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Tuesday, June 14, 2016

Once the Court came to a finding that the prosecution has suppressed the genesis and origin of the occurrence and also failed to explain the injuries on the person of the accused including death of father of the appellants, the only possible and probable course left open was to grant benefit of doubt to the appellants. The appellants can legitimately claim right to use force once they saw their parents being assaulted and when actually it has been shown that due to such assault and injury their father subsequently died. In the given facts, adverse inference must be drawn against the prosecution for not offering any explanation much less a plausible one. Drawing of such adverse inference is given a go-bye in the case of free fight mainly because the occurrence in that case may take place at different spots and in such a manner that a witness may not reasonably be expected to see and therefore explain the injuries sustained by the defence party. This is not the factual situation in the present case. Therefore, we have no hesitation in allowing the appeal and acquitting the appellants of all the charges. We order accordingly. They shall be released from jail custody forthwith, if not required in any other case. The appeal is allowed.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.416 OF 2016
                 (Arising out of SLP(Crl.) No. 2301 of 2016)

Bhagwan Sahai and Anr.                       …..Appellants

      Versus

State of Rajasthan                                 …..Respondent


                               J U D G M E N T


SHIVA KIRTI SINGH, J.

1.   Both the appellants have assailed the impugned  judgment  of  the  High
Court of Judicature for Rajasthan at Jaipur Bench  whereby  Criminal  Appeal
No. 1235 of 2011 was disposed of by the impugned judgment  and  order  dated
14.1.2016.  The High Court set aside the conviction of the appellants  under
Sections 307 and 307/34 of the IPC respectively but found them guilty  under
section 308/34 of the IPC.   The  High  Court  also  set  aside  appellant’s
conviction under Section 326 and 326/34 IPC respectively in  view  of  their
being found guilty under Section  308/34  of  the  IPC  but  maintained  the
conviction under Sections 323 and 324 of the IPC.  For  the  offences  under
Section 308/34 IPC the appellants were  inflicted  with  punishment  of  two
years rigorous imprisonment alongwith a fine  of  Rs.500/-  with  a  default
clause. For offences under Sections 323 and  324  of  the  IPC,  the  lesser
sentence awarded by the trial court were maintained.
In order to appreciate the submissions advanced on behalf of the  appellants
that even if the allegations against them were to be accepted as true,  they
are entitled to acquittal on  the  plea  of  right  of  private  defence  of
person, it is necessary to notice the  prosecution  case,  the  injuries  on
appellant No.1 and his parents, including his father  who  received  serious
injuries that proved fatal and whether the prosecution  have  been  able  to
offer any explanation for the injuries on the side of the accused.
According  to  the  prosecution  case,  two  appellants  who  are   brothers
alongwith female family members, Guddi Devi, Seema and Gulab Devi formed  an
unlawful assembly in their village on 4.5.2008  at  10.00  a.m.  Armed  with
lethal weapons they went near the “Bada” of Jagram and  caused  injuries  to
Sajana Devi with blunt weapon, simple injury to Jagram and  his  wife  Malli
Devi with blunt as well as incised weapon and also caused simple as well  as
grievous  injuries  to  Kailash  Chand  with  blunt  and   incised   weapon.
According to prosecution the offences under Sections  147,  148,  323,  324,
326 and 327 read with Section 149 of the IPC were committed by  the  accused
persons on account of old enmity between the parties.
The defence of the accused persons  is  denial  of  the  occurrence  in  the
manner alleged.  According to the accused persons, the prosecution  case  is
false. They examined Dr. Suresh Chand Meena and Bhagwan Sahai Meena  as  PW1
and PW2 and also  proved  documentary  evidence-exhibits  D1  to  D11.   The
defence witnesses were examined to support the contention that  the  members
of the prosecution party had beaten one Kanchan, father  of  the  appellants
and as a result he subsequently died. These  injuries  were  proved  by  Dr.
Suresh Chand Meena who also proved injuries of Gulab Devi and others.
The Trial Court noticed the defence case but failed  to  discuss  the  same.
The defence witnesses were neither commented upon nor there was any  comment
upon the defence exhibits and injuries sustained on their side.
The High Court in the impugned judgment has taken a mechanical note  of  the
defence  witnesses  1  and  2  and  thereafter  has  given   the   following
observations while noticing the injuries of Kanchan, and  of  the  appellant
Bhagwan Sahai Meena and his mother Gulab Devi:-
      “Appellants were tried in case arising out of cross version. It is  to
be noted that in the occurrence, Kanchan father of both the  appellants  had
died. Appellant Bhagwan Sahai, his  mother  Gulab  Devi  acquitted  accused,
Seema  acquitted  accused  and  appellant  Satish  had   suffered   injuries
alongwith Jalli Devi. In respect of cross case, a separate appeal  has  been
filed bearing D.B. Criminal Appeal No.1255/2011. The trial court  had  given
a finding that  there  was  a  free  fight  between  both  the  parties  and
therefore, had convicted the accused for their individual liability.

      In the occurrence, Kanchan Lal father of the appellants  had  received
following injuries:-

      “1. Lacerated wound with bleeding 6 cm  x  1  cm  bone  deep  on  left
parietal region of scalp.

      2. Lacerated wound with bleeding 2 cm x ½ cm on  occipital  region  of
scalp.”

      Bhagwan Sahai appellant also received two injuries and the  same  were
noted in the injury report as under:-

      “1. Lacerated wound 3 cm x ½ cm x ½ cm on palmar  aspect  of  base  of
left thumb.

      2. Lacerated wound 1½ cm x ½ cm x ½ cm on  right  parietal  region  of
scalp.”

      Gulab Devi mother  of  both  the  appellants  had  also  received  two
injuries and same are noted as under:-

      “1. Lacerated wound with bleeding 1 cm x ½ cm x ½ cm on forehead.

      2. Bruise (reddish) 10 cm x 2 cm over right shoulder.”

  The High Court has also noted that both the sides had taken  a  plea  that
the land in question where the  occurrence  had  taken  place  is  in  their
possession.  One of the injured Malli Devi-PW6 also  deposed,  as  noted  by
the High Court, that the parties were having dispute with the  accused  over
land.  The High Court has also noted the Judgment of this Court in the  case
of Lakshmi Singh and others v. State of Bihar[1]  which was relied  upon  by
the counsel for the accused persons in support of private  defence  and  for
acquittal on the ground of non-explanation of  death  and  injuries  on  the
side of the accused.  The  High  Court  drew  correct  inferences  from  the
aforesaid  judgment  but  proceeded  to  convict  the  appellants   on   the
misconceived ground that since both the parties had withheld the origin  and
genesis of the occurrence and since it cannot  be  determined  as  to  which
party was the aggressor, the case had to  be  decided  against  the  accused
persons treating it as a case of free fight between the parties.
The aforesaid view of the High Court is devoid of legal  merits.   Once  the
Court came to a finding that the prosecution has suppressed the genesis  and
origin of the occurrence and also failed to  explain  the  injuries  on  the
person of the accused including death of father of the appellants, the  only
possible and probable course left open was to grant benefit of doubt to  the
appellants.  The appellants can legitimately claim right to use  force  once
they saw their parents being assaulted and when actually it has  been  shown
that due to such assault and injury their father subsequently died.  In  the
given facts, adverse inference must be drawn  against  the  prosecution  for
not offering any explanation much less a  plausible  one.  Drawing  of  such
adverse inference is given a  go-bye  in  the  case  of  free  fight  mainly
because the occurrence in that case may take place at  different  spots  and
in such a manner that a witness may not reasonably be expected  to  see  and
therefore explain the injuries sustained by the defence party. This  is  not
the factual situation in the present case.
Therefore, we have no hesitation in allowing the appeal and  acquitting  the
appellants of  all  the  charges.   We  order  accordingly.  They  shall  be
released from jail custody forthwith, if not required  in  any  other  case.
The appeal is allowed.


                                                          .…………………………………….J.
                                    [DIPAK MISRA]


                         ……………………………………..J.
                          [SHIVA KIRTI SINGH]
New Delhi.
June 03, 2016.
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[1]    1976 (4) SCC 394

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