Holding

The Supreme Court held that the High Court's acquittal was perverse; a duly explained delay in recording an injured child's statement does not invalidate the testimony, and the convictions stand with the death sentence reduced to life imprisonment.

Summary

The case arose from a night-time assault in which four accused attacked the household of Hansraj, killing three persons and severely injuring a 13‑year‑old boy, Prithvi, who was the key eyewitness. The trial court convicted the accused under IPC sections 302, 307 and 460 and sentenced them to death and life imprisonment. The Rajasthan High Court acquitted them, primarily on the ground that Prithvi's statement was recorded after a delay and was therefore unreliable, and that investigation defects undermined the prosecution case. On appeal, the Supreme Court held that an appeal against acquittal under Article 136 can be entertained when the lower court's judgment is perverse, and that a delay in recording an injured child's statement does not per se render it inadmissible if satisfactorily explained. The Court found the evidence of Prithvi credible, corroborated by medical reports and other witnesses, and rejected the High Court's reasoning as perverse. Consequently, the convictions were restored, the death sentence of Mam Raj was reduced to life imprisonment, and the other sentences were upheld.

Issues considered

The scope of Article 136 for interference with a High Court acquittal and when a judgment is perverse
Whether a delay in recording the statement of an injured child witness defeats its admissibility or credibility
Whether defects in police investigation can alone justify acquittal
Whether the evidence of a seriously injured child can be relied upon despite lack of mathematical precision
Whether the death penalty under Section 302 IPC is warranted in the facts of the case

Legislation cited

Constitution of Indias. Article 136
Indian Penal Code, 1860s. 302, s. 307, s. 460

Subjects

appeal against acquittalArticle 136delay in recording witness statementinjured child witnessevidence appraisalperverse judgmentdeath penaltyrarest of rare doctrineIPC Section 302investigation defectsmotive

Judgment

A PRITHVI (MINOR)
v.
MAM RAJ AND ORS.

FEBRUARY 19, 2004

B [K.G. BALAKRISHNAN AND B. N. SRIKRISHNA, JJ.]

Constitution of India-Article 136-Appeal against acquittal-Scope for
interference-Held, acquittal can be interfered with when the judgment of the
C High Court is perverse.

Criminal Trial-Statement of witness-Delay in recording-Effect of-
Witness seriously injured in the occurrence-Not in a position to give
statement-Statement recorded after his recovery-Held, delay is not fatal-
Indian Penal Code-Section 302.
D
Evidence-Appreciation of-Seriously injured child witness-
Mathematical precision cannot be expected in his evidence-Indian Penal
Code-section 302.

Investigation-Defects in-Effect of-Held, cannot by itself be a ground
E for acquittal of accused if the evidence is believable-lndian Penal Code-
Section 302.

'H' had no issue and desired to bring up the son of his brother but
later on threw him out of his house. Thereafter, 'H' allowed his nephew
F 'P' and his niece 'L' to live with him and wanted to give his land to 'P' in
preference to the son of his brother. The accused persons, who we(e close
relatives of the brother of 'H' and were aggrieved by the decision of 'H', .._
came to the house of 'H' in the dead of night armed with lath is. They gave
lathi blows to 'P', 'H', 'L' and wife of 'H'. Three persons died. 'P', who
G was a minor, was given lathi blows over his head and eyes.

On hearing the cries of 'P', the neighbours woke up and saw the
accused persons running away. They informed the police. When the
Investigating Officer came to the house of 'H', he found that 'P' was semi,
conscious and was making incoherent and incomprehensible sounds. 'P'
H was sent to the hospital for treatment and his statement was not recorded
530
PRITHVI (MINOR) v. MAM RAJ 531

at that time. The attending doctor too was of the opinion that 'P' was not A
in a position to give his statement. Statement of 'P' was recorded after
his discharge from the hospital.

The Trial Court convicted the accused persons under Section 302
and other sections of IPC and sentenced them to death and life. On appeal, B
the High Court disbelieved the evidence produced by the prosecution. One
of the grounds given weightage to by the High Court was that the
statement of 'P' was recorded after substantial delay. The High Court
acquitted the accused persons.

'P' and the State filed appeal before the Court.
c
Allowing the appeals and converting death sentence into life
imprisonment, the Court
HELD: 1.1 The normal rule is that this Court does not interfere
under Article 136 of the Constitution of India in an appeal against acquittal
unless the judgement of the High Court is perverse. [536-F) D
State of UP. v. Gokaran and Ors., (1984) Supp. SCC 482, referred
to.
1.2. The reasoning of the High Court for acquitting the accused is
wholly perverse. The evidence on record gives only one view, which is not E
ambivalent or capable of an alternate appreciation consistent with the
innocence of the accused. [541-E, CJ

Harijana Thirupala and Ors. v. Public Prosecutor, High Court ofA. P.,
Hyderabad, (2002) 6 SCC 470 and Kali Ram v. State of Himachal Pradesh,
[1973] 2 sec 808, cited. F
2. Unless one went about looking for· the lacunae, there was no
justification to summarily brush aside the evidence of 'P'. That 'P' was
an eye-witness is indubitable; that he was an injured witness who sustained
serious injuries gives credence to the prosecution story and that he was
at the spot when the offence was committed. His evidence is fully G
corroborated by the evidence of the doctor, the Investigating Officer and
at least half a dozen of neighbours who unanimously said that 'P' was
unable to speak, was making incomprehensible sounds and was moaning.
(537-A, 538-D)
Modi's Medical Jurisprudence and Toxicology, (21st Edn.), referred H
to.
532 SUPREME COURT REPORTS [2004] 2 S.C.R. ..........
A 3.1. Delay in recording the statement of witness can occur due to
various reasons and can have several explanations. It is for the court to
assess the explanation and, if satisfied, accept the statement of the witness.
There is no absolute proposition of law that delay per se destroys the
credibility of witnesses' statements. (541-A-B)
.,,
B Balakrushna Swain v. State ofOrissa, AIR (1971) SC 804 and State of .........:-
Orissa v. Brahmananda Nanda, AIR (1976) SC 2488, cited.

3.2. The delay in recording the statement of 'P' has been more than
adequately explained. Unexplained delay in recording the statement may
~
render it suspect, but the High Court cannot make a fetish out of form of
c prudence. In the present case, the circumstances are eloquent and ought
to have been accepted by any reasonable standard. (537-F, HJ

Mohd. Khalid v. State of West Bengal, [2002) 7 SCC 334, referred to.

3.3. Appreciation of witness's evidence requires an empathetic
D
approach. The court must place itself in the situation in which the witness
was to appreciate the circumstances. Where a child of about 13 years
receives a stunning blow on his head sufficient to make him semi conscious,
if not, unconscious, and the head injury renders him speechless, literally
and figuratively, it is inhuman to expect an Investigating Officer to
E interrogate the child at that stage and ask the child to write down what
he knows. Neither the witness nor the Investigating Officer was a robot
bereft of humanity to do this. (538-F-G]

4. Mathematics does not strictly work in appreciation of evidence.
That 'P' survived the murderous attack itself is a piece of extreme good
F
fortune. To accept mathematical exactitude from the evidence of such a
witness is asking for the impossible. (539-C, D]
- •·

5. Assuming that there was faulty investigation by Investigating
Officer,' it could hardly be a ground for rejection of the testimony of 'P'
G which had ring of truth in it. (539-F)

Allarakha K. Mansuri v. State of Gujarat, [2002) 3 SCC 57, referred

H
to.

6. The reasons given for disbelieving P's evidence are utterly
perverse. There is no contradiction between the statement of 'P' and the
-
-- PRITHVI (MINOR) v. MAM RAJ [SRIKRISHNA, J.]

Investigating Officer which would require the statement of 'P' to be
533

A
rejected as unreliable. 1539-H)

7. The short shrift given by the High Court to the evidence on the
issue of motive is perverse. There is overwhelming evidence as to bad blood
between the accused and 'H' on the issue of throwing out the son of his
brother and accommodating 'P' and 'L' in the house. There is also B
overwhelming evidence that 'H' had declared his intention to give away
his agricultural land to 'P' and this had caused extreme annoyance to the
accused. There is acceptable evidence of several witnesses who deposed
that on account of this reason the accused had threatened to kill 'H'.
1540-F-G) C

CRIMINAL APPELLATE JURISDICTION Criminal Appeal
Nos. l 844-1846 of 1996.

From the Judgment and Order dated 13.9.95 of the Rajasthan High
Court in D.B. Cr!. Death Reference No. 1/95, D.B. Cr!. A. Nos. 20 l, 169 and D
146 of 1995.

WITH

Crl.A. Nos. 1856-1858 of 1996.

K.V. Viswanathan, K.V. Venkataraman, Mrs. Neeta Aggarwal, Atul E
Kumar Sinha, B. Ragunath and Ajit Mohan Singh for the Appellant.

U.N. Bachawat, Ms. Anjali Doshi, Ms. Ruchi Kohli, Sushi! Kumar Jain
and Ms. Sandhya Goswami for the Respondents.

The Judgment of the Court was delivered by F
SRIKRISHNA, J. These appeals are directed against the common
judgment of the Rajasthan High Court in Criminal Death Reference No. l of
1995, Criminal Appeal No. 201 of 1995, 169 of 1995 and 146 of 1995 by
which the High Court was pleased to acquit respondents 1 to 4 who had been
found guilty of charges under Section 302 r/w S. 307 and 460 of the Indian G
Penal Code, 1860 (hereinafter referred to as "IPC"). The appellant in Cr!. A.
Nos. 1844-46 of 1996 is a person aggrieved by the acquittal of the accused,
being closely related to the deceased persons. Criminal Appeal Nos. 3036-38
of 1996 are at the instance of the State of Rajasthan impugning the same
judgment of the High Court. H
534 SUPREME COURT REPORTS [2004] 2 S.C.R.

A Prithvi, the appellant in the above set of appeals, at the material time
when the incident occurred, was aged about 13 years. He used to reside,
along with his cousin-sister deceased Kumari Lali, with his Uncle, deceased
Hansraj and Aunt, deceased Mahadi, in village Kotputali. Hansraj and his
elder brother Gheesa, both sons of Dhonkal, were residing in adjoining houses
In village Kotputali. Hansraj was married to Mahadi, the sister of Surja (PW-
B 34) and Rameshwar (PW-35). Hansraj had nci issues and, therefore, he desired
to bring up and kept with him Hardan (PW-5), the son of his brother Gheesa.
For some reason, Hansraj was annoyed with Hardan and threw him out of his
-
house. He, thereafter, allowed Prithvi (PW-31 ), who was the son of his brother-
in-law Surja (PW-34) and Lali, the daughter of his brother-in-law Rameshwar
C (PW-35) to live in his house. Respondent No.1 - Mam Raj, s/o Bhagwana,
r/o Village Naurangpura; respondent No.2 - Jai Ram s/o Bhagwana, r/o Village
Naurangpura; respondent No.3 - Rameshwar, s/o Gheesa, r/o Village Kuhara;
and respondent No.4 - Bharta, s/o Sohanlal, r/o Village Khatoli, are all close
relatives of Gheesa. Mam Raj and Jai Ram are the brothers of Gheesa's wife;
Rameshwar is the father-in-law of the younger brother of Hardan and Bharta
D is Ghessa's sister's son. Hansraj had certain agricultural land, which he desired
to give away to Prithvi in preference to Hardan. On this account, the
respondents wern angry with Hansraj and on some occasions, prior to the
date of occurrence, threatened him with serious consequences if his agricultural
land was not given to Hardan and ifhe failed to tum out Prithvi and Prithvi's
E cousin Lali from his house. Hansraj, however, refused to comply with these
demands despite the threats.

On the night of 14th /Uith August 1993, Hansraj and Prithvi were
sleeping on charpais outside the house of Hansraj. Mahadi and Lali were
sleeping on charpais in the courtyard inside his house. The case of the
F prosecution is that in the dead of the night, between midnight and 1.00 AM,
the four respondents came to the spot anned with Lathis in their hands.
Rameshwar gave a Lathi blow on the head of Prithvi, but since he was
sleeping with his hand over his head, the lathi immediately hit his hand as
a result of which he got up and saw the respondents Mam Raj, Jai Ram and
G Bharta giving lathi blows to Hansraj. Prithvi attempted to raise an alann
whereupon all the four accused gave him lathi blows on his head, eye, hand
and other parts of his body. Respondent No. 2 - Jai Ram thereafter stated to
the other respondents that all the victims had died and that they all should run
away from the spot. Accordingly, the respondents ran away from the spot.

H Prithvi thereafter raised an alann, which attracted the attention of Ganapt
PRITHVI (MINOR) v. MAM RAJ [SRIKRISHNA. J.] 535

and Sona (PW-32) who were residing nearby. Sona was lying on a cot by the A
side of his neighbouring house and upon hearing the barking of the dogs, he
came awake. He saw some people running by near his charpai within a few
feet and flashed his torchlight on them. He recognised Mam Raj, Jai Ram and
Rameshwar who were seen running towards village Naurangpura. The noise
also attracted the attention of Bhagwan (PW-17), Birbal (PW-18) and B
Rameshwar (PW-19) who were also sleeping outside their adjoining houses
and they came running to the house of Hansraj. These people noticed Hansraj
lying dead on the charpai and Prithvi was lying in injured condition and
weeping. On entering the house, they also noticed Mahadi's and Lali bodies
lying on the charpai with extensive injuries.
c
Telephonic information was given to SHO of Police Station Kotputali.
PW-36 Badri Prasad Sharma reached the spot along with his staff at about
5.00 AM. PW-17 Bhagwan gave him a written report which was sent to the
Police Station and a formal FIR bearing No. 326 of 1993 was recorded at
about 6.00 AM. Though Prithvi was semi-conscious at that time, because of
the serious head injury, he was unable.to talk coherently, but made incoherent D
and incomprehensible sounds. He was sent to BDM Hospital, Kotputali for
treatment. The bodies of the three deceased were sent for post mortem and
the Investigating Officer, Badri Prasad Sharma continued with the
investigation. The post mortem reports of the three bodies showed extensive
lacerated wounds on the partietal region. Although the investigating Officer E
carried out the investigation at the spot of the crime and recorded the statements
of the witnesses found there including Sona (PW-32), he was unable to
record the statement of Prithvi as Prithvi was moved to the hospital in Jaipur.
The attending doctor there was of the opinion that Prithvi was unconscious
and was, therefore, unable to have his statement recorded. After Prithvi was
discharged from the hospital the Investigating Officer (PW-36) learnt about F
the same went to Prithvi's father's village Khiwari (where Prithvi had been
moved), and recorded his statement there on 29.8.1993. The Investigating
Officer thereafter arrested the respondents and on their statements recovered
the lathi which had been used for committing the offence.

The accused were thereafter put up for trial before the Additional
G
Sessions judge, Kotputali. The learned Sessions Judge convicted respondents
under different sections of the IPC and sentenced them as under:-
Res. Name of Offence Convicted Trial Court judgment
No. Accused Under date 20.2.1995
H
A
536

I. Mam Raj
SUPREME COURT REPORTS

U/s 302 r/w 34 IPC
[2004] 2 S.C.R.

Sentenced to Death
--
U/s 307 r/w 34 IPC R.l. for 7 years and fine of
Rs. 1,000
U/s 460 IPC R.I. for 7 years and fine of
Rs. 1,000
B 2. Jai Ram U/s 302 r/w 34 IPC Life imprisonment and fine
of Rs. 2,000
3. Ramesh war U/s 302 r/w 34 IPC Life imprisonment and fine
of Rs. 2,000
c 4. Bharta U/s 307 r/w 34 & R.I. for 7 years and fine of
460 IPC Rs. 1,000
A reference being Death Reference No. 1 of 1995 was forwarded to
the High Court. Simultaneously the four accused also appealed against their
convictions and the High Court by the impugned judgment disagreed with
D the findings of the Trial Court and acquitted all the four accused. Prithvi, the
injured person and the State of Rajasthan are in appeal there against.

The linchpin of the evidence for the prosecution is the deposition of
Prithvi who was an injured witness. In addition, thereto, the learned Sessions
Judge also relied on circumstantial evidence. The four assaislants being seen
E running away from near the spot of crime soon after the occurrence of the
crime by Sona (PW-32), their being seen by Gheesa (PW-27) , son of Shalla
with lathis in their hands at the turning of Gopalpura, Delhi-Jaipur Road on
14.8.1993 were the circumstances. The High Court acquitted all the
respondents-accused by disbelieving the evidence of the main prosecution
witness, PW-31 Prithvi.
F
We are aware that this is an appeal against acquittal and with all its
entailing constraints. The normal rule is that this Court does not interfere
under Article 136 of the Constitution in an appeal against acquittal unless the
judgment of the High Court is perverse. We are constrained to say that the
G judgment appealed falls into this category and requires interference at the
hands of this court.

In State of UP. v. Gokaran and Ors., 1984 (Supp.) 482 at p. 486 (para
6), this Court pointed out that while it o!dinarily does not interfere with the
acquittal recorded by a High Court, when however incriminating of a evidence
H of satisfactory character is brushed aside mainly by relying upon a few
PRITHVI (MINOR) v. MAM RAJ [SRIKRISHNA. J.] 537

circumstances which do not go to detract from the value of such incriminating A
evidence, it becomes the duty of the Court to interfere with the acquittal in
order to redeem the course of justice. That Prithvi was an eye-witness is
indubitable, that he was an injured witness who sustained serious injuries
gives credence to the prosecution story and that he was at the spot when the
offence was committed. The medical certificates show that Prithvi suffered
grievous multiple internal and external injuries including fracture of the skull B
and the lower I/3rd shaft of right ulna. The evidence of the people in the
neighbourhood, who came to the spot on hearing the cries, PW-4, Malaraj,
PW-7 Mahesh Kumar, PW-13 Hemchander and PW-16 Prahlad clearly show
that Prithvi was unable to speak and communicate to them reason for his
agony. Dr. K.G. Lakhera (PW-23), Badri Prasad Sharma (PW-36), the C
Investigating Officer, also vouch for the fact that immediately after the incident,
Prithvi was only making incoherent noises, moaning aloud and saying "arre
brre" which made no sense. Notwithstanding this evidence on record, the
High Court disbelieves the explanation tendered by the Investigation Officer
for the delay in recording the statement of Prithvi. The Investigating Officer
(PW-36) stated that when he arrived at the spot Prithvi was unable to speak D
except making moaning noises. Prithvi was thereafter moved to the BDM
Hospital, Kotputali where his condition was the same as is deposed to by Dr.
Lakhera (PW-23). He was thereafter moved to the hospital in Jaipur. Despite
trips made by the Investigating Officer to Jaipur, he was not allowed to
record the statement on the ground that Prithvi was semi-conscious. The E
Investigating Officer periodically sent his constable to the Jaipur Hospital to
find out the condition of Prithvi. On one such trip on 28th August, 1993, the
Constable learnt that Prithvi had been discharged. As soon as the Investigating
Officer came to know of it, he went to Village Khiwari, where Prithvi had
been moved, and recorded Prithvi's statement on 29th August 1993. This
more than adequately explains the delay in recording the statement of Prithvi. F
Unexplained delay in recording the statement may render it suspect, but the
High Court cannot make a flesh out of a rule of prudence. In Mohd. Khalid
v. State of West Bengal, [2002] 7 SCC 334 at p. 349 (para 12), this Court
observed that:-

"Mere delay in examination of the witnesses for a few days cannot 0
·• in all cases be termed to be fatal so far as the prosecution is concerned.

-- There may be several reasons. When the delay is explained, whatever
be the length of the delay the court can act on the testimony of the
witness if it is found to be agent and credible".
f
538 SUPREME COURT REPORTS [2004] 2 S.C.R.

A In the present case the circumstances are eloquent and ought to have
been accepted by any reasonable standard.

Another reason given by the High Court for disbelieving the Investigating
Officer is non-production of the record from the SMS Hospital, Jaipur to
show that Prithvi was unable to speak. As to the effect of a serious head
B injury on the faculties of the victim, Modi 's Medical Jurisprudence and
Toxicology (2 lst Edition) at p. 310, has this to say:-

"In addition to loss of memory, concentration and confidence in
himself throbbing headache, giddiness, or transient blackout, weakness,
mental irritability, neurasthenia, vertigo and loss of hearing, vision or
c speech persist for weeks and months after recovery. Post concussion
syndrome manifesting as anxiety or terror neurosis, hysteria etc. is of
medico!egal significance ... "

To our mind, it appears that unless one went about looking for lacunae,
D there was no justification to summarily brush aside the evidence of Prithvi,
which is fully corroborated by the evidence of Dr. Lakhera, Badri Prasad
Sharma (the Investigating Officer, PW-36) and atleast half a dozen of the
neighbours who unanimously said that Prithvi was unable to speak was making
incomprehensible sounds and was moaning. Though he was able to
comprehend what was asked, he was unable to communicai:e.

The High Court also found fault with the Investigating Officer that he
did not take a statement in writing from Prithvi since it was admitted by Dr.
Lakhera that Prithvi was in a position to write and could have written if he
was literate. Appreciation of witness's evidence requires an empathelic
approach. The court must place itself in the situation in which the witness
f was to appreciate the circumstances. Here we have a child of about 13 years
who receives a stunning blow on his head sufficient to make him semi-
conscious, if not unconscious. The head injury renders him speechless, literally
and figuratively. In these circumstances, it is inhuman to expect an
Investigating Officer to interrogate the child at that stage and ask the child
...... to write down what he knows. Neither the witness nor the Investigating
J
Officer was a robot bereft of humanity to do this. Taking the totality of the
picture, it appears to us that this reasoning for disbelieving witness Prithvi
was wholly perverse.

The other reason given for disbelieving Prithvi is that all the victims
'-I appeared to have received blows at the same regions of the anatomy. The
PRITHYI (MINOR) v. MAM RA.I [SRIKRISl-INA, .I.] 539

High Court further says:- A
"If, in fact, all the four appellants had given lathi blows to Hansraj
as has been deposed by Prithvi, there ought to have been many injuries
on the person of Hansraj and if the appellants had given fatal injuries
on the persons of Mahadi and Lali with the help of lathis, there
would have been many injuries on their person ... The fact that the B
injuries were on the same portion of the body of each of the three
deceased persons and the same mode had been used by the assailants
for causing the said injuries, as has been deposed by Dr. Lakhera·
(PW-23), it is not possible to believe that injuries could have been
caused by the lathis used by respondents." C
We are afraid that mathematics does not strictly work in appreciation
of such evidence. A child who is rudely woken upon from his slumber by a
lathi blow on his head is not expected to count the number of lathis or the
number of blows given so that the court could co-relate them mathematically
to the post-mortem certificate. That the child survived the murderous attack D
itself is a piece of extreme good fortune. To accept this exactitude from the
evidence of such a witness is asking for the impossible.

A further reason for disbelieving the evidence of Prithvi is that, while
Prithvi stated that he could see the assailants because there was light on the
spot coming from a bulb fitter~ in an electric pole near the chakki of Birbal, E
(which was situated about 15 steps from the place of occurrence) the
Investigating Officer (PW-36) when cross-examined said that he did not
remember anything about it nor did he include any electric pole in his site
plan. Assuming that this was faulty investigation by Investigating Officer, it
could hardly be a ground for rejection of the testimony of Prithvi which had F
ring of truth in it. We may recount here the observation of this court in
Al/arakha K. Mansuri v. State of Gujarat, [2002] 3 SSC 57 at p. 64 (para 8)
that:-

"The defects in the investigation holding it to be shaky and creating
doubts also appears to be the result of the imaginative thought of the G
trial court. Otherwise also, defective investigation by itself cannot be
made a ground for acquitting the accused."

We see no such contradiction between the statement of Prithvi and the
Investigating Officer which would require the statement of Prithvi to be
rejected as unreliable. That Prithvi was well acquainted with the assailants H
540 SUPREME COURT REPORTS [2004] 2 S.C.R.

A and could recognise them, is obvious. They were known persons, and related
in one way or the other. In our view, the reasons given for disbelieving
Prithvi's evidenc~ are utterly perverse.

The evidence of Sona (PW-32) to the effect that, he came awake
because of barking of dogs and saw four persons running by and when he
B flashed the torch he noticed three of the respondents and a fourth person
whom he could not recognise, is also disbelieved by the High Court on the
ground that the place where Sona was sleeping was not shown on the site
-
plan. The High Court also attached importance to the fact that the Investigating
Officer had not put the date on which the statement of this witness was taken
C although the Investigating Officer explained that he had forgotten to mention
the date. The High Court assumes that on the date of the incident itself, the
Police knew the names of the assailants; therefrom it deduces that they were
not arrested till 30.8.1993 makes the statement of the witness unreliable.
This, to say the least, is another piece of perverse reasoning.

D Evidence ofGheesa (PW-27) that he had seen four accused at Gopalpura
turning on Delhi-Jaipur Road is disbelieved in the flimsy ground that the
reason why he came from his village to Kotputali i.e. to look up Rameshwar
(a relative) who was admitted there with kidney pain, was not believable.
Actually, the fact that Gheesa (PW-27) saw the four respondents at the
Gopalpura turning was itself an innocuous fact and the High Court went all
E out to explain it away by saying that they had a good reason to be there,
because Gheesa, who is the brother of Hansraj and also a close relative of the
accused, was lying admittedly at the hospital. As to the motive of the crime,
the High Court has completely ignored the totality of the evidence before it
and observed that the motive for the crime was not satisfactorily proved.
F
As to bad blood between the accused and Hansraj on the issue of
throwing out Hardan and accommodating Prithvi and Lali in the house, the
evidence is overwhelming. There is also overwhelming evidence that Hansraj
had declared his intention to give away his agricultural land to Prithvi and
this had caused extreme annoyance to the accused. There is acceptable evidence
G of several witnesses who deposed that on account of this reason the accused
had threatened to kill Hansraj. In these circumstances, the short shrift given
to the evidence on the issue of motive is perverse.

The respondents placed reliance on the observation of this Court in
Balakrushna Swain v. State of Orissa, AIR (1971) SC 804 and in State of
H
PRITHVI (MINOR) v. MAM RAJ [SRIKRISHNA, J.] 541

{Jrissa v. Brahmahanda Nanda, AIR ( 1976) SC 2488 (at p. 2489, para 2) and A
contend that the evidence of appellant Prithvi was not believable because of
the long delay in recording the statement. We are afraid that neither case lays
down an absolute proposition of law that delay per se destroys the credibility
...·• of witnesses' statements. The judgements merely point out that unexplained
delay in recording the statement gives rise to a doubt that the prosecution B
might have engineered it to rope the accused into the case. Delay in recording
the statement of the witness can occur due to various reasoils and can have
several explanations. It is for the court to assess the explanation and if satisfied
accept the statement of the witness.

The respondents have also relied on Harijana Thirupala and Ors. v. C
Public Prosecutor, High Court of A.P. Hyderabad, [2002] 65 SCC 470 at p.
476 (para 11), in support of the proposition that where the evidence is
ambivalent, the view favourable to the accused should be accepted by the
court in a criminal trial. To similar effect are the observations of this Court
in Kali Ram v. State of Himachal Pradesh, [ 1973] 2 SCC 808 at pp. 819-821
(para 23, 25-28). In our view this principle has no application for the reason D
that we are more than satisfied that the evidence on record gives only one
view, which is neither ambivalent nor capable of an alternate appreciation
consistent with the innocence of the accused.

Considering the totality of the circumstances as evidenced from the E
record, we are satisfied that tl1.! reasoning of the High Court for acquitting
the accused is wholly perverse; had there been a reasonable approach to the
appreciation of evidence, there would have been no reason to interfere with
the findings recorded by the learned Addi. Sessions Judge.

In the result, we set aside the judgment of the High Court and affirm F
the convictions rendered by the learned Addi. Sessions Judge. However, we
are unable to accept the reasoning of the learned Addi. Sessions Judge that
accused Mam Raj deserved the punishment of death. There is no doubt that
accused Mam Raj was the ringleader and was responsible for the planned
murder of Hansraj, Mahadi and Lali. Nonetheless, the circumstances of the
case do not suggest that it is one of the "rarest of rare cases" where the death
G
sentence has to be awarded.

In the result, we maintain the convictions rendered against the accused
Mam Raj, Jai Ram, Rameshwar and Bharta. We also maintain the sentences
awarded to Jai Ram, Rameshwar and Bharta. With regard to Mam Raj, however H
542 SUPREME COURT REPORTS [2004] 2 S.C.R.

A the sentence is reduced from one of death to life imprisonment under Section
302 IPC. The other sentences handed down to him are also maintained.

The appeals are accordingly allowed. The learned Addi. Sessions Judge,
Kotputali is directed to take the respondents into custody for serving out the
sentences imposed on them.
B
B.K.M. Appeals allowed.

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