LexBHERU LAL & ORS. versus STATE OF RAJASTHAN
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[2009] 13 (ADDL.) S.C.R. 212 A BHERU LAL & ORS. v. + STATE OF RAJASTHAN (Criminal Appeal No. 898 of 2004) AUGUST 10, 2009 B [V.S. SIRPURKAR AND J.M. PANCHAL, JJ.] PENAL CODE, 1860: ~ c ss. 302134 and 436134 - Two sons of complainant murdered and property set on fire by accused - Conviction by trial court upheld by High Court - HELD: Pleas of accused regarding interested witness, non-explanation of injuries on one of the accused, and right of private defence were rightly D rejected by courts below - Injuries on accused, being t- extremely insignificant, and defence witnesses found unbelievable, did not require any explanation from prosecution - From the evidence of the mother of deceased, recovery of blood stained articles and clothes it has been fully E established that accused committed the offences ..: Right of ;- private defence - Evidence. EVIDENCE: Testimony of interested witness - In a trial for murder of .. F two brothers, testimony of their mother as the sole eye witness - Challenged by accused as evidence of interested witness - HELD: Testimony of the witness about assault by accused on her sons has totally gone unchallenged in cross- examination - Merely because a witness exaggerates or is G an interested witness, the evidence cannot be thrown out. APPEAL -¥ Appeal against acquittal - High Court in appeal acquitting one of the accused convicted by trial court - HELO: H 212 -\ BHERU LAL & ORS. v. STATE OF RAJASTHAN 213 + High Court has taken a possible view and there cannot be any A interference as it has not been shown that acquittal of the said accused is unsustainable or perverse. The three appellants along with four others faced trial for commission of offences punishable ulss. 147, 148 and B 302 read with s.149 IPC. The prosecution case was that the accused killed two sons of PW-7. Accused 1 and 3 attacked her son "5" with sword and accused 4 and accused 5 attacked her other son "D" with sword and spear. Accused 1 and 6 crushed the heads of the c deceased with stones. Thereafter, A-1, A-3 and A-5 set on fire her tractor trolly and stack of onion and groundnut. The trial court convicted A-1 and A-3 to A-6 of the offences charged. On appeal, the High Court acquitted A- 6; convicted and sentenced A-1 uls.302 IPC and uls.436 D read with s.34 IPC. The remaining three accused were convicted and sentenced u/s.302 read with s.34 and s.436 read with s.34 IPC. In the appeal filed by A-1, A-3 and A-5 it was, inter alia, contended for the appellants that PW-7 was an E interested witness and, therefore, the courts below erred in relying upon her evidence; and that the accused acted in exercise of their right of private defence. The State filed petition for special leave against acquittal of A-6. Dismissing the appeal as also the petition for special F leave, the Court HELD: 1.1. PW-7, the mother of the deceased, claimed to have seen the incident from some distance, and has graphically described the role played by the G 'f- appellants-accused-1, 3 and 5. According to her, A-1 had given a sword blow on the neck of 'S' and A-3 gave a sword blow on his hand, while A-4 gave a blow with a sword on the neck of '8' and A-5 hit '8' with Ballam. She then described that A-1 pelted stones on them and the H 214 SUPREME COURT REPORTS [2Q09] 13 (ADDL.) S.C.R. A other accused persons also stoned them, as a result of which their heads were crushed. She has thereafter said that even she was followed up to the house and thereafter, the accused persons set articles in her house and tractor on fire. There could hardly be any doubt B regarding the presence of this witness on the spot. Significantly enough, there is no cross-examination in respect of the incident and v~rsion of PW-7 about the assault by the accused on her sons and the same has totally gone unchallenged. About the gun and the katta c being found near the body, the witness has specifically refuted the suggestion that the deceased persons had gone there with an idea to assault the accused persons. She also refuted the suggestion that village persons had given beating to her sons. [Para 7 and 8] [221-D-H; 222- D 8-C-F; 223-A] 1.2. There can be no doubt that PW-7 has exaggerated, but those exaggerations have been rightly ignored. She was deposing about the assault on her sons and as such, she certainly would not be interested in E allowing the real culprits to go unpunished.
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