State of Rajasthan Vs. Chandu & Ors.
EmailAppeal: Criminal Appeal Nos. 615-616 of 1994
Petitioner: State of Rajasthan
Respondent: Chandu & Ors.
Apeal: Criminal Appeal Nos. 615-616 of 1994
Judges: Y.K. SABHARWAL & K.G. BALAKRISHNAN, JJ.
Date of Judgment: Nov 21, 2002
Head Note:
CRIMINAL LAW
Evidence Act, 1872
Section 3 – Interested witness – Reliance – Principle of; reiterated.
Held:
It is no doubt true that conviction can be based on the sole testimony of an interested eye-witness. The rule that the conviction can be based on the sole testimony of an interested eye-witness is subject to the limitation that the testimony of such a witness is trustworthy and consistent and court finds it safe to fully rely upon the deposition of such a witness in regard to the nature of the occurrence and the involvement of the accused. (Para 6)
b) Section 3 – Interested witness – Reliance – All PWs interested and inimical towards opposite party. Held that it is prudent to look for corroboration. (Para 6)
c) Section 3 with Indian Penal Code, 1860 – Section 302/34 – Criminal Procedure Code, 1973 – Section 379 – Testimony – Reliance – Three persons convicted – No independent witness – Only eye witness interested and inimical – Glaring discrepancies – Testimony at variance with medical evidence, stated to have seen one accused firing at a lady – No fire arm injury on her – Difference in place of occurrence. Held that there are no grounds to interfere with the judgment of acquittal recorded by High Court.
JUDGEMENT:
ORDER
1. These appeals have been filed by the state challenging the impugned order of the High Court whereby the High Court dismissed criminal appeal no. 125/1987 which had been filed by the state to challenge the acquittal of 10 accused by the court of sessions and allowing criminal appeal no. 389/1987 filed by three accused Chandu, Budh Singh @ Buddhu and Jodh Singh wherein they had challenged their conviction and sentence by the court of sessions. In the sessions trial 13 accused were put on trial. Ten of them were acquitted. Their acquittal was subject matter of criminal appeal no. 125/1987 filed by the state. The aforesaid three accused were convicted. First two for offence under section 302, IPC and third – Jodh Singh for offence under section 307, IPC. Chandu and Budh Singh were directed to undergo life imprisonment besides fine of Rs. 1,000/-, Jodh Singh was sentenced to 10 years’ rigorous imprisonment and fine of Rs. 500/-.
2. In these appeals neither serious challenge has been made nor on facts it could be made to the acquittal of 10 accused by the court of sessions as confirmed by the High Court by dismissing criminal appeal no. 125/1987. Thus the short question that requires for consideration is the state appeal challenging the acquittal by the High Court of the aforesaid three accused.
3. The incident in question took place on 20.1.1984 in the afternoon at about 2.30 p.m. There were injuries on both sides. Six persons died from the complainant side and one from the accused side. The one who died from the accused side was wife of one of the accused Chandu. She was pregnant at the time of her death as a result of injuries received during the course of the incident in question. The FIR was lodged by PW1 Ayub Khan stating therein that the accused had gone to his field ‘chidiya peer ka khet’ for cutting mustard crop; when he and others found that the accused were putting the crop into the tractor of one Amar Singh, they resented and asked them not to do so which resulted in altercation; accused Chandu fired on deceased Dalmod, Amar Singh also fired a shot on Hakim, Jodh Singh fired at Sahid, Budh fired on Abdul and other accused persons inflicted injuries by pharsi and lathi on the members of the complainant party. The challan was submitted against 16 persons, 13 were committed to court of sessions, the remaining three were tried in juvenile court.
4. The court of sessions while acquitting the 10 accused, on appreciation of evidence, found various material discrepancies in the case of the prosecution and the testimony of the eye-witnesses. 19 witnesses were examined by prosecution out of them 10 were said to be the injured eye-witnesses besides another 11 eye-witnesses as well. The sessions court found that the case as stated in the testimony of the eye-witnesses and genesis of resulting in incident as stated in the FIR was not correct. It was found that the incident did not take place at the field of Ayub Khan but it took place in the field of accused party. It was further found that the accused were not trying to take away the mustard crop of the complainant but complainant party was trying to take away that crop of accused which resulted in the altercation and the free for all shooting incident. Even PW1 was not found reliable and trustworthy to large extent in so far as he implicated accused other than three who were convicted. In respect of three convicted accused also discrepancies were found in the testimony of PW1 but they were held as not material resulting in the order of their conviction by the trial court. That has been the thrust of argument of learned counsel for the state before us as well. It is contended that the trial court rightly relying upon the testimony of PW1 convicted Chandu, Budh Singh and Jodh Singh and their appeal was allowed by the High Court without properly appreciating the evidence and thus the impugned judgment is unsustainable in so far as three accused are concerned. It has been submitted that the High Court has not given reasons or in any case adequate reasons for reversing well considered judgment of court of sessions.
5. The Court of sessions found Chandu guilty of murder of Dalmod, Budh Singh was found guilty of murder of Abdul and Jodh Singh for attempt to kill Sahid.
6. It is no doubt true that conviction can be based on the sole testimony of an interested eye-witness. There is no dispute that the eye-witnesses including PW1 in the present case were all interested parties. There was severe enmity between the complainant group and accused group. There relations were fiercely inimical. The aforesaid rule that the conviction can be based on the sole testimony of an interested eye-witness is subject to the limitation that the testimony of such a witness is trustworthy and consistent and court finds it safe to fully rely upon the deposition of such a witness in regard to the nature of the occurrence and the involvement of the accused. In present case, however, it was prudent to look for corroboration on material particulars.
7. Turning to the facts of the case in hand, the trial court also found that there was enmity between the parties; no independent witness had been examined though the incident was seen by them; the place of occurrence had not been proved; the incident ensued on when complainant tried to take away the crop and not the accused and no explanation was offered for the injuries suffered by 5 members of the accused party, one of whom, namely, Banno w/o. Chandu died as the consequence of the injuries. Besides these discrepancies, it was also found by the trial court that although case of the prosecution was that Chandu shot down Dalmod as also one Kabuli and that was the statement of PW1 but prosecution had failed to establish that Chandu had shot dead Kabuli. It was found that there was no fire arm injury on Kabuli. Therefore, PW1 was not believed to the extent of his deposition that Chandu shot dead Kabuli.
8. The High Court on appreciation of evidence has held that no independent witness had been examined as also that the prosecution had failed to explain the injuries received by the accused persons. What seems to have heavily weighed with the High Court is that the prosecution witnesses in particular the eye-witnesses have been held by the trial court not to be reliable and the facts were so intermingled that it was not possible to separate chaff from the grain and it was unsafe to base the conviction of the three accused on the sole testimony of PW1.
9. To convict the three accused, the testimony of PW1 has to be of sterling worth. Learned counsel for the appellant strenuously urged for their conviction on basis of testimony of PW1. It is no doubt true that six deaths took place from the side of the complainant party but having regard to the evidence it is not possible to hold that the view of the High Court in setting aside their conviction is not a possible view to take having regard to the material discrepancies in the testimony of PW1. His testimony in court is at variance with medical evidence. He is an interested witness. He deposed to have seen the shooting of Kabuli by Chandu that has not been accepted, Kabuli had no fire injury. The very genesis of the start of the controversy as stated in the FIR has not been found to be true. It has been found that it was not the accused party which was taking away the mustard crop of the complainant but it was the complainant party which was trying to take away the crop of the accused, thus doubting the place of occurrence. The investigating officer has been believed by the trial court on the aspect of place of occurrence that was affirmed by the High Court. On all major aspects the prosecution witnesses have been disbelieved. Under these circumstances, the non examination of independent eye-witnesses assumes importance. It also becomes important that the prosecution failed to produce any expert evidence from forensic laboratory to tally the weapon with the bullets. There is no proper explanation for non examination of the expert evidence. The prosecution on these facts ought to have secured the forensic opinion particularly keeping in view the variance in medical and ocular evidence. The corroboration to the testimony of PW1 is absent.
10. Under the aforesaid facts, we find no ground to interfere with the impugned judgment of the High Court. Resultantly, these appeals are dismissed.
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1. These appeals have been filed by the state challenging the impugned order of the High Court whereby the High Court dismissed criminal appeal no. 125/1987 which had been filed by the state to challenge the acquittal of 10 accused by the court of sessions and allowing criminal appeal no. 389/1987 filed by three accused Chandu, Budh Singh @ Buddhu and Jodh Singh wherein they had challenged their conviction and sentence by the court of sessions. In the sessions trial 13 accused were put on trial. Ten of them were acquitted. Their acquittal was subject matter of criminal appeal no. 125/1987 filed by the state. The aforesaid three accused were convicted. First two for offence under section 302, IPC and third – Jodh Singh for offence under section 307, IPC. Chandu and Budh Singh were directed to undergo life imprisonment besides fine of Rs. 1,000/-, Jodh Singh was sentenced to 10 years’ rigorous imprisonment and fine of Rs. 500/-.
2. In these appeals neither serious challenge has been made nor on facts it could be made to the acquittal of 10 accused by the court of sessions as confirmed by the High Court by dismissing criminal appeal no. 125/1987. Thus the short question that requires for consideration is the state appeal challenging the acquittal by the High Court of the aforesaid three accused.
3. The incident in question took place on 20.1.1984 in the afternoon at about 2.30 p.m. There were injuries on both sides. Six persons died from the complainant side and one from the accused side. The one who died from the accused side was wife of one of the accused Chandu. She was pregnant at the time of her death as a result of injuries received during the course of the incident in question. The FIR was lodged by PW1 Ayub Khan stating therein that the accused had gone to his field ‘chidiya peer ka khet’ for cutting mustard crop; when he and others found that the accused were putting the crop into the tractor of one Amar Singh, they resented and asked them not to do so which resulted in altercation; accused Chandu fired on deceased Dalmod, Amar Singh also fired a shot on Hakim, Jodh Singh fired at Sahid, Budh fired on Abdul and other accused persons inflicted injuries by pharsi and lathi on the members of the complainant party. The challan was submitted against 16 persons, 13 were committed to court of sessions, the remaining three were tried in juvenile court.
4. The court of sessions while acquitting the 10 accused, on appreciation of evidence, found various material discrepancies in the case of the prosecution and the testimony of the eye-witnesses. 19 witnesses were examined by prosecution out of them 10 were said to be the injured eye-witnesses besides another 11 eye-witnesses as well. The sessions court found that the case as stated in the testimony of the eye-witnesses and genesis of resulting in incident as stated in the FIR was not correct. It was found that the incident did not take place at the field of Ayub Khan but it took place in the field of accused party. It was further found that the accused were not trying to take away the mustard crop of the complainant but complainant party was trying to take away that crop of accused which resulted in the altercation and the free for all shooting incident. Even PW1 was not found reliable and trustworthy to large extent in so far as he implicated accused other than three who were convicted. In respect of three convicted accused also discrepancies were found in the testimony of PW1 but they were held as not material resulting in the order of their conviction by the trial court. That has been the thrust of argument of learned counsel for the state before us as well. It is contended that the trial court rightly relying upon the testimony of PW1 convicted Chandu, Budh Singh and Jodh Singh and their appeal was allowed by the High Court without properly appreciating the evidence and thus the impugned judgment is unsustainable in so far as three accused are concerned. It has been submitted that the High Court has not given reasons or in any case adequate reasons for reversing well considered judgment of court of sessions.
5. The Court of sessions found Chandu guilty of murder of Dalmod, Budh Singh was found guilty of murder of Abdul and Jodh Singh for attempt to kill Sahid.
6. It is no doubt true that conviction can be based on the sole testimony of an interested eye-witness. There is no dispute that the eye-witnesses including PW1 in the present case were all interested parties. There was severe enmity between the complainant group and accused group. There relations were fiercely inimical. The aforesaid rule that the conviction can be based on the sole testimony of an interested eye-witness is subject to the limitation that the testimony of such a witness is trustworthy and consistent and court finds it safe to fully rely upon the deposition of such a witness in regard to the nature of the occurrence and the involvement of the accused. In present case, however, it was prudent to look for corroboration on material particulars.
7. Turning to the facts of the case in hand, the trial court also found that there was enmity between the parties; no independent witness had been examined though the incident was seen by them; the place of occurrence had not been proved; the incident ensued on when complainant tried to take away the crop and not the accused and no explanation was offered for the injuries suffered by 5 members of the accused party, one of whom, namely, Banno w/o. Chandu died as the consequence of the injuries. Besides these discrepancies, it was also found by the trial court that although case of the prosecution was that Chandu shot down Dalmod as also one Kabuli and that was the statement of PW1 but prosecution had failed to establish that Chandu had shot dead Kabuli. It was found that there was no fire arm injury on Kabuli. Therefore, PW1 was not believed to the extent of his deposition that Chandu shot dead Kabuli.
8. The High Court on appreciation of evidence has held that no independent witness had been examined as also that the prosecution had failed to explain the injuries received by the accused persons. What seems to have heavily weighed with the High Court is that the prosecution witnesses in particular the eye-witnesses have been held by the trial court not to be reliable and the facts were so intermingled that it was not possible to separate chaff from the grain and it was unsafe to base the conviction of the three accused on the sole testimony of PW1.
9. To convict the three accused, the testimony of PW1 has to be of sterling worth. Learned counsel for the appellant strenuously urged for their conviction on basis of testimony of PW1. It is no doubt true that six deaths took place from the side of the complainant party but having regard to the evidence it is not possible to hold that the view of the High Court in setting aside their conviction is not a possible view to take having regard to the material discrepancies in the testimony of PW1. His testimony in court is at variance with medical evidence. He is an interested witness. He deposed to have seen the shooting of Kabuli by Chandu that has not been accepted, Kabuli had no fire injury. The very genesis of the start of the controversy as stated in the FIR has not been found to be true. It has been found that it was not the accused party which was taking away the mustard crop of the complainant but it was the complainant party which was trying to take away the crop of the accused, thus doubting the place of occurrence. The investigating officer has been believed by the trial court on the aspect of place of occurrence that was affirmed by the High Court. On all major aspects the prosecution witnesses have been disbelieved. Under these circumstances, the non examination of independent eye-witnesses assumes importance. It also becomes important that the prosecution failed to produce any expert evidence from forensic laboratory to tally the weapon with the bullets. There is no proper explanation for non examination of the expert evidence. The prosecution on these facts ought to have secured the forensic opinion particularly keeping in view the variance in medical and ocular evidence. The corroboration to the testimony of PW1 is absent.
10. Under the aforesaid facts, we find no ground to interfere with the impugned judgment of the High Court. Resultantly, these appeals are dismissed.
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