RAITANLAL v. STATE OF JAMMU AND KASHMIR

Citation: [2007] 4 S.C.R. 1029

Court: Supreme Court of India

Bench: S.B. SINHA, MARKANDEY KATJU

Case summary

RAITANLAL v. STATE OF JAMMU AND KASHMIR.pdf

Judgment text

,.. ,. RAITANLAL v. STATE OF JAMMU AND KASHMIR APRIL 10, 2007 [S. B. SINHA AND MARKANDEY KATJU, JJ. ] * Ranbir Penal Code: s. 302-Trial Courtfound inconsistencies in evidence and ordered acquittal-High Court reversed order of acquittal-On appeal, held judgment oftrial Court not a view which was not possible to be taken- High Court not considered matter in proper prospective-Acquittal upheld ·' The accused and complainant party were not on talking terms. Accused party felt that opposite party had spread rumour in the village that appellant was having relations with the wife of his brother 'K'. Appellant, his brother 'K' and father SD came to the house ofcomplainant. Appellant asked PW-S, son of deceased to come out and talk to 'K'. PW-S his father deceased, ~ complainant and PW-R came. out. K asked PW-S as to why they were creating problem and gave drat below·on forehead. Deceased came to his rescue. 'SD' exhorted appellant to kill deceased who gave Khukri blow.

Appellant's father 'D' also gave a latbi blow. Within an hour, oral report was given to police post and copy was sent to Police Station where FIR was registered. Deceased and injured were medically examined and then taken to hospital where be died. Large number ofwitnesses appeared as PWS. Trial Court found the case full of inconsistencies and acquitted the accused persons. High Court reversed the judgment holding appellant guilty u/s. 302 R. P. C. , 'K' u/s. 324 RPC and SD u/s. 323 IPC. Only appellant appealed before this Court. .. ,. Allowing the appeal, the Court HELD: 1. First Information Report, according to the prosecution, was recorded at 09. 30 p. m. on the same day. The Investigating Officer, allegedly also recorded the statement of the first informant on the said day. There are some inconsistencies in this behalf. [Para 9] (1033-G] 2. In regard to the arrest of the accused also, there appears to be some , Whereas PW Dr.

Anayat Ullah Sheikh Assistant Professor Medical College, who conducted the autopsy on the dead body of Santosh Kumar found the following injuries : l. A 2cm abrasion with fresh scab on the nose in its upper third region with fracture of the bones underneath; 2. A lacerated wound on the occipital region with extra vacation of blood on the occipital region ofscalp. 112' diameter depressed fracture of occipital bone. '" -+-/ 26. In the post-mortem certificate, Injury No. 2 was shown to be 1 " depressed fracture ofbones. Dr. R. K. Gupta had not given any opinion to the police in regard thereto. He could not say as to the said injury could have been caused by the assailant upon the deceased with what type of weapon. The 'Khukhri' was shown to him to which he stated that injury could be caused by it, whereas Dr. Inayat Ullah Sheikh categorically stated that injury no. 2 could only be possible by using a blunt object with a striking surface in the measurement of=" in diameter e. g. hammer.

In regard to injury no. 1, his opinion was that the same could be possible by a fall or striking on hard surface. + 27. The learned Trial Judge also took serious note ofthe fact that report ofthe X-Ray taken by the Radiologist had not been brought on records. Even the sky-gram of the deceased had not been produced. The court, thus, was deprived of an opportunity from con:>idering a part of the medical evidence. An adverse inference was rightly drawn by the learned judge as no explanation was therefor was offered. The learned Trial Judge furthermore wondered as regards the truth in the prosecution case as disclosed by one ofthe prosecution witnesses, namely, Harbans Lal, who had stated that son of deceased had informed him that he was assaulted by someone. If the prosecution case is to be accepted, the names of the assailants were known to the deceased as also his son.

No independent witnesses like Numberdar and Chowkidar was examined to prove disclosure statement ofthe accused persons and consequent recovery of the weapons of the offence. The learned Trial Judge furthermore noticed that non-examination of the Investigating Officer had seriously prejudiced the defence. 28. In Samghaji Hariba Patil v. State ofKarnataka, [2006] 10 SCC 494, this Court held : -"we have noticed hereinbefore that the High Court has taken a contrary view. Had the High Court been the first court, probably its view could have been upheld, but it was dealing with a judgment of acquittal. We have taken notice of the depositions of the main prosecution witnesses only to show that the view of the learned Trial Judge cannot be said to be perverse or the same was not possible to be taken. While dealing with a case ofacquittal, it is well known, the High Court shall not ordinarily overturn a judgment if two views are possible" [See also Kal/u alias Masih and Ors. v. State ofMP.

, [2006] 10 SCC 313; Chandrappa & Ors. v. State ofKarnataka, (2007) 3 SCALE 90 and Swami Prasadv. State ofMadhya Pradesh, (2007) 4 SCALE 181, Paras 26 and 27]. 29. We, therefore, are of the opinion that the judgment of the learned Judge cannot be said to be a view which was not possible to be taken. 30. Unfortunately, all these aspects ofthe matter had not been considered by the High Court in their proper perspective. i 31. We, therefore, are ofthe opinion that the impugned judgment cannot be sustained, which is set aside accordingly. The appeal is allowed. Appellant shall be released forthwith, if not required in any other case. D. G. Appeal allowed. -+ )