STATE OF RAJASTHANversusBHAWANI AND ANR.

A                            ST ATE OF RAJASTHAN
                                       v.
                              BHA WAN! AND ANR.

                                  JULY 31, 2003

B             [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 offwe 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 ATE OF RA.IASTHAN v. BHA WANI                     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 have
been proved by the statement of PW26 who conducted post-mortem                  H
    998                   SUPREME COURT REPORTS (2003] SUPP. I S.C.R.

A   examination on their bodies. Amongst the non-injured witnesses are PWI I
    the wife and PWl2 the daughter of one of the deceased and there is no
    reason to doubt their presence on the spot. Similarly, presence of PWs 13
    and 14 on the place of occurrence cannot be doubted as their house is
    situated at the corner of Nohara. Their testimony finds complete
B   corroboration from the medical evidence. In fact, the testimony of five
    injured witnesses is more than sufficient to establish the charge against
    the accused-respondents. However, High Court did not at all advert to
    this important piece of evidence and has chosen to rely upon some trifling
    and insignificant circumstances to dit>card the prosecution case.
                                                                   11003-D-HI
c
          3. Since in the present case, High Court has reversed the finding
    recorded by the trial Court without considering and taking into account
    the testimony of eye-witnesses, there is a clear infraction of Section 386
    Cr.P.C. and the order of acquittal passed by it is likely to be set aside on
    account of this serious error. 11004-H; 1005-AI
D                                                    !
          Amar Singh v. Ba/winder Singh and Ors., JT (2003) 2 SC I, relied on.

          4. High Court has accepted the testimony of the hostile witnesses as
    gospel truth for throwing overboard the prosecution case which had been
E   fully established by the testimony of several eye witnesses, which was of
    unimpeachable character. The fact that the witness was declared hostile
    by the Court at the request of the prosecuting counsel and he was allowed
    to cross-examine the witness, no doubt furnishes no justification for
    rejecting enbloc the evidence of the witness. But the Court has at least to
    be aware that prima facie, a witness who makes different statements at
F   different times has no regard for truth. His evidence has to be read and
    considered as a whole with a view to find out whether any weight should
    be attached to the same. The Court should be slow to act on the testimony
    of such a wit11ess and, normally, it should look for corroboration to his
    evide11ce. 11005-H, F-GI

G        5. Relying upon the testimony of PW4, PW8 and PW9, High Court
    has hel<I that there was cross-firing. These witnesses had not supported
    the prosecution case and had been declared hostile. PWs 8 and 9 did not
    belong to the concerned village and had clearly stated that they did not
    know or identify the accused-respondents and also the three absconding
H   accused. These witnesses having stated that they did not know or identify
                   STATE OF RAJASTHAN v. BHAWANI                       999
the five accused who are alleged to have been armed with fire arms and         A
are alleged to have caused injuries to the injured and deceased, their
testimony to the effect that there was a cross firing is absolutely
meaningless. Such a statement that there was cross firing can only be given
by a person who knows and identifies both the parties namely the accused
and also the complainant party (the injured and the deceased). High Court      B
has wrongly placed great reliance upon the circumstance of cross firing
for doubting the prosecution case. 11005-B-EI

      6. High Court has extensively relied upon the site plan prepared by
the investigating officer, drawing an inference that the place wherefrom
the accused are alleged to have fired upon the deceased, the shot could        C
not have hit the houses on the eastern side of the Nohara. Many things
mentioned in the site plan have been noted by the investigating officer on
the basis of the statements given by the witnesses. Obviously, the place
from where the accused entered the Nohara and the place from where they
resorted to firing is based upon the statement of the witnesses. These are
clearly hit by Section 162 Cr.P.C. What the investigating officer personally   D
saw and noted alone would be admissible. Therefore, the findings recorded
by the High Court on the basis of the site plan prepared by the
investigating officer whereby it discarded the prosecution case is clearly
illegal being based upon inadmissible evidence and has to be set aside.
                                                             11006-B-C, HI     E
     Tori Singh and Anr. v. State of UP., AIR (1962) SC 399, relied on.

      7. The eye-witnesses have consistently deposed that accused 'H' and
'A', were armed with country-made pistols and in such cases it is difficult
to visualize what was the nature of the cartridges or bullets used.            F
Therefore, even assuming that some empty cartridges of 303 bore were
recovered, it could not affect the prosecution case in any manner.
                                                               11007-B-CI

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 421                  G
of 1996.

     From the Judgment and Order dated 31.1.1991 of the Rajasthan High
Court in D.B. Crl. A. No. 282 of 1988.

     Manish Singhvi, K.V. Bharati Upadhyay, Ranji Thomas and V.N.
Raghupathy for the Appellant.                                                  H
    1000                   SUPREME COURT REPORTS (2003] SUPP. I S.C.R.

A          Yunus Malik, Yani Singh and Gopal Singh, for the Respondents.

           Mis. L.P. Aggawalla & Co. (NP) for Respondent.

           The Judgment of the Court was delivered by

B         G.P. MATHUR, J. I. State of Rajasthan has preferred this appeal by
    special leave against the judgment and order dated 31.1.1991 of Jaipur Bench
    of High Court of Rajasthan by which the appeal preferred by the respondents
    against their conviction and sentence was allowed and they were acquitted.
    The learned Additional Sessions Judge, Kishangarh (Alwar) had convicted
    the respondents under Sections 148, 307, 302 and 448 JPC and had sentenced
C   them to one year RI, 7 years RI and a fine of Rs. I000, imprisonment for life
    and a fine of Rs. I00 and one month RI respectively under each count. The
    respondent No. I Bhawani had been further convicted under Section 3/25 of
    the Arms Act and had been sentenced to one year RI and a fine of Rs.500.

D         2. According to the prosecution, the incident took place at about 5.30
  p.m. on 21.12.1985 in village Bhajnawas when PW! Daya Ram was cutting
  fodder in his Nohara. The respondents Bhawani armed with gun, Hari Singh
  armed with country-made pistol and three others namely Kishanlal armed
  with gun, Ramjilal armed with pistol and Amilal armed with country-made
  pistol suddenly came there and after giving abuses, started firing from their
E respective weapons. It is said that some other persons who were armed with
  lath is and farsies were standing outside the Nohara. As a result of firing, two
  persons, namely, Deshraj and Hoshiar died on the spot and several others
  received gunshot injuries. An FIR of the incident was lodged by PW! Daya
  Ram, brother of Deshraj, deceased, at 8.00 p.m. on 21.12.1985 at P.S.
  Mundawar, which is 17 kilometers from the place of occurrence in which 16
F persons were named as accused. The motive for the assault is said to be a
  litigation regarding the Nohara which was pending between the parties in the
  Court of SOM, Kishangarh. On the basis of the FIR, a case was registered
  and usual investigation followed. Three accused, namely Kishanlal, Ramjilal
  and Amilal were not prosecuted as they had absconded. The prosecution,
G however, submitted charge-sheet against 35 accused. The learned Additional
  Sessions Judge held that from the evidence on record it was proved beyond
  doubt that Bhawani, Hari Singh, Kishanlal, Ramjilal and Amilal had fonned
  an unlawful assembly and in prosecution of their common object they had
  trespassed into the Nohara and had caused death of Deshraj and Hoshiar and
  gunshot injuries to others by firing at them. The remaining accused who were
H alleged to have been standing outside the Nohara and were alleged to have
         STATE OF RA.IASTl-IAN v. BHAWANI [G.P. MATHUR, .I.]          1001

been armed with lathis and farsies and had not been assigned any specific A
role of causing any injury to anyone, were acquitted. The respondents Bhawani
and Hari Singh preferred an appeal against their conviction and sentence
which has been allowed by the High Court by the judgment and order which
is under challenge in the present appeal.

      3. Before we deal with the submissions made by learned counsel for the B
parties, it will be advantageous to briefly take note of the evidence which has
been adduced by the prosecution. PW I Daya Ram has st::t.:d that a litigation
regarding Nohara was going on with Kishanlal (absconding accused) in the
Court of SOM, Kishangarh, due to which the accused bore enmity with him.
At about 5.30 p.m. on the date of the incident, he was cutting fodder in the C
Nohara, when Bhawani and Kishanlal armed with guns, Hari Singh and Amilal
armed with country-made pistols, Ramjilal armed with pistol and 11 other
accused armed with lathis and farsies came there. Kishanlal gave abuses and
thereafter all the five accused armed with fire arms started firing from their
respective weapons. Deshraj, Leela, Daulat, Ratan, Makhan and Babula! who
were sitting in the Baithak came outside, after hearing the abuses and sound D
of gunfire. The accused also fired upon them due to which they received
gunshot injuries. The sound of gunfire also attracted Bholu, his wife Santosh
and Hoshiar to the Nohara, but they also fell victim to the shots fired by the
accused and fell down after receiving injuries. The remaining 11 accused
who were armed with lathis and farsies had surrounded the Nohara and did E
not allow anyone to escape. Deshraj and Hoshiar died on the spot as a result
of the injuries received by them. He has further stated that thereafter he went
to the Police Station Mundawar on the jeep of Babula! Vaidya, where he
lodged a written report of the incident at 8.00 p.m. Similar statements bave
been given by PW5 Bholu Ram (brother of Hoshiar, deceased), PW6 Leela
Ram, PWIO Babula!, PW! I Dhanni, P'.VJ2 Lali, PW13 Sajana, PWl4 Sarwan, F
PW! 5 Patori, PW 16 Santosh and PW 17 Bharpai. Out of these 11 eye witnesses
PW!, PW5, PW6, PWIO and PWl6 had received gunshot injuries and are,
therefore, injured witnesses. PW26 Dr. Srichand Sharma, who was posted at
Public Health Centre, Mundawar, conducted post-mortem examination on the
bodies of deceased Deshraj and Hoshiar Singh on 22.12.1985. Deshraj had G
received 22 gunshot wounds on chest in 7" diameter, I0 gunshot wounds on
abdomen, epigastric and umblical region besides number of gunshot wounds
on left forearm, right arm and face. The internal examination showed that
sternum and third, fourth, fifth and sixth ribs of both sides were punctured
and plura was perforated. Hoshiar Singh had sustained 12 gunshot wounds
on chest central part in 6" diameter, two gunshot wounds on epigastric region, H
    1002                   SUPREME COURT REPORTS [20031 SUPP. I S.C.R.

A two gunshot wounds on right and left forearms. Sternum and third, fourth
    and fifth ribs of both sides were fractured and plura was perforated. In the
    opinion of the Doctor, the ante-mortem injuries sustained by both the deceased
    were sufficient in the ordinary course of nature to cause death. PW2 I Dr.
    P.N. Aggarwal, who was posted in General Hospital, Alwar on 22.12.1985,
B   medically examined PW I Daya Ram and found gunshot injuries on his jaw,
    left side of neck, chest, shoulder and left arm. He also examined PW I0
    Babula! and found gunshot injuries on his right hip, thigh and left hand.
    PW23 Dr. Gopal Maheshwari, who was posted as Medical Officer at
    Government Hospital, Kot Putli on 22.12.1985, medically examined PW5
    Bholu Ram, PW6 Leela Ram, PW7 Makhan Ram, PW8 Daulat Ram, PW9
C   Ratan Lal and PWl6 Santosh on that day and found gunshot injuries on their
    person. Leela Ram had sustained pellet injuries on chest, abdomen, chin and
    below right eye. Bholu Ram had sustained multiple pellet injuries on chest,
    abdomen, arms and thighs and Smt. Santosh had sustained pellet injuries on
    abdomen and right auxilliary fold. PW22 Mahesh Chand Dube was posted as
    Station House Officer at P.S. Mundawar on 21.12.1985. In his deposition, he
D   has given details of the various steps taken by him during the course of
    investigation of the case.

          4. PW2 Raja Ram, PW3 Babula!, PW4 Ram Singh alias Radheyshyam,
    PW7 Makhan, PW8 Daulat Ram and PW9 Ratan did not support the case of
E   the prosecution and were accordingly declared hostile.

        5. Learned counsel for the appellant has submitted that the High Court
  has not properly appreciated the evidence adduced by the eye-witnesses and
  has completely ignored their testimony which fully established the prosecution
  case. He has urged that out of 11 eye-witnesses who supported the prosecution
p case in their ~tatement in Court, 5 were injured witnesses who had all received
  serious gunshot injuries and as such there could not even be slightest doubt
  regarding their presence on the site. The remaining 6 eye witnesses were also
  resident of the same place and their houses were nearby and, therefore, they
  were the best witnesses of the incident. However, the High Court chose to
  place reliance upon the testimony of some of the witnesses who had been
G won over and had turned hostile and on the basis of their statements has
  discarded the prosecution case. Learned counsel has further submitted that
  the High Court has discarded the testimony of the eye-witnesses relying upon
  inadmissible evidence and as such the judgment of acquittal recorded in
  favour of the respondents is wholly illegal and deserves to be set aside.
H Learned counsel for the accused-respondents has, on the other hand, submitted
         STATE OF RA.IASTllAN r. BllAWANI \G.P. MATHUR . .I.]          1003
that the FIR of the incident was actually not lodged at 8.00 p.m. on 21.12.1985 A
 but was lodged much later and the same has been ante-timed. He has further
submitted that the eye-witnesses examined by the prosecution were all related
to the deceased and were, therefore, interested witnesses whose testimony
could not be relied upon. He has also assailed the evidence adduced by the
prosecution regarding recovery of gun from the possession of Bhawani accused B
which actually belonged to one of the accused himself. Lastly, he has urged
that on the evidence available on record two views were possible and since
the High Court had, on appraisal of evidence, found ti-;e prosecution case to
be doubtful, this Court should not interfere in an appeal against acquittal. In
support of this submission, learned counsel has placed reliance on Ashok
Kumar v. State of Rajasthan, AIR (1990) SC 2134, Arun Kumar and Anr. v. C
State of U.P., [ 1989] Supp. 2 SCC 322 and Bharwad Jakshibhai Nagjibhai
and Ors. v. State of Gujarat, [1995] 5 SCC 602.

       6. We have considered the submissions made by the learned counsel
for the parties and have gone through the entire evidence which is available
on record. The judgment of the High Court, with all respects, is most cryptic D
and highly unsatisfactory. 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
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 E
case 11 eye-witnesses have fully supported the prosecution case. Out of these
 11 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 persons, namely,
Bhawani, Hari Singh, Kishanlal, Ramjilal and Amilal came inside Nohara
and repeatedly fired from the weapons which they were carrying. According F
to the eye-witness account Deshraj and Hoshiar received gunshot injuries and
died on the spot. The injuries sustained by these persons have been proved
by the statement of PW26 Dr. Srichand Shaima, who conducted post-mortem
examination on their bodies. Amongst the non-injured witnesses PW! I Dhanni
is wife and PW12 Lali is daughter ofHoshiar deceased and there is no reason G
to doubt their presence on the spot. Similarly, PW13 Sajana is daughter and
PW 14 Sarwan is wife of Badlu and their presence on the place of occurrence
cannot be doubted as their house is situate at the corner of Nohara. Their
testimony finds complete corroboration from the medical evidence. In fact,
the testimony of five injured witnesses is more than sufficient to establish the
charge against the accused-r~spondents. However, the High Court did not at H
    1004                   SUPREME COURT REPORTS (2003] SUPP. I S.C.R.

A all advert to this important piece of evidence and has chosen to rely upon
    some trifling and insignificant circumstances to discard the prosecution case.

          7. Chapter XXIX of the Code of Criminal Procedure deals with appeals
    and Section 385 deals with procedure for hearing appeals not dismissed
    summarily and Section 386 deals with power of the appellate Court. The
B   content and scope of these provisions was recently explained by a Bench to
    which two of us were parties in Amar Singh v. Ba/winder Singh and Ors., JT
    (2003) 2 SC I and relevant part of para 7 reads as under :

           "7 ................ Section 385 Cr.P.C. lays down the procedure for hearing
           appeal not dismissed summarily and sub-section (2) thereof casts an
c          obligation to send for the records of the case and to hear the parties.
           Section 386 Cr.P.C. lays down that after perusing such record and
           hearing the appellant or his pleader and the Public Prosecutor, the
           Appellate Court may, in an appeal from conviction, reverse the finding
           and sentence and acquit or discharge the accused or order him to be
D          re-tried by a Court of competent jurisdiction. It is, therefore, mandatory
           for the Appellate Court to peruse the record which will necessarily
           mean the statement of the witnesses. In a case based upon direct eye-
           witness account the testimony of the eye-witnesses is of paramount
           importance and if the Appellate Court reverses the finding recorded
           by the Trial Court and acquits the accused without considering or
E          examining the testimony of the eye-witnesses, it will be a clear
           infraction of Section 386 Cr.P.C. In Biswanath Ghosh v. State of
           West Bengal and Ors., AIR (1987) SC 1155 it was held that where
           the High Court acquitted the accused in appeal against conviction
           without waiting for arrival of records from the Sessions Court and
F          without perusing evidence adduced by prosecution, there was a flagrant
           mis-carriage of justice and the order of acquittal was liable to be set
           aside. It was further held that the fact that the Public Prosecutor
           conceded that there was no evidence, was not enough and the High
           Court had to satisfy itself upon perusal of the records that there was
           no reliable and credible evidence to warrant the conviction of the
G          accused. In State of UP v. Sahai and Ors., AIR (1981) SC 1442 it
           was observed that where the High Court has not cared to examine the
           details of the intrinsic merits of the evidence of the eye-witnesses and
            has rejected their evidence on the general grounds, the order of
           acquittal passed by the High Court resulted in a gross and substantial
            mis-carriage of justice so as to invoke extra-ordinary jurisdiction of
H
          STATE OF RAJASTHAN 1·. BHAWANI JG.I'. MATHUR. J.]              1005
        Supreme Cou11 under Article 136 of the Constitution."                     A
      Since in the present case, the High Court has reversed the finding
recorded by the trial Court without considering and taking into account the
testimony of eye-witnesses, there is a clear infraction of Section 386 Cr.P.C.
and the order of acquittal passed by it is likely to be set aside on account of
this serious error.                                                               B
       8. Relying upon the testimony of PW4 Ram Singh, PW8 Dau lat Ram
and PW9 Ratan, the High Court has held that there was cross firing. These
witnesses had not supported the prosecution case and had been declared
hostile. PW4 has stated that there was exchange of brickbats in which he also
received some injury and accordingly he took shelter inside a 'chappar' and C
thereafter he heard two or three loud sounds like that of crackers. He further
stated that he did not see any person firing from gun or pistol. The High
Court has misread his testimony while observing that the witness has stated
that there was cross firing. PW8 Dau lat Ram is resident of village Kalyanpur,
Tehsil Behrod. He says that he had gone to village Bhajnawas to purchase a D
bullock. Similarly, PW9 Ram Ratan is resident of village Barod, Tehsil Behrod.
Both of them do not belong to village Bhajnawas and have clearly stated that
they do not know or identify the accused-respondents Bhawani and Hari
Singh and also the three absconding accused. These witnesses having stated
that they do not know or identify the five accused who are alleged to have
been armed with fire arms and are alleged to have caused injuries to the E
injured and deceased, their testimony to the effect that there was a cross
firing is absolutely meaningless. Such a statement that there was a cross
firing can only be given by a person who knows and identifies both the
parties namely the accused and also the complainant party (the injured and
the deceased). The High Court has placed great reliance upon the circumstance F
of cross firing for doubting the prosecution case. The other reason given for
acquitting the accused has, therefore, no basis at alt.

       9. The fact that the witness was declared hostile by the Court at the
request of the prosecuting counsel and he was allowed to cross-examine the
witness, no doubt furnishes no justification for rejecting enbloc the evidence    G
of the witness. But the Court has at least to be aware that prima facie, a
witness who makes different statements at different times has no regard for
truth. His evidence has to be read and considered as a whole with a view to
find out whether any weight should be attached to the same. The Court
should be stow to act on the testimony of such a witness and, normally, it
                                                                                  H
    1006                    SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A should look for corroboration to his evidence. The High Court has accepted
    the testimony of the hostile witnesses as gospel truth for throwing overboard
    the prosecution case which had been fully established by the testimony of
    several eye witnesses, which was of unimpeachable character. The approach
    of the High Court in dealing with the case, to say the least, is wholly fallacious.

B          IO. The High Court has extensively relied upon the site plan prepared
    by the investigating officer for discarding the prosecution case and for this
    purpose has referred to the place from where the accused are alleged to have
    entered the Nohara, the place from where they are alleged to have fired upon
    the deceased and also has drawn an inference that the place wherefrom the
C   accused are alleged to have fired upon the deceased, the shot could not have
    hit the houses on the eastern side of the Nohara. Many things mentioned in
    the site plan have been noted by the investigating officer on the basis of the
    statements given by the witnesses. Obviously, the place from where the accused
    entered the Nohara and the place from where they resorted to firing is based
    upon the statement of the witnesses. These are clearly hit by Section 162
D   Cr.P.C. What the investigating officer personally saw and noted alone would
    be admissible. This legal position was explained in Tori Singh and Anr. v.
    State of UP., AIR (1962) SC 399 in following words :

            "A rough sketch map prepared by the sub-inspector on the basis of
            statements made to him by witnesses during the course of investigation
E           and showing the place where the deceased was hit and also the places
            where the witnesses were at the time of the incident would not be
            admissible in evidence in view of the provisions of S. I62 of the Code
            of Criminal Procedure, for it is in effect nothing more than the
            statement of the Sub-Inspector that the eye-witnesses told him that
F           the deceased was at such and such place at the time when he was hit.
            The sketch-map would be admissible so far as it indicates all that the
            Sub-Inspector saw himself at the spot; but any mark put on the sketch-
            map based on the statements made by the witnesses to the Sub-
            Inspector would be inadmissible in view of the clear provisions of
            S.162 of the Code of Criminal Procedure as it will be no more than
G           a statement made to the police during investigation. Therefore, such
             marks on the map cannot be used to found any argument as to the
             improbability of the deceased being hit on that part of the body
             where he was actually injured, if he was standing at the spot marked
             on the sketch-map."
H
          STATE OF RAJASTHAN v. BHAWANI [G.P. MATHUR. J.]                  1007
      Therefore, the findings recorded by the High Court on the basis of the A
site plan prepared by the investigating officer whereby it discarded the
prosecution case is clearly illegal being based upon inadmissible evidence
and has to be set aside.

       11. The High Court has also relied upon some very trifling and
insignificant matters like recovery of some live and empty cartridges which         B
the counsel for the accused before it submitted to be that of a 303 bore
rivolver or gun. Relying upon this recovery, it has been held that as according
to the eye-witnesses none of the accused had a 303 rivolver or gun, the
prosecution case was rendered doubtful. The eye-witnesses have consistently
deposed that Hari Singh and Amilal, accused were armed with country-made            C
pistols and in such cases it is difficult to visualize what was the nature of the
cartridges or bullets used. Therefore, even assuming that some empty cartridges
of 303 bore were recovered, it could not affect the prosecution case in any
manner.

       12. Having given our careful consideration to the material on record,        D
we are clearly of the opinion that the prosecution had succeeded in establishing
its case against the accused-respondents beyond any shadow of doubt and the
learned Additional Sessions Judge had rightly convicted and sentenced them.
The judgment of the High Court, in our opinion, 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           E
had succeeded in establishing its case beyond any shadow of dou_bt and
accused-respondents are clearly guilty of the charges levelled against them.

      13. In the result, the appeal is allowed and the judgment and order
dated 31.1.1991 of the High Court is set aside and that of the Additional F
Sessions Judge is restored. The accused-respondents shall undergo the sentence
imposed upon them. The CJM concerned shall take all steps available in law
to take the accused-respondents in custody.

K.K.T.                                                         Appeal allowed.