitution of India-Article 136-Appeal against acquittal-Four respondents were convicted u/s 302/34 IPC by trial Court-High Court set aside conviction in appeal-State appeal as well appeal by aggrieved person-Normal rule is that Supreme Court would not interfere in appeal against acquittal unless the judgment of High Court was perverse-When incriminating evidence of a satisfactory character is brushed aside by relying upon a few circumstances which did not go to detract from value of such incriminating evidence, it becomes duty of Court to interfere. (Paras 9 and 10)
(ii) Indian Penal Code, 1860-Sections 302/34, 307/34 and 460-Four accused respondents armed with lathis assaulted three deceased persons in past-Midnight when they were sleeping on cots out side the house-PW 31, a child aged 13 years, sleeping with one of the deceased, had sustained serious injuries by lathi attack and suffered fracture of skull-Trial Court accepting evidence of eye witness child, corroborated by other witnesses who woke up hearing cries and saw accused running away from spot holding lathis convicted all four respondents-High Court set aside conviction in appeal-Appeal-High Court disbelieved PW 31 for delay in recording statement during investigation-Delay had been explained as child having received serious injuries was hospitalised and remained unfit to make statement-Only unexplained delay in recording statement might render it suspect-Investigating officer failing to show electric pole in site plan would not affect prosecution case when PW 31 did say he identified assailants in electric pole light particularly when assailants were known persons, from same village-Reasons given for acquitting accused were wholly perverse-Impugned judgment of acquittal was liable to be set aside and that of trial Court to be restored-Death penalty to one of the respondents, taken to be ring leader, however, could not be sustained as case did not fall in "rarest of rare cases". (Paras 10 to 25)

JUDGMENT

Srikrishna, J.-These appeals are directed against the common judgment of the Rajasthan High Court in Criminal Death Reference No.1 of 1995, Criminal Appeal No. 201 of 1995, 169 of 1995 and 146 of 1995 by which the High Court was pleased to acquit respondents 1 to 4 who had been found guilty of charges under Section 302 r/w S. 307 and 460 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC"). The appellant in Crl. A. No. 1844-46 of 1996 is a person aggrieved by the acquittal of the accused, being closely related to the deceased persons. Criminal Appeal Nos. 3036-38 of 1996 are at the instance of the State of Rajasthan impugning the same judgment of the High Court.

2. Prithvi, the appellant in the above set of appeals, at the material time when the incident occurred, was aged about 13 years. He used to reside, along with his cousin-sister deceased Kumari Lali, with his Uncle, deceased Hansraj and Aunt, deceased Mahadi, in village Kotputali. Hansraj and his elder brother Gheesa, both sons of Dhonkal, were residing in adjoining houses in village Kotputali. Hansraj was married to Mahadi, the sister of Surja (PW-34) and Rameshwar (PW-35). Hansraj had no issues and, therefore, he desired to bring up and kept with him Hardan (PW-5), the son of his brother Ghessa. For some reason, Hansraj was annoyed with Hardan and threw him out of his house. He, therefore, allowed Prithvi (PW-31), who was the son of his brother-in-law Surja (PW-34) and Lali, the daughter of his brother-in-law Rameshwar (PW-35) to live in his house. Respondent No.1 - Mam Raj, s/o Bhagwana, r/o Village Naurangpura; respondent No.2 - Jai Ram, s/o Bhagwana, r/o Village Naurangpura; respondent No.3 - Rameshwar, s/o Ghisa, r/o Village Kuhara; and respondent No. 4 - Bharta, s/o Sohanlal, r/o Village Khatoti, are all close relatives of Gheesa. Mam Raj and Jai Ram are the brothers of Gheesa s wife; Rameshwar is the father-in-law of the younger brother of Hardan and Bharta is Gheesa s sister s son. Hansraj had certain agricultural land, which he desired to give away to Prithvi in preference to Hardan. On this account, the respondents were angry with Hansraj and on some occasions, prior to the date of occurrence, threatened him with serious consequences if his agricultural land was not given to Hardan and if he failed to turn out Prithvi and Prithvi s cousin Lali from his house. Hansraj, however, refused to comply with these demands despite the threats.

3. On the night of 14th/15th August 1993, Hansraj and Prithvi were sleeping on charpais outside the house of Hansraj, Mahadi and Lali were sleeping on charpais in the courtyard inside his house. The case of the prosecution is that in the dead of the night, between midnight and 1.00 AM, the four respondents came to the spot armed with lathis in their hands. Rameshwar gave a lathi blow on the head of Prithvi, but since he was sleeping with his hand over his head, the lathi immediately hit his hand as a result of which he got up and saw the respondents Mam Raj, Jai Ram and Bharta giving lathi blows to Hansraj. Prithvi attempted to raise an alarm whereupon all the four accused gave him lathi blows on his head, eye, hand and other parts of his body. Respondent No.2 - Jai Ram thereafter stated to the other respondents that all the victims had died and that they all should run away from the spot. Accordingly, the respondents ran away from the spot.

4. Prithvi thereafter raised an alarm, which attracted the attention of Ganpat and Sona (PW-32) who were residing nearby. Sona was lying on a cot by the side of his neighbouring house and upon hearing the barking of the dogs, he came awake. He saw some people running by near his charpai within a few feet and flashed his torchlight on them. He recognised Mam Raj, Jai Ram and Rameshwar who were seen running towards village Naurangpura. The noise also attracted the attention of Bhagwan (PW-17), Birbal (PW-18) and Rameshwar (PW-19) who were also sleeping outside their adjoining

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2004 Supreme(SC) 216

Cases Referred (6)