STATE OF RAJASTHAN versus BHAWANI AND ANR.

Citation: [2003] SUPP. 1 S.C.R. 996 · Decided: 31-07-2003 · Supreme Court of India · Bench: S. RAJENDRA BABU · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
ST A TE OF RAJASTHAN 
v. 
BHA WAN! AND ANR. 
JULY 31, 2003 
[S. RAJENDRA BABU, K.G. BALAKRISHNAN AND 
G.P. MATHUR, JJ.] 
Penal Code, 1860/Arms Act, 1925-Sections 146, 302, 307 and 448/ 
C Section 3125-Prosecution for death of two and injuries to several persons 
caused by fire arms-Prosecution case supported by 11 witnesses-5 of the 
witnesses injured eye-witnesses-Their evidence corroborated by medical 
evidence-6 of the witnesses turned hostile-Conviction by Trial Court--
Acquittal by High Court relying on the hostile witnesses and site plan prepared 
by investigating officer-On appeal held: Prosecution has succeeded in 
D establishing its case beyond any shadow of doubt-Testimony of fwe injured 
witnesses sufficient to establish charge against the accused-Order of High 
Court liable to be set aside on account of infraction of Section 386 Cr.P.C. 
and the reliance on the site plan which is hit by Section 162 Cr.P.C.-Code 
of Criminal Procedure, 1973-Sections 162 and 386. 
E 
According to prosecution, respondents 1 and 2 and three others 'K', 
'R' and 'A' each armed with gun and country made pistol reached the 
Nohara of PWl and started firing with their respective weapons. Some 
other persons, armed with lathis and farsies were standing outside the 
No hara. As a result of firing two persons died and several others received 
p gunshot injuries. FIR was lodged and after investigation charge-sheet was 
submitted against 35 persons. Accused 'K', 'R' and 'A' were not 
prosecuted as they had absconded. During trial 11 witnesses supported 
prosecution case. Out of the 11 witnesses 5 were injured eye-witnesses. 6 
of the witnesses had turned hostile. Trial Court held that it was proved 
beyond doubt that respondent-accused alongwith accused 'K', 'R' and 'A' 
G had formed an unlawful assembly and in prosecution of their common 
object had trespassed into the Nohara and had caused death of the 
deceased and gunshot injuries to others. Respondents were convicted under 
Sections 148, 307, 302 and 448 IPC and respondent No. I was further 
convicted under Section 3/25 of Arms Act. 1925. Remaining accused 
H 
996 
ST A TE OF RA.IASTHAN v. BHA W ANI 
997 
alleged to have been standing outside the Nohara, not having been assigned A 
any specific role of causing any injury were acquitted. 
On appeal, High Court acquitted the respondent-accused relying on 
the hostile witnesses. It held that there was cross firing, that according to 
the site plan prepared by the Investigating Officer the place from where 
firing was alleged was not possible; and that recovery of empty cartridges B 
of a 303 bore pistol rendered the prosecution case doubtful because 
according to eye-witnesses, none of the accused had 303 revolver. 
In appeal to this Court appellant-State contended that High Court 
did not properly appreciate the evidence of eye witnesses. Respondent- C 
accused contended that on the evidence available on record two views were 
possible, and High Court, on appraisal of evidence found prosecution case 
to be doubtful, therefore this Court should not interfere in an appeal 
against acquittal. 
Allowing the appeal, the Court 
D 
HELD: 1. The judgment of the High Court is wholly illegal and 
perverse. It is not a case where two views are possible. In fact, on the 
evidence available on record, the only conclusion which can be drawn is 
that the prosecution had succeeded in establishing its case beyond any E 
shadow of doubt and accused-respondents are clearly guilty of the charges 
levelled against them. (I007-D-El 
2. In a murder case based upon direct eye-witness account, it is 
absolutely necessary to thoroughly examine the testimony of the eye-
witnesses in order to ascertain whether they had really seen the occurrence F 
and whether the statement given by them appears to be natural and 
truthful and finds corroboration from the medical evidence on record. In 
the present case I I eye-witnesses have fully supported the prosecution case. 
Out of these I I witnesses 5 were injured witnesses who had received 
serious gunshot injuries. Their presence on the spot, therefore, cannot be 
doubted in any manner. These witnesses have consistently stated that 5 G 
persons namely the two respondents, 'K', 'R' and 'A' came inside Nohara 
and repeatedly fired from the weapons which they were carrying. 
According to the eye-witness account the deceased received gunshot 
injuries and died on the spot. The i_njuries sustained by these persons 

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