Birbal Nath vs The State Of Rajasthan

2023 INSC 957 REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPEALLATE JURISDICTION CRIMINAL APPEAL NO. 1587 OF 2008

BIRBAL NATH …APPELLANT

VERSUS

THE STATE OF RAJASTHAN & ORS. …RESPONDENTS

WITH

CRIMINAL APPEAL NO. 1588 OF 2008

JUDGMENT

SUDHANSHU DHULIA, J.

1. Both the above appeals arise out of the judgment and

order dated 08.08.2007 passed by the Rajasthan High

Court in Criminal Appeal No.976 of 2002, whereby all the

accused who stood convicted by the Trial Court for the

offences under Sections 302, 307, 323, 324, 325, 447, 2

147 /148 read with Section 149 of Indian Penal Code,

were acquitted for the major offences under Sections 302

and 307, and were convicted only for the offences under

Sections 147, 148, 323, 324, 325/149. Their sentences

were also reduced to the period already undergone by

them, which roughly varied from two to five years.

2. The complainant as well as the State have approached

this Court by way of the above two appeals, which were

admitted and leave was granted on 26.09.2008.

3. We have heard learned counsel for the appellant, Dr.

Charu Mathur for the victims and Dr. Manish Singhvi,

learned senior advocate for State of Rajasthan

respectively, as well as senior advocate Mr. Ramakrishan

Veeraraghavan on behalf of the accused-respondents.

4. An FIR was lodged on 22.05.2001 at about 3.00 PM by

complainant-Birbal Nath at Police Station, Pachori,

District Nagaur, Rajasthan which disclosed that at about

1:00 o’clock that afternoon, while the informant’s uncle

‘Chandernath’ and his aunt ‘Rami’ were working in their

agricultural field, seven men, armed with weapons

approached their field. They were as follows :- 3

(1) Jethnath having an ‘axe’ (2) Dhurnath having a ‘dang’ (3) Meghnath having a ‘farsi’ (4) Rughnath having Favda (Shovel) (5) Babunath having a ‘dang’ (6) Malanath having an ‘axe’ and (7) Devnath having a ‘dang’

All the above named accused, who were armed, started

assaulting the aunt and uncle of the complainant-

Birbalnath, in which both were grievously injured.

Jethnath was the first to assault Chandernath with his

axe and the rest joined the attack. Rami was also

attacked, by these assailants. This incident was also

witnessed by Pratapnath, Ramunath, Dhurnath, their

sister-in-law Rampyari, Cheni Devi and Ruparam as they

had reached the spot in a few minutes, who tried to

intervene in the matter and save their relatives, but in

vain. Chandernath died in the ambulance while being

taken to the hospital at Jodhpur. Meanwhile the police

started its investigation, and filed its chargesheet against

all the accused except Devnath in the case. The case was

later committed to the Sessions Court where charges

were framed under Sections 147, 148, 302, 323/149,

324/149, 325/149, 447, 307/149 of the Indian Penal 4

Code against all the six accused, named in the

chargesheet.

5. There were in all 24 witnesses who were examined by the

prosecution. The star eye witness being Rami (PW-2) who

is the wife of the deceased and was herself grievously

hurt in the incident. Apart from her there were other eye

witnesses as well such as PW-3, PW-6 and PW-7 i.e.,

Rampyari, Mohannath, Birbalnath respectively. There was

also recovery of clothes and weapons which was made on

the disclosure of the accused.

6. In their statement under Section 313 of CrPC, all the

accused denied the charges and the evidence against

them and also presented defence witnesses in the form of

– Birmaram (DW-1), Hanutaram (DW-2), Khemaram (DW-

3), Dr. Devkaran (DW-4) and Hukmaram (DW-5).

7. Out of all the prosecution witnesses which were

examined by the prosecution, Rami (PW-2) is the most

important witness, as she was the wife of the deceased

and at the relevant point of time was working in the field,

along with her husband. In addition, this witness had

sustained grievous injuries in the incident, including a 5

near fatal injury on her head and therefore the testimony

of this particular witness is the most credible evidence

produced by the prosecution before the Trial Court. The

examination-in-chief and cross examination of Rami was

done before the Trial Court on 27.11.2001. She was

cross examined at length by the defence, but nothing has

come out in the cross examination, except minor

discrepancies. These discrepancies as we shall be

examining later do not discredit the witness as has been

held by the High Court. The social background and the

overall surrounding circumstances of the case are

important considerations for the court while examining a

witness, which has not been done. The High Court, as

we shall see, has relied on these discrepancies, while

acquitting the accused of the charges under Sections 302

& 307.

8. In her examination-in-chief PW-2 consistently held the

position that she and her husband were working on their

field, and each of the accused was armed with either

‘axe’, ‘farsi’ or other weapon and that they were seven in

number, who assaulted her and her husband. It was 6

Jethnath who attacked on head with axe, Meghnath with

‘fawda’, Dhurnath with ‘dang’ on the head of her

husband, Raghunath assaulted him with ‘fawda’ 1,

Malanath attacked her husband with an axe, as did

Raghunath and Babunath. All of them had attacked her

as well, and as a result she sustained injuries on her

head, left hand, right hand, joints and legs. Her husband

too had injuries on his head, hands and legs. His hand

and legs were fractured. When she raised an alarm,

Pratapnath, Rampyari, Cheni, Ramnath, Birbalnath,

Dudhnath, Purkharam and Ruparam came running to

the spot and tried to save them. Chandernath her

husband died on the way to the hospital at Jodhpur. She

(PW-2) was given medical treatment and was examined by

a doctor.

9. Rampyari (PW-3) who is again a witness to the incident

states that on the fateful day at about 1.00 o’clock in the

afternoon she heard someone crying for help. She

recognised the voice of Rami and Chandernath and then

she immediately ran towards the field. Chena, Birbalnath,

1 Shovel 7

Dudhnath and Purkharam were also with her. They saw

Jethnath, Dhumnath, Meghnath, Rughnath, Babunath,

Malanath and Devnath, all armed with either axe, farsi,

dang and “fawda”. They were all attacking Chandernath.

On seeing them the accused ran away from the spot.

They saw Chandernath lying on his belly and was

bleeding, and so was Rami. There were injuries on her

head and ear.

10. Dr. Ramvilas who was examined as (PW-4) confirmed that

the deceased died due to injuries particularly the injuries

sustained on his head. Apart from Rami (PW-2) and

Rampyari (PW-3) there are other eye witnesses as well

(PW-6 and PW-7), who had reached the spot after they

heard an alarm raised by Rami. The ‘site plan’ shows

that the “chapper” of these witnesses is nearby and hence

the fact that these witnesses were in the neighbourhood

was rightly held by the Trial Court, and their presence

seemed natural.

11. PW-6 and PW-7 had again made similar depositions as

PW-3, being in the neighbourhood at the time of the

incident. Though it may be doubtful whether they had 8

witnessed the entire sequence of events, yet they had

definitely seen the assailants fleeing from the place of

occurrence. These are also important witnesses though

the High Court has said nothing on their deposition.

12. The post mortem of the body was conducted on

23.05.2001. The post mortem report shows the following

ante mortem injuries:

“(i): Lacerated wound in the size of 1 ½” X ½” bone deep over the left parietal region of scalp. There is depressed podium of left parietal bone.

(ii): Lacerated wound in the size of 1” X ¼” bone deep over right parietal region of scalp. There is puncture/fracture of right parietal bone.

Pupils = Dilated, haggy.

(iii): Lacerated wound in the size of ¾” X ¼” bone deep over occipital region of scalp. There is puncture of occipital bone on skull.

(iv): Lacerated wound in the size of ½” X 1/8” bone deep, huge contusion over upper part of left leg. There is fracture of upper 1/4th portion of tibia and fibula bone.

(v): Lacerated wound in the size of ½” X ¼” deep to bone and quitesome swelling had developed near at the wound. This wound was in the lower left leg. There was fracture in lower end of tibia and fibula bones.

9

(vi): Swelling in medium size had developed towards the upper side of the right hand and therein there was fracture of first meta-carpal bone.

…..

…..

In my opinion, cause of death of Chander Nath s/o Gopunath is Head-Injury and brian haemorrhage.”

13. The injuries sustained by Rami as per her injury report

dated 22.05.2001 is as follows:

1. Incised wound in the size of 2 ½" x ½" x bone deep, deep/over anterior portion of scalp trans-

vertically placed, simple in nature; Advised for X-Ray Report, by Sharp weapon.

2. As defined swelling on right arm upto shoulder; advised for X-ray, simple in nature, by blunt object.

3. Bruise in the size of 1 ½" x ½" over lower part of left thigh, lower side, simple in nature, by blunt object.

4. Bruise in the size of 1 ½" x ½" on middle of left arm laterally, simple in nature, by blunt object.

5. Bruise in the size of 4" x 1" over lower back, simple in nature, by blunt object.

14. The Trial Court convicted all the accused under Sections

302, 323, 324, 325, 147, 148, 447 read with Section 149

of Indian Penal Code, and sentenced them inter alia for

rigorous imprisonment for life. Jethnath, Dhurnath and 10

Meghnath in addition were also convicted under Section

307 of IPC.

15. The accused filed an appeal before the High Court which

was partly allowed, as discussed above.

16. The statement given by PW-2 before the Police under

Section 161 Cr.PC, during investigation were relied by the

defence in order to contradict the witness as to her

statement in her examination-in-chief. The witness in her

earlier statement before the police, had said that the

accused Jethnath was working on his adjacent field and

he had some altercation with the deceased regarding

their boundary in which heated arguments were

exchanged between the two. Jethnath, then, raised an

alarm which resulted in his sons and relatives coming to

the spot, who were all armed with weapons. It is true that

this fact of Jethnath working in the field and the

altercation she did not state in her examination-in-chief.

The High Court thus finds a discrepancy in the statement

of PW-2 made under section 161 Cr.PC and her

examination-in-chief, which it believes to be sufficient to

discredit this witness.

17. As we have already stated this particular witness i.e. PW-

2 is an injured witness and wife of the deceased, who has 11

given her clear and unambiguous statement in her

examination-in-chief and though she was cross-examined

at length this witness stood her ground. Moreover, it is

her husband who has been killed by the assailants. Why

should she be accusing wrong persons? The High Court

discredits the star witness of the prosecution due to her

so called discrepancies between her statement under

Section 161 Cr.PC and in her examination-in-chief. It

then holds that it was not a pre-meditated attack at all

and therefore no case of common intention or common

object of unlawful assembly is made out nor will it be a

case for Section 302 or 307. This is what was said :--

“First and foremost , the question which we require to look into is whether the beginning of the story, as given by the prosecution, is reliable or not. According to the eye witness' account the accused arrived at the scene of occurrence and they assaulted the deceased on his head and he fell down by the head injuries caused by Jeth Nath and then the other accused persons caused injuries. Jeth Nath having been assigned an axe and there being no axe injury, the beginning of the story as given by the prosecution witness, PW/2 Rami injured eye witness, does not appear to be correct.

In that view or the matter, if we consider the contradiction in her statement that in her police statement she has stated that things started with the handling or the thorn fencing on the boundary wall, it was a case where both the parties got enraged on the spur of the moment and there was no pre-

12 meditation . If there was no pre-meditation, then there was no pre-motive to kill the deceased before the incident started, then it is difficult to conclude that there was a common object to eliminate the deceased. If there was no common object then conviction under sections 302/149 IPC is not made out and in that view of the matter, the conviction and sentence of accused persons deserves to be set aside.”

18. Statement given to police during investigation under

Section 161 cannot be read as an “evidence”. It has a

limited applicability in a Court of Law as prescribed 13

under Section 1622 of the Code of Criminal Procedure

(Cr.P.C.).

19. No doubt statement given before police during

investigation under Section 161 are “previous statements”

under Section 145 of the Evidence Act and therefore can

be used to cross examine a witness. But this is only for a

limited purpose, to “contradict” such a witness. Even if

the defence is successful in contradicting a witness, it

would not always mean that the contradiction in her two

statements would result in totally discrediting this

witness. It is here that we feel that the learned judges of

the High Court have gone wrong.

20. The contractions in the two statements may or may not

be sufficient to discredit a witness. Section 145 read

with Section 155 of the Evidence Act, have to be carefully 2 14

applied in a given case. One cannot lose sight of the fact

that PW-2 Rami is an injured eye witness, and being the

wife of the deceased her presence in their agricultural

field on the fateful day is natural. Her statement in her

examination in chief gives detail of the incident and the

precise role assigned to each of the assailants. This

witness was put to a lengthy cross examination by the

defence. Some discrepancies invariably occur in such

cases when we take into account the fact that this

witness is a woman who resides in a village and is the

wife of a farmer who tills his land and raises crops by his

own hands. In other words, they are not big farmers. The

rural setting, the degree of articulation of such a witness

in a Court of Law are relevant considerations while

evaluating the credibility of such a witness. Moreover, the

lengthy cross examination of a witness may invariably

result in contradictions. But these contradictions are not

always sufficient to discredit a witness. In Rammi v.

State of M.P. (1999) 8 SCC 649, this Court had held as

under:

15

“24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non- discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.”

In the same case, how far a contradiction in the two

statements can be used to discredit a witness has also

been discussed.

“25. It is a common practice in trial courts to make out contradictions from the previous statement of a witness for confronting him during cross-examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the section is extracted below:

“155. Impeaching credit of witness.—The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him— (1)-(2)*** (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;”

26. A former statement though seemingly inconsistent with the evidence need not 16

necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be “contradicted” would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross-

examiner to use any former statement of the witness, but it cautions that if it is intended to “contradict” the witness the cross-examiner is enjoined to comply with the formality prescribed therein. Section 162 of the Code also permits the cross-examiner to use the previous statement of the witness (recorded under Section 161 of the Code) for the only limited purpose i.e. to “contradict” the witness.”

21. In Tahsildar Singh v. State of U.P., AIR 1959 SC

1012, it was held that to contradict a witness would

mean to “discredit” a witness. Therefore, unless and until

the former statement of this witness is capable of

“discrediting” a witness, it would have little relevance. A

mere variation in the two statements would not be

enough to discredit a witness. This has been followed

consistently by this Court in its later judgment, including

Rammi (supra). Moreover, in this case the High Court

lost sight of other more relevant factors such as the

witness being an injured eye witness.

22. The purpose of the cross examination of a witness in

terms of Section 145 and 155 of the Evidence Act is to

bring contradictions in the two statements of the witness,

in the case at hand, one given to police under Section 161 17

Cr.PC., and the other given before the court. Even

assuming for the sake of argument that there is a

difference in the two statements of PW-2 as she

evidently does not disclose in her examination-in-chief

that Jethnath was also working in the adjacent field and

there was altercation between the two, this may discredit

the witness only so far as the beginning of the incident;

how it started. The fact that the incident happened is not

in doubt. The offenders were the accused is also not in

doubt. There is no doubt that the incident took place,

which resulted in one death and grievous injuries to

another. It may not have happened exactly as narrated by

PW-2, yet for this discrepancy the entire testimony of PW-

2 cannot be discarded.

23. The so called injuries sustained by two of the assailants,

Meghnath and Jethnath, were again relied upon by the

High Court to reach a finding that this case could be the

case of free fight between the two parties which was not

pre-meditated particularly where both sides had

sustained injuries!

24. In our opinion, the High Court has given undeserved

credit to the evidence placed by the defence in this 18

regard. The Trial Court on the other hand had examined

this aspect in detail and ultimately did not find the

evidence placed by defence as credible. It is not very

difficult for us to appreciate why this was done. To prove

that the accused too had sustained injuries in the

incident, the defence had produced DW-4 Dr. Devkaran

as their witness. This witness is a Government Doctor,

and was under suspension at the time of his deposition,

and from his own statement before the Trial Court this

was so because he was charged of giving a post mortem

report, though he had not conducted any post mortem.

So much for the credibility of this witness. He was cross

examined by the prosecution as to the overwriting and

mistakes in his medical report. He denies having made

the changes in the report. The Trial Court held that the

medical report of this witness (DW-4) to be “suspicious”,

for the reasons that there was no explanation as to how

the two accused had sustained these injuries. The only

proof of injuries suffered by Jethnath was that there was

a mention of these injuries in his arrest memo, when it

was mentioned as ‘abrasion on hand’. This the Trial 19

Court rightly held could be caused due to the force this

assailant had exerted in attacking the deceased.

Moreover, the injuries were in any case simple in nature.

25. The High Court, though examines this aspect in a totally

different perspective. It has magnified simple, doubtful

and totally unexplained injuries of the accused and has

belittled the brutal and murderous attack on PW-2 and

her deceased husband, and most importantly expressed

serious doubt on the testimony of an injured witness, i.e.,

PW-2. This approach of the High Court in our considered

opinion was not correct.

26. The High Court has gone wrong in its appreciation of the

case, both on facts as well as on law. The statement of an

injured eye-witness is an important piece of evidence

which cannot be easily discarded by a Court. Minor

discrepancies do not matter. In State of M.P. vs.

Mansingh and Others (2003) 10 SCC 414 where

conviction of the accused by the trial court, inter alia,

under Section 302, was set aside by the High Court on

the so called discrepancies of an injured witness this 20

court while allowing the State’s appeal against the

acquittal said this :

“9. The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. Merely because there was no mention of a knife in the first information report, that does not wash away the effect of the evidence tendered by the injured witnesses PWs 4 and 7. Minor discrepancies do not corrode the credibility of an otherwise acceptable evidence. The circumstances highlighted by the High Court to attach vulnerability to the evidence of the injured witnesses are clearly inconsequential.”

27. The reasons assigned for disbelieving the statement of

PW-2 by the High Court are not correct. The High Court

discredits the statement of PW-2 because of the

discrepancies in her earlier statement given under Section

161 Cr.P.C., and the one given in her examination-in-

chief. This as we have already discussed was not

sufficient to totally discredit an injured eye witness.

Apart from this eye-witness, there were other eye-

witnesses as well, which we have referred above. Further,

there is also the recovery made of the weapons and the

blood-stained cloth of the accused. There is nothing to

doubt either the recovery or the manner in which the

recovery has been made. The conclusion derived by the 21

High Court that the assailants were not having common

intention or common object of killing deceased

Chandernath is not entirely correct.

28. The grounds for acquitting the accused under Section 302

& Section 307 of IPC were mainly based on the

presumption that it was not a pre meditated attack,

rather it was a clash between two groups, where both

were somewhat armed, which resulted in injuries on both

sides, though somewhat larger injuries and a death, on

the side of the complainant. This determination of the

High Court is based on primarily on two aspects, first

that the assailants too had sustained injuries and

secondly the discrepancies in the evidence of PW-2.

29. As far as the injuries sustained by some of the accused is

concerned this could never be proved in the trial. DW-4

who was produced as a witness stood thoroughly

discredited and rightly so, as we have discussed in the

preceding paragraphs. As to the so-called discrepancies

in the statement of PW-2 we are again of the view that

this witness is an injured eye witness and therefore her

evidence cannot be completely disregarded. 22

30. Having said this, however, we are also of the opinion that

the possibility of the incident not being premeditated,

cannot be totally disregarded, considering the overall

‘circumstances’ of the case, as urged before us and even

considering the contradictions in the two statements of

PW-2. We do not discredit the evidence of PW-2. She is a

reliable witness. But only to the extent of what led to the

incident, we are inclined to grant a limited benefit to the

accused but not like the one given by the High Court. We

are of the opinion that this case is of culpable homicide

not amounting to murder, and not of murder. There were

contradictions in the two statements of PW-2 as we have

discussed in the preceding paragraphs. These

contradictions, however, are not enough to completely

discredit this witness. All the same, these contradictions,

in the given fact of the case, do give a benefit of doubt to

the accused as to the case of premeditated attack of the

prosecution. In our opinion, therefore the attack would

come under Exception 4 to Section 300, the attack not

being premeditated, but was, “in a sudden fight in the

heat of passion upon a sudden quarrel and without the 23

offender having taken undue advantage or acted in a

cruel or unusual manner.”

31. Both the appeals are allowed and the order of the High

Court dated 08.08.2007 is liable to be set aside and is

hereby quashed. As far as the order of the Trial Court is

concerned, we convert the findings of Section 302 to that

of Section 304 part I IPC, and that of Section 307 to

Section 308 IPC. We sentence each of the accused for

seven years of rigorous imprisonment (R.I.) under Section

304 part I IPC and three years of rigorous imprisonment

under Section 308 IPC. The remaining findings and

sentences awarded by the Trial Court shall remain.

32. Out of the six accused, we have been informed that

Jethnath has passed away. The case against him

therefore stands abated. The remaining accused shall

surrender before the Court concerned within four weeks

from today, from where they shall be sent to prison to

carry out the remaining sentence. Bail bonds, if any, shall

stand discharged. The period of sentence already

undergone by the accused shall be adjusted from the

sentences presently awarded. All sentences will run 24

concurrently. Let a copy of this order be sent to the

concerned court for onward compliance of our orders.

……..............................J. [SANJAY KISHAN KAUL] .

…….............................J. [SUDHANSHU DHULIA]

New Delhi, October 30, 2023.