Rajjan Chamar; State of U P vs State of U.P.; Ramakant and others

Vijay Kumar Verma, J.

Challenge in these appeals is to the judgment and order dated 5.4.2006 passed by Sri S.K. Samadhiya, the then Sessions Judge Hamirpur, in S.T. No. 161 of 2003 (State v. Ramakant and others), whereby after acquitting the respondentsaccused Ramakant, Chhotey, Smt. Jai Devi and Smt. Munni Devi of the offences under sections 148, 302 and 307 both read with section 149 of Indian Penal Code (in short ''the IPC''), and further acquitting the appellantaccused Rajjan Chamar of the offences under sections 148 and 307 read with section 149 IPC, in Case Crime No. 58/2002 of P.S. Kurara (Hamirpur), he has been convicted and sentenced to death sentence under section 302 IPC and imprisonment for life and to pay a fine Rs. 50,000/ under section 326 IPC with further imprisonment for one year in default of payment of fine. Out of the amount of fine, Rs. 40,000/ have been paid as compensation to the victim injured Smt. Ramwati w/o deceased Maiyadeen.

Capital sentence reference in terms of section 366 of the Code of Criminal Procedure (in short ''the Cr.P.C.) has been sent by the Trial Court for confirmation of death sentence.

The incident resulting in the death of Maiyadeen s/o Maiku Chamar r/o Kutubpur, P.S. Kurara, District Hamirpur and causing injuries to his wife Smt. Ramwati (P.W.2) occurred on 12.4.2002 at about 5.00 p.m. in the field of deceased, situated in the jungle of village Kutubpur. First information report regarding that incident was lodged by P.W.1 Bhaiya Lal, uncle of the deceased, on the same day at 8.05 p.m. at P.S. Kurara, where a case under sections 147, 148, 307, 302/34 IPC was registered against Chhotey and Rajjan both sons of Sukhaiya, Smt. Jai Devi w/o Chhotey, Smt. Munni Devi w/o Rajjan and soninlaw of Rajjan, resident of Kusmara P.S. Kurara (Hamirpur). The case of the prosecution as appearing from the chik FIR Ext. Ka 12, in brief, is that on 12.4.2002 the deceased Maiyadeen and his wife Smt. Ramwati were harvesting their crop in the field situate in Karahi Haar. At about 4.005.00 p.m. the deceased was collecting harvested crop and Smt. Ramwati was giving food to her children. The accused persons also had harvested their crop in the field situate near the field of Arun Singh. Bhaiya Lal P.W.1 was collecting dry bracts of wheat in the field of Arun Singh. All of a sudden, the accused Ramakant having axe and accused Chhotey, Rajjan, Smt. Jai Devi and Smt. Munni having sickles in their hands came in the field of deceased Maiyadeen and began to cause marpeet with him by their respective weapons and caused serious injuries to him. When Smt. Ramwati rushed to save her husband, she was also assaulted by the accused persons by sickles and axe, due to which she also sustained serious injuries. Maiyadeen succumbed to the injuries instantaneously. When Smt. Ramwati raised noise, her uncleinlaw Bhaiya Lal and other persons working in nearby fields came on the place of incident, and when they challenged the accused persons, they fled away. When Bhaiya Lal reached near Maiyadeen, he saw that he had died and Smt. Ramwati was lying unconscious.

Leaving the dead body of Maiyadeen in the field in supervision of family members and carrying the injured Smt. Ramwati, the complainant Bhaiya Lal went to P.S. Kurara, where he handed over written report Ext. Ka 1, which was scribed by Kamal Singh (P.W.4). On the basis of this written report, chik FIR Ext. Ka 12 was prepared by the then head moharrir Shyam Swaroop (P.W.8), who registered a case on 12.4.2002 at 8.05 p.m. under sections 147, 148, 307, 302/34 IPC at Case Crime No. 58/2002 against all the five accused named above and made entry regarding registration of the case in G.D. No. 130 at the same time vide Ext. Ka 13.

After registration of FIR, Smt. Ramwati was sent to Primary Health Centre Kurara, from where she was referred to District Hospital Hamirpur, where she was medically examined by Dr. Prem Kumar Gupta (P.W.6) on 12.4.2002 at 11.00 p.m. According to the injury report Ext. Ka 4, the following injuries were found on the person of injured Smt. Ramwati:

Incised wound 2.5 cm x 1 cm x muscle deep oblique in direction present on the meddle of the left eye brow. The left upper @ lower eye lids are swoolen. On opening the eyelids the blood clots are present. Detailed examination of the eye could not be done because of pain & bleeding from left eye & will be done by eye surgeon in operation theature under Anaesthesia. K.U.O. Margins are clean cut & everted.

Incised wound 0.7 crn x 0.3 cm x muscle deep present just below the left lower eye lid. Blood clot present. The margins of the wound are clean cut & everted.

Incised wound 2 cm x 1 cm x Tarsal plate deep oblique in direction present over the right upper & lower eye lids. The eyelids are swollen. Blood clot present. K.U.O.

Incised wound 5 cm x 1.5 cm x Bone deep oblique in direction present on the posterior surface of the left elbow joint. The margins of the wound are clean cut everted. Blood clot present. K.U.O.

Injury Nos. 1, 3 & 4 were kept under observations. According to Dr. Gupta all the injuries were fresh in duration and were caused by some sharp edged weapons.

P.W.7 Ayodhya Prasad Mishra was posted as Station Officer at Police Station Kurara. He himself started the investigation and after recording the statements of Bhaiya Lal and Smt. Ramwati at Police Station, he along with other police personnel went to the place of incident, where he conducted inquest proceeding on the dead body of deceased Maiyadeen on 12.4.2002 in between 9.30 p.m. to, 11.30 p.m, during which inquest report Ext. Ka 3 and other connected papers photo lash, challan lash, letter of RI and letter of CMO Ext. Ka 5 to Ext. Ka 8 respectively were got prepared by P.W.4 Constable Balvir Singh and thereafter, the dead body in sealed condition was sent through constable Harish Chandra and Home Guard Yogendra Nath Tewari for postmortem examination, which was conducted by Dr. V.K. Srivastava, P.W.3, on 13.4.2002 at 3.00 p.m. According to the postmortem report Ext. Ka 2, the following ante mortem injuries were found on the, person of the deceased:

Incised wound 15 cm x 2.5 cm x brain tissue deep on the right side of back of scalp in down upward direction 1.5 cm behind right ear Brain tissue coming out.

Incised wound 5cm x 1 cm x bone deep on the right side of scalp place Antero posteriorly 9 cm above right ear.

Incised wound 7 cm x 1.5 cm J brain tissue deep, placed horizontally on the right side of forehead 2.5 cm above right eye brow Brain tissue coming out.

Incised wound 14 cm x 1.5 cm on the left side of scalp, brain tissue deep placed antero posteriorly 11 cm above left ear.

Incised wound 1.5 cm x 0.5 cm bone deep on right side of face 1 cm lateral to right eye.

Incised wound 1 cm x .5 cm on the right side of forehead bone deep just above the left eye brow.

Abrasion 2 cm x 1.5 cm on left side of forehead 1 cm above left eye brow.

Incised wound 3 cm x 1 cm x muscle deep on the inner surface of left fore arm 3 cm above left wrist.

Abrasion 3 cm x 0.5 cm on the front of left arm 4 cm below top of left shoulder.

Abrasion 2 cm x 2 cm on the back of left eyebrow.

Incised wound 3 cm x 0.5 cm x bone deep on the back in middle at T11 vertebra level.

Incised wound 2 cm x 0.5 cm x muscle deep on the right side of back chest 8 cm below lower end of right scapula.

Incised wound 2 cm x 0.5 cm x muscle deep on the right side of back just above the right iliac crest.

Abrasion 3 cm x 2 cm on the left side of face 1.5 cm below left eye.

In internal examination, right parietal, right temporal, left parietal, frontal and occipital bones were fractured. Membrances were torn and lacerated an many places. Brain was lacerated. 2 Oz pasty food was found present in the stomach. Pasty food and gases were present in small intestine, whereas faecal matter and gases were found present in large intestine. Spleen and Kidneys were congested.

According to Dr. Srivastava, the death of the deceased was caused due to coma as a result of ante mortem head injuries sustained by him.

After conducting inquest proceeding on the dead body, the Investigating Officer collected blood stained and simple earth from the place where the dead body was lying and fard Ext. Ka 9 was prepared in this regard. Thereafter spot inspection was made at the instance of witness Santosh Kumar and site plan Ext. Ka 10 was prepared. Three blood stains sickles were found lying near the heap of wheat crop, which were taken into possession and fard ExtKa 11 was prepared.

On transfer of S.I. Ayodhya Prasad Mishra, the investigation was taken up in his hand by S.I. Sridhar Singh (P.W.9), who executed the warrants under section 82/83 Cr.P.C. against the accused and made efforts to arrest them, but in vain.

After transfer of S.I. Sridhar Singh, rest investigation was conducted by S.I. Vishwambhar Nath Tiwari (P.W.10), who after completion of the investigation, submitted chargesheet Ext. Ka 14 against all the five accused.

On the case being committed to the Court of session for trial, all the five accused were charged under sections 148, 307 & 302 both read with section 149 IPC, to which they pleaded not guilty and claimed to be tried.

The prosecution in order to prove its case examined 10 witnesses in all. P.W.I Bhaiya Lal is the complainant. He claims himself to be the eyewitness also of the incident. He has proved his written report Ext. Ka 1. P.W. 2 Smt. Ramwati is the wife of deceased. She also sustained injuries in the incident. P.W.5 Kamal Singh is the scribe of written report Ext. Ka 1. Rest are formal witnesses, who have proved various papers as mentioned hereinabove.

In their statements recorded under section 313 Cr.P.C., the accused persons denying their participation in the alleged incident have stated that due to enmity, they have falsely been implicated in this case. The accused Ramakant has further stated that the accused Rajjan is his fatherinlaw, due to which he also has falsely been roped into this case, so that he may not do the pairavi. The accused Chhotey has further stated that on the day of incident, he was not present in Mauja Kutubpur and he was working at Om Brickfield in Bhoganipur for the last about six months. Smt. Jai Devi is the wife of accused Chhotey. She also has stated that on the day of incident, she was working with her husband at the brick field in Bhoganipur and crop of the disputed plot was given on theka to Shambhu Teli. The accused Rajjan has further stated in his statement that on the day of incident, he was not present in Mauja Kutubpur and for the last about 15 years, he has been residing in village Kharaud. The accused Munni Devi, who is the wife of accused Rajjan, has also stated that for the last about 15 years she has been residing with her husband in village Kharaud, P.S. Kurara, District Hamirpur.

The accused Chhotey and Jai Devi examined Govind as D.W.1 in their defence. He has stated that for many years, he has been residing at Om Brickfield, situate in Bhoganipur, Pukhrayan, District Kanpur, where the accused Chhotey and Smt. Jai Devi also had come to work in the year 2001 and were residing there and in the year 2002 also, they were working at the brickfield and were not present on 12.04.2002 in their village Kutubpur.

The learned Trial Court having considered the entire evidence on record acquitted the respondentsaccused Ramakant, Chhotey, Smt. Jai Devi and Smt. Munni Devi of all the charges and further acquitted the appellant Rajjan Chamar of the charges under" sections 148 and 307 read with section 149 IPC, but convicted and sentenced him as mentioned in para one above. Hence this appeal.

We have heard Sri V.P. Srivastava, learned Senior Counsel, appearing for the appellantaccused Rajjan Chamar in criminal appeal, Sri B.S. Pahihar and Smt. Seema Shukla, learned Counsel for the respondentsaccused Ramakant, Chhotey, Jai Devi and Smt. Munni Devi in Government appeal, Sri R.K. Singh, learned AGA for the State and perused the impugned judgement and entire evidence on record carefully.

First, we are taking up Jail/Criminal Appeal, which have been preferred on behalf of accused Rajjan Chamar against his conviction and sentence. Regarding the incident which occurred on 12.4.2002 at about 5.00 p.m. in the field of deceased Maiyadeen, the prosecution has examined two witnesses including injured Smt. Ramwati. Conviction of the appellantaccused Rajjan Chamar is mainly based on the testimony of Smt. Ramwati, who has been examined as P.W.2. She is the wife of deceased Maiyadeen. She has fully supported prosecution case in her statement. Regarding the testimony of this witness, it was vehemently contended by the learned Counsel for the appellant that the testimony of Smt. Ramwati is not wholly reliable, as her testimony has been disbelieved by the learned Trial Court also, so far as the complicity of the respondentsaccused in the alleged incident is concerned. The contention of the learned Counsel for the appellant was that on the basis of the principle of falsusinuno falsusinomnibus, implicit reliance could not be placed on the testimony of Smt. Ramwati and since the learned Trial Court has convicted the appellantaccused Rajjan Chamar solely on the basis of the testimony of this witness, hence his conviction also is bad in law.

The learned AGA on the other hand submitted that the principle of falsusinuno falsusinomnibus is not applicable in India and hence, the testimony of Smt. Ramwati (P.W.2) cannot be discarded on the ground that her testimony has been disbelieved by the learned Trial Court for establishing the complicity of the respondentsaccused in the incident.

Having given our thoughtful consideration to the rival submissions of the learned Counsel for parties and after careful scrutiny of the statement of Smt. Ramwati P.W.2, we are not impressed with the aforesaid submission made by learned Counsel for the appellantaccused. So far as the complicity of the appellantaccused Rajjan Chamar in the incident in question is concerned, the testimony of Smt. Ramwati is intact and consistent and on the basis of her testimony, it is fully proved beyondj reasonable doubt that it was the accused Rajjan Chamar, who had assaulted her andl her husband Maiyadeen (deceased) by sickle (Hansia). Although Smt. Ramwati has stated that all the five accused had participated in the incident and they a had assaulted her husband and she was also assaulted by them, but giving cogent and acceptable reasons, the learned Trial Court has not believed this part of her statement and extending the benefit o doubt to the respondentsaccused, they have been acquitted. The matter of their acquittal will be dealt with later on at the time of consideration of Government appeal, but it is suffice to mention here that the learned Trial Court has not committed any illegality in placing reliance on the testimony of Smt. Ramwati to base conviction of the appellantaccused Rajjan Chamar, as her testimony could not be shaken inspite of lengthy crossexamination, so far as his complicity in the incident in question is concerned. Smt. Ramwati is injured witness and hence her presence at the place of incident is not doubtful. She sustained grievous injuries in the incident. It has come in the testimony of this witness that it was the appellant Rajjan, who had caused injuries in her eyes, due to which, she has lost eyesight of her both eyes. The testimony of Smt. Ramwati is corroborated by medical evidence. She was medically examined on 12.4.2002 at 11.00 p.m. by Dr. Prem Kumar Verma (P.W.6) in the District Hospital Hamirpur. Ext. Ka 4 is the injury report of Smt. Ramwati, which shows that injuries in her both eyes were caused by some sharp edged weapon. Dr. Gupta has stated in his statement that injuries of Smt. Ramwati are possible to be caused by hansia on 12.4.2002 at about 5.00 p.m. Statement of Smt. Ramwati finds corroboration from postmortem report (Ext. Ka 2) also. Dr. V.K. Srivastava (P.W.3), who conducted postmortem examination on the dead body of deceased Maiyadeen on 13.4.2002, has opined that injuries on the person of deceased may be caused by sickle. According to the postmortem report, the deceased had died due to coma as a result of ante mortem head injuries. Therefore, having regard to the medical evidence and consistent statement of Smt. Ramwati about the complicity of the appellantaccused Rajjan Chamar in the incident, in our considered view, the learned Trial Court has rightly convicted him of the offences under sections 302 and 326 I.P.C., as it is well settled that principle of falsusinuno falsusinomnibus, is not applicable in India.

The Ronnie Apex Court in the case of Sucha Singh v. State of Punjab, 2003 (47) ACC 555 (SC) = 2003 Cri. LJ. 3876 has held in para 18 as under:

"Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other coaccused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove fuilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsusinuno falsusinomnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called a mandatory rule of evidence. [See Nisar Ali v. State of Uttar Pradesh. AIR 1957 SC 366 ] Merely because some of the accused, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. [See Gurcharan Singh and another v. State of Punjab. AIR 1956 SC 460 ] The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well.

This principle was highlighted again by Hon''ble Apex Court in the case of Israr v. State of U.P. AIR 2005 SC 249 = 2005 (51) ACC 113 = 2005 (26) AIC 357 (SC), vide para 17, in which is held that the principle of falsusinuno falsusinomnibus, (false in one thing, false in everything) has no application in India.

Again in the case of Major Singh and another v. State of Punjab 2006 (56) ACC 1000 = 2006 (48) AIC 704 (SC) in para 15 at page 1003, the Hoh''ble Apex Court has held as under:

"It is well settled that the principle of falsusinuno falsusinomnibus is not an acceptable principle. It is well known fact that in our country very often the prosecution implicates not only real assailants but also implicates innocent persons so as to spread the net wide. The Court can always discriminate and find out that who were the real assailants and who were not". Therefore, having regard to the observations made by Hon''ble Apex Court in above mentioned cases, the learned Trial Court has not committed any illegality in convicting the appellantaccused Rajjan Chamar on the basis of the sole testimony of Smt. Ramwati (P.W.2).

Next submission made by Sri V.P. Srivastava, learned Senior Counsel appearing for the appellantaccused Rajjan Chamar, was that the offence under section 302 IPC would not be made out and even if the entire prosecution version is accepted to be true, the case would not travel beyond section 304, Part (I) or (II) I.P.C. The contention of Sri Srivastava was that it was a sudden quarrel and hence the appellant is entitled for the benefit of Exception 4 of section 300 IPC. In this regard, it was submitted by learned Counsel that as per FIR version, the accused persons were harvesting wheat crop on the day of occurrence and at about 5.00 p.m., when they were collecting harvested crop, all of a sudden quarrel started and without premeditation in the heat of passion, the appellantaccused Rajjan Chamar without taking undue advantage or acting in cruel or unusual manner, caused injuries to the deceased Maiyadeen and hence the case is covered by Exception 4 to section 300 IPC, attracting section 304 Part (I) or (II) IPC.

It was further submitted by Sri V.P. Srivastava that the offence under section 326 IPC also is not made out in this case, because Xray report of the Xray of the eyes of Smt. Ramwati has not been brought on record and hence it cannot be said that the injuries sustained by Smt. Ramwati were grievous in nature.

The learned AGA resisted the aforesaid submissions of the learned Counsel for the appellant contending that the injuries caused on the head of the deceased Maiyadeen were sufficient to cause death in the ordinary course of nature and hence the case is covered by third clause to section 300 IPC and offence under section 302 IPC will be made out in this case. It was also contended by learned AGA that the appellant Rajjan is not entitled to get benefit of Exception 4 of section 300 IPC, because, acting in cruel and unusual manner, he had caused grievous head injuries to the deceased without any justification. Regarding the injuries of Smt. Ramwati (P.W.2), it was submitted by learned AGA that she has lost eye sight of her both eyes due to the injuries caused by the appellantaccused, hence the offence under section 326 IPC is clearly made out in this case.

Keeping in view the nature of injuries sustained by the deceased Maiyadeen and his wife Smt. Ramwati in the incident in question and giving our thought ful consideration to the rival submissions made by the parties Counsel, we find no force in the aforesaid submissions made by the learned Counsel for the appellantaccused. We have already reproduced the ante mortem injuries, which were found on the person of deceased Miyadeen at the time of postmortem examination. Some incised wounds of various dimensions were caused to the deceased on his head and forehead. Ante mortem injury No. 1 was incised wound 15 cm x 2.5 cm x brain tissue deep. Due to this injury, brain tissue was coming out. Injury No. 2 was incised wound 5 cm x 1 cm x bone deep on the right side of scalp. Injury No. 3 was incised wound 7 cm x 1.5 cm x brain tissue deep on the right side of forehead and due to this injury, brain tissue was coming out. Injury No. 4 was also brain tissue deep incised wound measuring 14 cm x 1.5 cm on the left side of scalp. In internal examination of dead body, right parietal, right temporal, left parietal, frontal and occipital bones were found fractured and brain was found lacerated. According to postmortem report and statement of Dr. V.K. Srivastava, the death of the deceased was caused due to coma as a result of ante mortem head injuries. Aforesaid injuries in our view, were sufficient in ordinary course of nature to cause death. Some brain tissue deep incised wounds on the head of deceased were caused, due to which brain tissue was coming out. Hence, due to these head injuries, in ordinary course of nature, there was hardly any chance of survival of deceased. Even if the appellantaccused had not intended to cause the death of deceased, his intention was certainly to cause bodily injuries to him. The accused had given repeated blows on head of deceased by sickle with great force, resulting grievous head injuries to him, due to which his brain tissue also had come out. In our opinion, the head injuries caused by the appellantaccused to the deceased were certainly sufficient to cause his death in ordinary course of nature. Therefore, having regard to the injuries caused by the appellantaccused to the deceased, the case is squarely covered by third clause of section 300IPC, which reads thus:

"300. Murder Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or

Secondly

Thirdly If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or

Fourthly

Illustration ''C to section 300 IPC is also relevant in this regard, which is as under:

(c) A intentionally gives Z a swordcut or club wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here, A is guilty of murder, although he may not have intended to cause Z''s death."

Therefore, in our view, the Trial Court has not committed any illegality in convicting the appellant Rajjan Chamar under section 302 IPC. We agree with learned AGA that benefit of Exception 4 of section 300 IPC cannot be extended to the appellant in this case, as acting in cruel and usual manner, the appellantaccused had caused such bodily injuries to the deceased, which in ordinary course of nature were sufficient to cause death. Although the incident in which injuries were caused to the deceased by the appellantaccused Rajjan Chamar was a sudden fight and there might not be premeditation to cause death of the deceased, but by giving successive blows on the head of deceased and causing such injuries as were sufficient in ordinary course to cause death, the appellantaccused had certainly acted in cruel and unusual manner. Hence, in our considered view, the appellantaccused is not entitled to get benefit of Exception 4 of section 300 IPC and no interference in his conviction under section 302 IPC is required.

As regards the conviction of the appellant Rajjan Chamar under section 326 IPC, from the testimony of Smt. Ramwati P.W. 2, it is fully established that eyesight of her both eyes prior to the incident were all right, but due to the injuries caused to her by the appellantaccused Rajjan Chamar, she has lost eyesight of both eyes. It is specifically stated by Smt. Ramwati in her statement that the Rajjan had taken out her one eye from sickle (hansia) and injury was caused to her second eye also, due to which she lost eyesight of both the eyes. Although the Eye Surgeon was not examined by the prosecution in Trial Court, but there is no reason to disbelieve the testimony of Smt. Ramwati about loosing her eyesight of both eyes due to the injuries caused by the accused Rajjan. This part of her statement has been believed by learned Trial Court also and in our view no illegality has been committed in placing reliance on her testimony on this point. P.W. 1 Bhaiya Lal has also stated that Smt. Ramwati has lost eyesight of her both eyes due to the injuries caused by the appellantaccused Rajjan. No crossexamination has been made from this witness on this point and hence there is no reason to disbelieve his testimony on this matter. As such, on the basis of the testimony of Smt. Ramwati as well as P.W.1 Bhaiya Lal, it is proved beyond reasonable doubt that due to injuries caused by accused Rajjan Chamar to Smt. Ramwati, she has lost eyesight of her both eyes. The testimony of this witness find corroboration from her injury report Ext. Ka 4. This injury report shows that Smt. Ramwati had sustained incised wound in her both eyes. At the time of medical examination of Smt. Ramwati, eye lids of her eyes were swollen and blood clots were present. Due to the injuries caused by appellantaccused in her eyes, Smt. Ramwati has permanently lost her eyesight. Hence, in our opinion, the injuries caused to Smt. Ramwati come in the category of grievous hurt, within the meaning of section 320 IPC, which reads thus:

"320. Grievous hurt. The following kinds of hurt only are designated as " grievous"

First. Emasculation.

Secondly. Permanent privation of the sight of either eye.

Thirdly Permanent privation of the hearing of either ear.

Fourthly Privation of any member or joint.

Fifthly Destruction or permanent impairing of the powers of any member or joint,

Sixthly Permanent disfiguration of the head or face.

Seventhly Fracture or dislocation of a bone or tooth.

Eightly Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits." Section 326 IPC lays down that "Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a, weapon of offence, is likely to cause death, or by means of fire or any hearted substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine". Since in instant case also, grievous hurt was caused by the appellantaccused Rajjan to Smt. Ramwati by means of sharp cutting weapon i.e. Sickle (hasiya), hence in our considered view, his conviction under section 326 IPC also does not suffer from any illegality.

In view of the forgoing discussion, there is no scope to make any interference in the conviction of the appellantaccused Rajjan Chamar as recorded by the learned Trial Court in the impugned judgment.

Now we take up the Government appeal, which has been preferred by the State of U.P. after seeking leave of the Court against acquittal of the respondentsaccused. It was submitted by learned AGA that the learned Trial Court has committed gross illegality in disbelieving the testimony of Smt. Ramwati, the injured witness, regarding complicity of the respondentsaccused Ramakant, Chhotey, Smt. Jai Devi and Smt. Munni Devi, because according to this witness, these accused also had participated in the incident and they also had assaulted her and her husband Maiyadeen (deceased).

Learned Counsel for the respondentsaccused on the other hand, submitted that interference by this Court in the impugned judgment of acquittal will not be justified and legal, as the findings of acquittal recorded by the learned Trial Court are based on proper appreciation of the evidence, which cannot be said to be perverse or against the evidence. It was further submitted by learned Counsel for the respondentsaccused that if two views are possible on the evidence, one indicating to the guilt of the accused and the other to his innocence, the view favourable to the accused should be accepted and specially by the appellate Court, while deciding the appeal against acquittal.

Having given our thoughtful consideration to the aforesaid submissions made by learned Counsel for the parties, we find force in submission made by learned Counsel for the respondentsaccused.

First information report of the incident was lodged by Bhaiya Lal P.W.I, but he did not name the respondentaccused Ramakant in the FIR. It has come in the statement of Bhaiya Lal that Ramakant was not known to him prior to the incident. Accused No. 5 in the FIR has been ''described as soninlaw of Rajjan resident of village Kusmara, P.S. Kurara, Hamirpur. According to Smt. Ramwati (P.W.2), injury by axe is said to have been caused by Ramakant in her hand. Dr. P.K. Gupta, who medically examined Smt. Ramwati has stated that all her injuries are possible to be caused by sickle (hansia). Having regard to all these facts, the learned Trial Court has rightly extended the benefit of doubt to the respondentaccused Ramakant and no illegality appears to have been committed in acquitting him.

The respondentsaccused Chhotey and his wife Smt. Jai Devi also have been acquitted by the learned Trial Court. It has come in the crossexamination of 20.7.2004 of P.W.I Bhaiya Lal that at the time of incident, accusedChhotey and his wife had gone to work at brickkiln in Bhoganipur. The following statement of Bhaiya Lal is also relevant:

Having regard to the aforesaid statement of the complainant Bhaiya Lal, the learned Trial Court has not committed any illegality in acquitting the respondentsaccused Chhotey and his wife Smt. Jai Devi, extending benefit of doubt to them also.

Respondentaccused Munni Devi is the wife of appellantaccused Rajjan Chamar. The learned Trial Court giving sound reasons in the impugned judgment has acquitted Smt. Munni Devi also extending benefit of doubt and holding that the case against Ramakant, Chhotey, Jai Devi and Munni Devi is not proved beyond reasonable doubts. Although the injuries on the person of deceased Maiyadeen and injured Smt. Ramwati appear to have been caused by more than one person, but since benefit of doubt has been extended to the accused Munni Devi also by the learned Trial Court after discussing the statements of the injured Smt. Ramwati and P.W. 1 Bhjaiya Lal, this Court will not be justified to make any interference in the acquittal of Munni Devi also, as the findings recorded by the learned Trial Court on the basis of which the benefit of doubt has been extended to Smt. Munni Devi cannot said to be perverse or against evidence.

The HonlDle Apex Court in the case of Harijana Thirupala and others v. Public Prosecutors, High Court of A.P. Hyderabad 2002 SCC (Cri) 1370 = 2002 (45) ACC 488 (SC) in para 11 of the judgement as held as under:

"In our administration of criminal justice an accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by producing the evidence to show him to be guilty of the offence with which he is charged. Further if two views are possible on the evidence produced in the case, one indicating to the guilt of the accused and the other to his innocence, the view favourable to the accused is to be accepted. In cases where the Court entertains reasonable doubt regarding the guilt of the accused, the benefit of such doubt should go in favour of the accused. At the same time, the Court must not reject the evidence of the prosecution taking it as false, untrustworthy or unreliable on fanciful grounds or on the basis of conjectures and surmises. The case of the prosecution must be judged as a whole having regard to the totality of the evidence. In appreciating the evidence the approach of the Court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the Court has to appreciate, analyse and assess the evidence place before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses. It must be added that ultimately and finally the decision in every case depends upon the facts of each case".

In Ramanand Yadau v. Pmbhunath Jha (2003) 12 SCC 606 the Hon''ble Apex Court observed thus:

"There is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with, because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less that from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the Appellate Court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not".

In the case of Kallu v. State of M.P., AIR 2006 SC 831 the Hon''ble Apex Court has held as under:

"While deciding an appeal, against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an Appellate Court, where the judgment of the Trial Court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the Trial Court merely because a different view is possible. The Appellate Court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the Trial Court".

Making reference to earlier judgments, the Hon''ble Apex Court in the case of Chandrappa and others v. State of Karnataka, 2007 (58) ACC 402 = 2007 (54) AIC172 (SC) has laid down the following general principles regarding power of Appellate Court while dealing with an appeal against an order of acquittal:

An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;

The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an Appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;

Various expressions, such as, ''substantial and compelling reasons'', ''good and sufficient grounds'', ''very strong circumstances'', ''distorted conclusions'', ''glaring mistakes'', etc. are not intended to curtail extensive powers of an Appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language'' to emphasize the reluctance of an Appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

An Appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Trial Court.

If two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the Trial Court.

Having regard to the observations made by Hon''ble Apex Court in above mentioned cases and various other cases, which have been referred in Chandrappa and others v. State of Karnataka (supra) and keeping in view the foregoing discussion, we find no justified reason to make any interference in the impugned judgment regarding acquittal, of the respondentsaccused Ramakant, Chhotey, Jai Devi and Munni Devi. Therefore, the Government appeal has to be dismissed.

The appellantaccused Rajjan Chamar has been sentenced to death under section 302 IPC. But no special reason has been assigned by the learned Trial Judge in the impugned judgment for imposing extreme penalty. We have already held that injuries to the deceased were caused by the appellantaccused Rajjan in a sudden fight without any premeditation. Therefore, in our view, this case does not come in the category of ''rarest of the rare case'' and hence death sentence is not justified. In our opinion, the sentence of the imprisonment for life and some fine under section 302 IPC would meet the ends of justice. The learned Trial Court has granted Rs. 40,000/ as compensation to the victim Smt. Ramwati from the amount of fine imposed under section 326 IPC. In our view, no interference is required in the sentence imposed by learned Trial Court under section 326 IPC, but the death sentence awarded by the learned Trial Court under section 302 IPC has to be set aside.

Consequently, criminal appeal as well as capital jail appeal are partly allowed. Upholding the conviction of the appellantaccused Rajjan Chamar on both counts, the sentence of death awarded by Trial Court under section 302 IPC is reduced to imprisonment for life and fine of Rs. 10,000/ with additional imprisonment of one year in default of payment of fine. The sentence under section 326 IPC awarded by the learned Trial Court including the order of compensation is affirmed. Both the sentences shall run concurrently.

Capital sentence Reference for confirmation of death sentence is rejected.

The Government appeal is hereby dismissed. The respondentsaccused Ramakant, Chhotey, Smt. Jai Devi and Smt. Munni Devi are on bail. Their personal and surety bonds are cancelled and the sureties are discharged.

The appellantaccused Rajjan Chamar is in jail. He shall be kept there to serve out the remaining sentence as modified by this Court. Fresh conviction warrant in the light of this judgment will be sent to jail by the Trial Court concerned.

The office is directed to return Trial Court record expeditiously along with a copy of this judgment for necessary action.