HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
AFR
Criminal Appeal No.2270 of 1981
Azad Khan & another .........................................Appellant
Versus
State of U.P. ....................... .....................Opposite Party.
Hon'ble Vinod Prasad, J.
This appeal arises out of judgment and order dated 18.9.1981 rendered by Session's Judge, Kanpur in S.T. No. 595 M of 1980, State Vs. Azad Khan & others, u/s 302/34, 324/34 I.P.C. P.S. Bithoor, District Kanpur. By the impugned judgment, both the appellants, though acquitted u/s 302/34 and 324/34 but were convicted u/s 304(II) I.P.C. and were sentenced to 7 years R.I. Their another sibling brother Fazal Khan, however, was acquitted of all the charges by the Ld. trial Judge, by the impugned judgment.
Background prosecution allegations against the appellants indicate that on 1.10.1978 at 3.45 p.m. Jamal, P.W.5, was grazing his she-goats near the agricultural field of appellant Azad Khan. The cattle intruded into lahi (mustard) field of the appellants, on which, appellant Azad Khan slapped Jamal, P.W.5, who, crying, returned back to his house and narrated the incident to his father Hazi Saleem (deceased). Hazi Saleem came to appellant's field and remonstrated them for slapping his son. This infuriated the appellants, and their acquitted brother, who all started assaulting Hazi Saleem with their respective weapons. Accused Afzal Khan was armed with an axe, whereas rest of the two were armed with lathi. Commotion of scuffle between both the fractions attracted Haleem, P.W.2, Kamal, sons of the deceases, Dullu, P.W.3, and Rasuli, P.W.4 at the assault scene, who all intervened into the marpeet and saved the deceased. Accused Azad Khan was apprehended at the spot by the prosecution witnesses, whereas two others escaped from the spot. Sustaining injuries Hazi Saleem, injured, later on deceased, squatted on the ground and became unconsciousness. On a cot, he was brought to his house by his sons along with apprehended accused Azad Khan. Haleem, P.W.2, got scribed a F.I.R., Ext. Ka.2, from one Tahir Husain, travelled to police station Bithoor and lodged his FIR as Crime No.147 of 1978, under Section 324 I.P.C. at 5.30 p.m. same day.
Head Constable Ram Badan Singh, had registered the crime by preparing Chik F.I.R., Ext. Ka 13 and GD entry, Ext. Ka-14. After demise of injured Hazi Saleem, same constable had converted the crime under Section 302 I.P.C. by inking GD entry, Ext. Ka-15.
Investigation into the crime was conducted by Lal Bihari, S.I., P.W. 7, who had interrogated the injured and the scribe at the police station. He had also interrogated accused Azad Khan at the police station itself and thereafter had penned down informant's statement u/s 161 of the Code. At informant's pointing out I.O. had conducted spot inspection and had prepared site plan Ext. Ka-4. Thereafter two accused Afzal and Fazal were interrogated by him. On 29.10.1978, I.O. came to Lucknow where he interrogated S.I., who had conducted inquest on the cadaver of the deceased and thereafter had recorded statements of witnesses Ram Pratap and Dullu P.W.3. Thereafter, attachment proceedings u/s 82, 83 Cr.P.C. were conducted, vide Ext. Ka-6, Ka-7, Ka-8 and concluding investigation I.O. had charge sheeted the accused vide Ext. Ka-5.
Injured was medically examined by P.W.1 Dr. V.D. Agarwal on 1.10.1978 at PHC Kalyanpur at 7.00 p.m. who had noted following injuries in his medical examination report vide vide Ext. Ka-1.
"Examined Sri Haji Saleem Ahmad aged about 50 years S/o Karim Ahmad R/o Bithoor Naya, P.S. Bithoor District Kanpur on 1.10.78 at 7 P.M. brought and identified by C.No.691 Sri Surya Prakash of P.S. Bithoor, Kanpur.
M/I. : A black mole on left clavical away from its medial end.
Injuries:
1. Lacerated wound 1 1/4" x 1/4" x bone deep on scalp, 2 1/2" above middle point of left eyebrow and 4 1/2" above left ear with traumatic swelling 4" x 4" all around bleeding present, oblique direction.
2. Lacerated wound 1/4" x 1/8" x skin deep on scalp 2 1/4" above medial 1/4th point of left eyebrows, bleeding present.
3. Abrasion 3/4" x 1/2" on left cheek.
4. Fracture of medial 1/3rd of left clavical with swelling up 1" x 1". Blackening of both eye-lids of both eyes present with oedematous swelling pupils could not be seen due to marked swelling of eyelids of both eyes. Pt. is unconscious, involuntary movement of Rt. upper extremities present, pulse 96 p.m. and no vol. BP 100/60 M.M. of Hg. G.C. Poor."
All injuries caused by blunt object. Duration fresh, injury No.(4) is grievous and (3) simple and rest U.O. Patient is referred to L.L.P. Hospital Kanpur for immediate admission and further treatment and observation. Inj. No. (6) simple and (5) U.O."
According to the noting by the doctor patient was unconscious and underneath his eyes blackening and swelling were present, his pupils were dilated and general condition was poor. All the injuries sustained by the injured were caused by blunt object and were fresh in duration and injury no. 4 was grievous in nature. Injury no.3 was simple and rest of the two injuries were kept under observation. P.W.1 had referred the injured to L.L.P. Hospital, Kanpur Nagar for immediate admission and better management of his injuries.
After demise of the injured, autopsy of his cadaver was performed by Dr. V.N. Baghre P.W.6 on 3.10.1978 at 3.15 p.m. According to the doctor's estimation, deceased was 50 years of age and he had expired at 7.20 a.m. in Civil Hospital, Lucknow. Following ante-mortem injuries were noted by P.W.6 Dr. V.N. Baghre in the autopsy report Ext. Ka-2.
ANTI MORTEM INJURIES
"1. Hospital Bandage and dressing on the head and across to left shoulder and leucoplast strips on the front of neck.
2. Abraded contusion 15cm x 4cm on the top of left shoulder.
3. St. wound (3 stitch) 3.5cm long on the head on left side (P.T.) from left eye and 11cm from left ear on removing the stitches return of wound was lacerated and was bone deep.
4. Abrasion 2 cm x 2 cm on the left side face 15 from nose.
5. Abrasion 2 cm x 1cm. On the Rt. infra clavicular the region. On opening Echymoses present on whole of scalp with fracture depressed and communited of frontal bone extending to parietal bones and both and both temporal bones 22 cm. X 21 cm membranous are lacerated and congested, Brain lacerated under the front bone 3.5 cm. X 2 cm with subdural hemorrhage-14 cm. X 12 cm. Wt. 1250 gm. There is also liner fracture (SIC) ? Extending from one end to other end a cross the (SIC) ? Is continuant with fracture of skull, left clavicle is fracture and middle ribs 1st to 6th are fracture out latterly on left side. Pleura is lacerated. Plural cavity contains dark clotted and fluid blood present. Left lung is lacerated (P.T.) sternum fractured. Left lung is lacerated (P.T.) sternum fractured on the space between 1st, 2nd side."
According to the doctor's estimation death had occurred due to shock and hemorrhage due to injury and multiple fractures, as deposed by him and injuries no.1 to 3 collectively were sufficient in the ordinary course of nature to cause death.
Charge-sheeting of the accused resulted in their summoning and finding their guilt triable by Session's Court, their case was committed to the court of Session's, where it was registered as S.T. No.595 M of 1980. Session's Judge, Kanpur charged the accused under Sections 302/34 and 324/34 IPC on 21.5.1981, which charges were denied by all of them, who claimed to be tried and therefore, to succeed and establish their guilt, trial procedure was undertaken during course of which, prosecution examined four fact witnesses viz: Haleem informant P.W.2, Dullu P.W.3, Rasuli P.W.4, Jamal P.W.5. Two doctors, who had examined injured/deceased medically and had conducted post-mortem examination Dr. S.C. Katiyar and Dr. V.N. Baghre, were examined as P.W.1&P.W.6. I.O. of the crime Lal Bihari was tendered as P.W.7. Court had examined doctor S.K. Chaddha as C.W.1.
In their statements under Section 313 Cr.P.C., accused pleaded exercise of right of private defence. Azad Khan stated that Jamal was grazing she-goats in his field and when he remonstrated him, he returned to his house and thereafter came back along with his brother Sagir and others, who started belaboring him. Hazi Saleem sustained injuries in that scuffle and fell down on the ground. It was also stated that after sustaining injuries, injured had become unconscious and was unable to speak. To substantiate their defence, accused had examined Rama Shanker Tiwari, D.W.1, as a defence witness.
Vide impugned judgment and order, learned Session's Judge, Kanpur Nagar held that prosecution had failed to substantiate charge under Section 324/34 IPC against all the accused persons and therefore, acquitted them of the said charge. Learned trial Judge further concluded that so far as Fazal Khan was concerned, prosecution had remained unsuccessful in establishing his guilt beyond all reasonable doubt and therefore, had acquitted him of all the charges. It, however, concluded that so far as the two appellants are concerned, prosecution has anointed their guilt beyond any shadow of doubt u/s 304(II) I.P.C. and therefore, convicted them for the said crime and sentenced them to 7 years R.I., which conviction and sentence is under challenged in the instant appeal.
In the backdrop of above facts, I have heard Sri D.M. Singh, learned amicus curiae for the appellants and Sri Patanjali Mishra, learned AGA for the respondent state.
Castigating impugned judgment, learned amicus curiae submitted that learned trial Judge committed patent error of law in convicting the appellant while recording findings, which unerringly disproved prosecution case and three real sibling brothers were framed in a feigned and fabricated version alleged by the prosecution. Real fact were that, it was the prosecution side, who was the aggressor and appellants had exercised right of private defence of person and property both, while defending the person of Azad Khan and their property(agricultural crop), which was being grazed by the she-goat of informant side. It was further submitted that the motive for committing the crime lay with the prosecution side as they had created mischief of getting accused crops grazed by the she-goat. None of prosecution fact witnesses were wholly reliable as learned trial Judge himself disbelieved presence of one of the accused during the incident as was alleged by fact witnesses and hence no implicit reliance could have been placed on them to hold appellants guilty and consequently, conviction of the appellants is unsustainable. Eye witness account is also dicey and does not indicate that the incident occurred as alleged by the prosecution as allegation regarding use of sharp edged weapon (kulhari) axe, during the incident, is a disproved fact and learned trial judge acquitted all the accused of the charge u/s 324/34 I.P.C. and for this reason also, guilt of the appellants was not proved beyond all reasonable doubt. It was further submitted that the accused were required to prove their defence on preponderance of probabilities only and they were not required to establish their defence to the hilt beyond all reasonable doubt. Findings were recorded by the Session's Judge are contrary to the evidences on record and since, prosecution had failed to furnish any explanation of the injuries sustained by Azad Khan accused, none of the prosecution witnesses can be taken to be wholly reliable nor any credence can be attached to their testimonies. It was lastly contended that in case, the appellants' appeal do not succeed on merits, then looking to the period already undergone by and sufferings of the appellants, their sentence be reduced suitably and they deserves a compassionate consideration in matter of sentence.
Learned AGA argued to the contrary and contended that prosecution has anointed appellant's guilt unambiguously, clear of all doubts and, therefore, impugned judgment does not require any interference of this Court. Number of injuries sustained by the injured deceased itself is an indication, as to who was the aggressor and that is the safest criteria to determine, as to who had launched the attack submitted learned AGA. It was next contended that learned Session's Judge has not committed any error either in marshaling of facts, critical appreciation thereof and recording a finding of conviction and sentence. Appeal lacks merit and be dismissed concluded learned AGA.
I have pondered over rival contentions and have critically appreciated both oral and documentary evidences. Perusal of the record indicate that some of the facts in the present case are not in dispute and, therefore, so far as those aspects are concerned, they stands proved. First of all, there is no controversy regarding date, time and place of the incident. Genesis of the incident also is not in dispute, as both sides admit that the incident had occurred because of grazing of she-goat of the lahi field belonging to the accused appellants. It is also not in dispute that Jamal was present at that point of time and it was because of the slap of the Jamal that the incident had occurred. Thus, on all these aspects, prosecution was not required to establish it's case beyond all reasonable doubt, as these are admitted facts, which were not required to be proved. The only controversy, which remains to be considered is, as to whether the prosecution version of assault by the accused is a probable case or the defence of the appellants of assault being launched on accused Azad Khan and exercise of right of private defence is a more confidence inspiring and credible story. When evidences are analyzed in the aforesaid light, it transpires that the learned trial Judge himself was in doubt regarding genesis of the incident as was stated by the prosecution. It had recorded many findings, which goes to demolish the prosecution charge in it's entirety. First of all, learned trial Judge has disbelieved the statement made by the injured to the Investigating Officer in the hospital, which by virtue of death of the deceased was his dying declaration. It has recorded a finding "the I.O. Lal Bihari has referred to the same vide Ext. Ka-16 and if genuine, this could be made use of as the dying declaration of the deceased. There is inherent evidence, however, to show that this alleged statement is thoroughly unreliable as genuine. P.W. 2 Haleem accompanied his father to the police station. He points that Haji Saleem Ahmad was unconscious at the field when the witness reached at that place. He brought him to the house on the cot but then too he was not in position to speak. He admits also that his father did not utter a word at the hospital. Even at the police station, according to him, Haji Saleem Ahmad was only nodded uttering han hun." After noting these features of the evidences, learned trial Judge had concluded that "Haji Saleem Ahmad could not have been in fit condition of mind at the time to have given the said statement which must, therefore, be discarded from consideration. In such a view, the most important evidence tendered by the prosecution in the form of dying declaration of the injured has lost all its corroborative value and had indicated that all was not well during investigation and the prosecution side had even ventured to fabricate a story against the appellants."
Further, learned trial Judge held "as regards the accused Afzal Khan, the case of the prosecution stands on doubtful footing. No injury of any kind is alleged or shown to have been caused to him ..................... In the course of evidence, it was narrated that there was only one kulhari wielded by Afzal Khan and others had lathis, which is not consistent."
After recording such findings, so far as accused Fazal Khan was concerned, Ld.trial Judge has held "in my view this accused is entitled to the benefit of doubt."
State has not come up in appeal against acquittal of the said accused Fazal Khan nor has challenged the findings recorded by learned trial Judge.
Further learned trial Judge wrongly recorded that the accused appellants were being aggressors. It was recorded by him that "even assuming that the accused has acted in exercise of right of self defence, the same was exceeded in having caused the injuries of the kind upon Haji Saleem Ahmad. It arises in a sudden fight in the heat of passion." If the trial Judge was of the opinion that the incident had occurred all of sudden in the heat of passion, then to hold appellants guilty for the charge under section 304(II) I.P.C. was wholly unjustified. From the perusal of the injury as well as autopsy report of the injured, it transpires that injury nos. 2, 3, 4, 5 and 6 of the injured/deceased as was described by P.W.2 in the medical examination report were not fatal at all. These injuries were either of insignificant nature or were non vital part of the body, which could not have contributed to the death of the deceased at all. It was only injury no. 1, which was grievous in nature and was the cause of his death. Even in the autopsy report, from the injuries, which were noted by the doctor, injury nos. 1, 3 and 4 could not have caused the death of the deceased. It was only injury no. 2, which was the cause of his demise. In such a view, the deceased has sustained only a single fatal injury and his rest of the injuries were not sufficient in the ordinary course of nature to cause death. Opinion by P.W. 1 also indicate that but for a solitary injury, rest of the injuries sustained by the deceased were not sufficient in the ordinary course of the nature to cause his death or were so eminently dangerous that in all probability, they could have resulted in his death. In such a view, regarding a finding that the accused had exceeded right of private defence, the same is against relevant material on record and cannot be sustained.
Further learned trial Judge also committed mistake in judging accused as aggressors, whereas the fact indicated that it was the prosecution side which had gone to the accused and had picked up the quarrel. It was admitted that the incident had occurred in the mid field of appellant's Lahi field. Site of the incident is fixed by dripping and recovery of blood from that field which unambiguously indicated that deceased had trespassed into that field of the appellants. Against a trespasser appellants had a right to chase him away in legal exercise of right of private defence of property (crop). Appellants were at their field during the incident. In natural course of human conduct deceased must have been accompanied by his family members when he was proceeding to the appellant's Lahi field to remonstrate them for slapping his son. Thus what seems to be real happening is that it was prosecution side who had arrived at place of incident to pick up the fight. Ld. Trial Judge albeit cogitated over said aspect and observed that "it is true that Haji Saleem Ahmad and his sons might have felt annoyed in the natural course because of the beating or scolding done to Jamal over the petty issue, .........." but it fell in error in concluding otherwise that the appellants were the aggressors because the appellants "reacted shortly having felt aggrieved themselves." It also wrongly placed reliance on informant's testimonies after holding that he was not an eye witness of actual assault on his father. It also recorded a finding that the actual possession over the place of the incident lay with the appellants. It is further noted that presence of (P.W. 2) Jamal and accused Azad Khan at the place of the incident, is admitted and hence defence case spelt out by him could not have been brushed aside easily. He had sustained following injuries vide Ext. Kha-1 and was examined by Dr. S.K. Rastogi on 2.10.1978 at 2.30 P.M. at Kanpur.:-
"1. Abraded contusion 2cm x 3/4cm on the left front of parietal region 8cm above eye brow.
2. Contusion 6cm x 2cm on the back of left shoulder.
3. Contusion 3cm x 1cm on back of left arm middle.
4. Contusion 4cm x 1.5cm on back of left forearm lower 1/3rd.
5. Contusion 2cm x 1cm on antro lateral aspect on right thigh lower part."
Learned trial Judge has disbelieved his injuries for the reason that he had not got his medical examination done on the date of the incident itself. This could not have been a valid reason to disbelieve the defence story as his presence at the spot is not doubted, especially when Injuries sustained by the accused have been admitted by the fact witnesses during their depositions in Court. P.W. 2, during his cross examination was compelled to admit that Rasuli had carried a danda with him and he had assaulted the appellants from it. P.W. 3 also admitted the same fact during cross examination. He had further admitted that the chhari wielded by Rasuli had caused injury to Azad Khan and Fazal Khan accused although he expatiated his statement by saying that he had not seen the injuries to Afzal Khan but the fact remains is that the two appellants were also assaulted during the incident and they had sustained injuries. So is the statement of P.W. 4 when he had admitted that the only accused Azad Khan had sustained injuries but he had eschewed from divulging, as to who had caused the said injury. On a question put by the Court, he had admitted that he had wielded his danda two or three times, which had hit Azad Khan appellant. On an overall assessment of facts and circumstances of the case, I am of the view that the prosecution had not explained the injuries sustained by the accused in an incident which had occurred because of prosecution mischief and it were they, who had gone to the spot to pick up the quarrel after the she-goat had damaged appellant's Lahi crop. Why the prosecution suppress causing of injuries to the two appellants during the course of incident and in the examination-in-chief, creates a doubt the truthfulness of their story. Accused has to probabilize his story on preponderance of probability only unlike prosecution who had to prove it's case to the hilt clear of all doubts and consequently once appellants succeeded in showing that prosecution had suppressed injuries sustained in the same incident by the accused, it is hazardous to rely on their depositions which are not wholly true. Either these PWs were not present at the spot or they had narrated a fabricated version are the two inescapable conclusions. In this respect reliance can be had from apex court decision in Lakshmi Singh and others etc. vs. State of Bihar:AIR 1976 SC 2263, wherein it has been held by the apex court as under :-
"According to the Doctor injury No.1 was grievous in nature as it resulted in compound fracture of the fibula bone. The other two injuries were also serious injuries which had been inflicted by a sharp-cutting weapon. Having regard to the circumstances of the case there can be no doubt that Dasrath Singh must have received these injuries in the course of the assault, because it has not been suggested or contended that the injuries could be self-inflicted nor it is believable. In these circumstances, therefore, it was the bounded duty of the prosecution to give a reasonable explanation for the injuries sustained by the accused Dasrath Singh in the course of the occurrence. Not only the prosecution has given no explanation, but some of the witnesses have made a clear statement that they did not see any injuries on the person of the accused. Indeed it the eye-witnesses could have given such graphic details regarding the assault on the two deceased and Dasain Singh and yet they deliberately suppressed the injuries on the person of the accused, this is a most importance circumstance to discredit the entire prosecution case. It is well settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence. This matter was argued before the High Court and we are constrained to observe that the learned Judges without appreciating the ratio of this Court in Mohar Rai v. State of Bihar, (1968) 3 SCR 525 = (AIR 1968 SC 1281) tried to brush it aside on most untenable grounds. The question whether the Investigating Officer was informed about the injuries is wholly irrelevant to the issue, particularly when the very Doctor who examined one of the deceased and the prosecution witnesses is the person who examined the appellant Dasarath Singh also. In the case referred to above, this Court clearly observed as follows :
"The trial Court as well as the High Court wholly ignored the significance of the injuries found on the appellants. Mohar Rai had sustained as many as 13 injuries and Bharath Rai 14. We get it from the evidence of P.W.15 that he noticed injuries on the person of Mohar Rai when he was produced before him immediately after the occurrence. Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly probabilised. Under these circumstances the prosecution had a duty to explain those injuries ......... In our judgement the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilities the plea taken by the appellants."
This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow : (1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the present case has not correctly applied the principles laid down by this Court in the decision referred to above. In some of the recent cases, the same principle was laid down. In Puran Singh v. The State of Punjab, Criminal Appeal No. 266 of 1971 decided on April 25, 1975 = (reported in AIR 1975 SC 1674) which was also a murder case, this Court, while following an earlier case, observed as follows :
"In State of Gujarat v. Bai Fatima (Criminal Appeal No. 67 of 1971 decided on March 19, 1975) = (reported in AIR 1975 SC 1478) one of us (Untwalia, J.,) speaking for the Court, observed as follows :
"In a situation like this when the prosecution fails to explain the injuries on the person of an accused depending on the facts of each case, any of the three results may follow :
(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.
(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.
(3) It does not affect the prosecution case at all.
The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgement. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case."
It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:
(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version.
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the Court to rely on the evidence of PWs. 1 to 4 and 6 more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima, Criminal Appeal No. 67 of 1971 decided on March 19, 1975 : (Reported in AIR 1975 SC 1478) there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises."
Aforesaid view of the apex court has been consistently followed up till now. In Bihari Rai versus State of Bihar:AIR 2009 SC 18 it has been observed by the apex court as under:-
"13. The number of injuries is hot always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the Injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private 'defence. The defence has to further establish that the injuries so caused on the accused probabilises the version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. [See : Lakshmi Singh v. State of Bihar (AIR 1976 SC 2263). A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 deals with the subject-matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property. Section 99 lays down the limits of the right of private defence. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101, IPC define the limit and extent of right of private defence.
14. Sections 102 and 105, IPC deal with commencement and continuance of the right of private defence of body and property respectively. 'The right commences', as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat to commit the offence, although the offence may not have been committed but not until that there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues. In Jai Dev v. State of Punjab (AIR 1963 SC 612), it was observed that as soon as the cause for reasonable apprehension disappears and the threat has either been destroyed or has been put to route, there can be no occasion to exercise the right of private defence."
Adopting above view neither prosecution witnesses of fact are wholly reliable nor prosecution has offered any explanation of accused injuries nor it has proved clear of all doubts that accused were the aggressors. Conversely it has been probabilised that it was prosecution side which had approached the accused at their field and had picked up the fight and it's witnesses had suppressed the injuries sustained by the appellants and therefore in my opinion appellants are entitle to acquittal.
Residue of above discussion is that the appeal succeeds and is allowed. Conviction of both the surviving appellants for the charge under section 304(II) I.P.C., recorded by Session's Judge, Kanpur, through impugned judgment and order, are hereby set aside and they are acquitted of that offence and are set at liberty. Both the appellants are on bail, they need not surrender, their personal and surety bonds are discharged.
Let a copy of the judgment be certified to the trial court for it's intimation.
Dt.30.5.2012
Rk/Arvind/-
Hon'ble Vinod Prasad,J.
Sri D.M. Singh, learned Amicus Curiae has rendered valuable assistance in deciding the appeal, which was pending since last three decades and, therefore, he is directed to be paid Rs. 8,000/- as his fees by the office of this Court.
Dt.30.5.2012
Rk/Arvind/-
Reserved
AFR
Criminal Appeal No.2270 of 1981
Azad Khan & another .........................................Appellant
Versus
State of U.P. ....................... .....................Opposite Party.
Hon'ble Vinod Prasad, J.
This appeal arises out of judgment and order dated 18.9.1981 rendered by Session's Judge, Kanpur in S.T. No. 595 M of 1980, State Vs. Azad Khan & others, u/s 302/34, 324/34 I.P.C. P.S. Bithoor, District Kanpur. By the impugned judgment, both the appellants, though acquitted u/s 302/34 and 324/34 but were convicted u/s 304(II) I.P.C. and were sentenced to 7 years R.I. Their another sibling brother Fazal Khan, however, was acquitted of all the charges by the Ld. trial Judge, by the impugned judgment.
Background prosecution allegations against the appellants indicate that on 1.10.1978 at 3.45 p.m. Jamal, P.W.5, was grazing his she-goats near the agricultural field of appellant Azad Khan. The cattle intruded into lahi (mustard) field of the appellants, on which, appellant Azad Khan slapped Jamal, P.W.5, who, crying, returned back to his house and narrated the incident to his father Hazi Saleem (deceased). Hazi Saleem came to appellant's field and remonstrated them for slapping his son. This infuriated the appellants, and their acquitted brother, who all started assaulting Hazi Saleem with their respective weapons. Accused Afzal Khan was armed with an axe, whereas rest of the two were armed with lathi. Commotion of scuffle between both the fractions attracted Haleem, P.W.2, Kamal, sons of the deceases, Dullu, P.W.3, and Rasuli, P.W.4 at the assault scene, who all intervened into the marpeet and saved the deceased. Accused Azad Khan was apprehended at the spot by the prosecution witnesses, whereas two others escaped from the spot. Sustaining injuries Hazi Saleem, injured, later on deceased, squatted on the ground and became unconsciousness. On a cot, he was brought to his house by his sons along with apprehended accused Azad Khan. Haleem, P.W.2, got scribed a F.I.R., Ext. Ka.2, from one Tahir Husain, travelled to police station Bithoor and lodged his FIR as Crime No.147 of 1978, under Section 324 I.P.C. at 5.30 p.m. same day.
Head Constable Ram Badan Singh, had registered the crime by preparing Chik F.I.R., Ext. Ka 13 and GD entry, Ext. Ka-14. After demise of injured Hazi Saleem, same constable had converted the crime under Section 302 I.P.C. by inking GD entry, Ext. Ka-15.
Investigation into the crime was conducted by Lal Bihari, S.I., P.W. 7, who had interrogated the injured and the scribe at the police station. He had also interrogated accused Azad Khan at the police station itself and thereafter had penned down informant's statement u/s 161 of the Code. At informant's pointing out I.O. had conducted spot inspection and had prepared site plan Ext. Ka-4. Thereafter two accused Afzal and Fazal were interrogated by him. On 29.10.1978, I.O. came to Lucknow where he interrogated S.I., who had conducted inquest on the cadaver of the deceased and thereafter had recorded statements of witnesses Ram Pratap and Dullu P.W.3. Thereafter, attachment proceedings u/s 82, 83 Cr.P.C. were conducted, vide Ext. Ka-6, Ka-7, Ka-8 and concluding investigation I.O. had charge sheeted the accused vide Ext. Ka-5.
Injured was medically examined by P.W.1 Dr. V.D. Agarwal on 1.10.1978 at PHC Kalyanpur at 7.00 p.m. who had noted following injuries in his medical examination report vide vide Ext. Ka-1.
"Examined Sri Haji Saleem Ahmad aged about 50 years S/o Karim Ahmad R/o Bithoor Naya, P.S. Bithoor District Kanpur on 1.10.78 at 7 P.M. brought and identified by C.No.691 Sri Surya Prakash of P.S. Bithoor, Kanpur.
M/I. : A black mole on left clavical away from its medial end.
Injuries:
1. Lacerated wound 1 1/4" x 1/4" x bone deep on scalp, 2 1/2" above middle point of left eyebrow and 4 1/2" above left ear with traumatic swelling 4" x 4" all around bleeding present, oblique direction.
2. Lacerated wound 1/4" x 1/8" x skin deep on scalp 2 1/4" above medial 1/4th point of left eyebrows, bleeding present.
3. Abrasion 3/4" x 1/2" on left cheek.
4. Fracture of medial 1/3rd of left clavical with swelling up 1" x 1". Blackening of both eye-lids of both eyes present with oedematous swelling pupils could not be seen due to marked swelling of eyelids of both eyes. Pt. is unconscious, involuntary movement of Rt. upper extremities present, pulse 96 p.m. and no vol. BP 100/60 M.M. of Hg. G.C. Poor."
All injuries caused by blunt object. Duration fresh, injury No.(4) is grievous and (3) simple and rest U.O. Patient is referred to L.L.P. Hospital Kanpur for immediate admission and further treatment and observation. Inj. No. (6) simple and (5) U.O."
According to the noting by the doctor patient was unconscious and underneath his eyes blackening and swelling were present, his pupils were dilated and general condition was poor. All the injuries sustained by the injured were caused by blunt object and were fresh in duration and injury no. 4 was grievous in nature. Injury no.3 was simple and rest of the two injuries were kept under observation. P.W.1 had referred the injured to L.L.P. Hospital, Kanpur Nagar for immediate admission and better management of his injuries.
After demise of the injured, autopsy of his cadaver was performed by Dr. V.N. Baghre P.W.6 on 3.10.1978 at 3.15 p.m. According to the doctor's estimation, deceased was 50 years of age and he had expired at 7.20 a.m. in Civil Hospital, Lucknow. Following ante-mortem injuries were noted by P.W.6 Dr. V.N. Baghre in the autopsy report Ext. Ka-2.
ANTI MORTEM INJURIES
"1. Hospital Bandage and dressing on the head and across to left shoulder and leucoplast strips on the front of neck.
2. Abraded contusion 15cm x 4cm on the top of left shoulder.
3. St. wound (3 stitch) 3.5cm long on the head on left side (P.T.) from left eye and 11cm from left ear on removing the stitches return of wound was lacerated and was bone deep.
4. Abrasion 2 cm x 2 cm on the left side face 15 from nose.
5. Abrasion 2 cm x 1cm. On the Rt. infra clavicular the region. On opening Echymoses present on whole of scalp with fracture depressed and communited of frontal bone extending to parietal bones and both and both temporal bones 22 cm. X 21 cm membranous are lacerated and congested, Brain lacerated under the front bone 3.5 cm. X 2 cm with subdural hemorrhage-14 cm. X 12 cm. Wt. 1250 gm. There is also liner fracture (SIC) ? Extending from one end to other end a cross the (SIC) ? Is continuant with fracture of skull, left clavicle is fracture and middle ribs 1st to 6th are fracture out latterly on left side. Pleura is lacerated. Plural cavity contains dark clotted and fluid blood present. Left lung is lacerated (P.T.) sternum fractured. Left lung is lacerated (P.T.) sternum fractured on the space between 1st, 2nd side."
According to the doctor's estimation death had occurred due to shock and hemorrhage due to injury and multiple fractures, as deposed by him and injuries no.1 to 3 collectively were sufficient in the ordinary course of nature to cause death.
Charge-sheeting of the accused resulted in their summoning and finding their guilt triable by Session's Court, their case was committed to the court of Session's, where it was registered as S.T. No.595 M of 1980. Session's Judge, Kanpur charged the accused under Sections 302/34 and 324/34 IPC on 21.5.1981, which charges were denied by all of them, who claimed to be tried and therefore, to succeed and establish their guilt, trial procedure was undertaken during course of which, prosecution examined four fact witnesses viz: Haleem informant P.W.2, Dullu P.W.3, Rasuli P.W.4, Jamal P.W.5. Two doctors, who had examined injured/deceased medically and had conducted post-mortem examination Dr. S.C. Katiyar and Dr. V.N. Baghre, were examined as P.W.1&P.W.6. I.O. of the crime Lal Bihari was tendered as P.W.7. Court had examined doctor S.K. Chaddha as C.W.1.
In their statements under Section 313 Cr.P.C., accused pleaded exercise of right of private defence. Azad Khan stated that Jamal was grazing she-goats in his field and when he remonstrated him, he returned to his house and thereafter came back along with his brother Sagir and others, who started belaboring him. Hazi Saleem sustained injuries in that scuffle and fell down on the ground. It was also stated that after sustaining injuries, injured had become unconscious and was unable to speak. To substantiate their defence, accused had examined Rama Shanker Tiwari, D.W.1, as a defence witness.
Vide impugned judgment and order, learned Session's Judge, Kanpur Nagar held that prosecution had failed to substantiate charge under Section 324/34 IPC against all the accused persons and therefore, acquitted them of the said charge. Learned trial Judge further concluded that so far as Fazal Khan was concerned, prosecution had remained unsuccessful in establishing his guilt beyond all reasonable doubt and therefore, had acquitted him of all the charges. It, however, concluded that so far as the two appellants are concerned, prosecution has anointed their guilt beyond any shadow of doubt u/s 304(II) I.P.C. and therefore, convicted them for the said crime and sentenced them to 7 years R.I., which conviction and sentence is under challenged in the instant appeal.
In the backdrop of above facts, I have heard Sri D.M. Singh, learned amicus curiae for the appellants and Sri Patanjali Mishra, learned AGA for the respondent state.
Castigating impugned judgment, learned amicus curiae submitted that learned trial Judge committed patent error of law in convicting the appellant while recording findings, which unerringly disproved prosecution case and three real sibling brothers were framed in a feigned and fabricated version alleged by the prosecution. Real fact were that, it was the prosecution side, who was the aggressor and appellants had exercised right of private defence of person and property both, while defending the person of Azad Khan and their property(agricultural crop), which was being grazed by the she-goat of informant side. It was further submitted that the motive for committing the crime lay with the prosecution side as they had created mischief of getting accused crops grazed by the she-goat. None of prosecution fact witnesses were wholly reliable as learned trial Judge himself disbelieved presence of one of the accused during the incident as was alleged by fact witnesses and hence no implicit reliance could have been placed on them to hold appellants guilty and consequently, conviction of the appellants is unsustainable. Eye witness account is also dicey and does not indicate that the incident occurred as alleged by the prosecution as allegation regarding use of sharp edged weapon (kulhari) axe, during the incident, is a disproved fact and learned trial judge acquitted all the accused of the charge u/s 324/34 I.P.C. and for this reason also, guilt of the appellants was not proved beyond all reasonable doubt. It was further submitted that the accused were required to prove their defence on preponderance of probabilities only and they were not required to establish their defence to the hilt beyond all reasonable doubt. Findings were recorded by the Session's Judge are contrary to the evidences on record and since, prosecution had failed to furnish any explanation of the injuries sustained by Azad Khan accused, none of the prosecution witnesses can be taken to be wholly reliable nor any credence can be attached to their testimonies. It was lastly contended that in case, the appellants' appeal do not succeed on merits, then looking to the period already undergone by and sufferings of the appellants, their sentence be reduced suitably and they deserves a compassionate consideration in matter of sentence.
Learned AGA argued to the contrary and contended that prosecution has anointed appellant's guilt unambiguously, clear of all doubts and, therefore, impugned judgment does not require any interference of this Court. Number of injuries sustained by the injured deceased itself is an indication, as to who was the aggressor and that is the safest criteria to determine, as to who had launched the attack submitted learned AGA. It was next contended that learned Session's Judge has not committed any error either in marshaling of facts, critical appreciation thereof and recording a finding of conviction and sentence. Appeal lacks merit and be dismissed concluded learned AGA.
I have pondered over rival contentions and have critically appreciated both oral and documentary evidences. Perusal of the record indicate that some of the facts in the present case are not in dispute and, therefore, so far as those aspects are concerned, they stands proved. First of all, there is no controversy regarding date, time and place of the incident. Genesis of the incident also is not in dispute, as both sides admit that the incident had occurred because of grazing of she-goat of the lahi field belonging to the accused appellants. It is also not in dispute that Jamal was present at that point of time and it was because of the slap of the Jamal that the incident had occurred. Thus, on all these aspects, prosecution was not required to establish it's case beyond all reasonable doubt, as these are admitted facts, which were not required to be proved. The only controversy, which remains to be considered is, as to whether the prosecution version of assault by the accused is a probable case or the defence of the appellants of assault being launched on accused Azad Khan and exercise of right of private defence is a more confidence inspiring and credible story. When evidences are analyzed in the aforesaid light, it transpires that the learned trial Judge himself was in doubt regarding genesis of the incident as was stated by the prosecution. It had recorded many findings, which goes to demolish the prosecution charge in it's entirety. First of all, learned trial Judge has disbelieved the statement made by the injured to the Investigating Officer in the hospital, which by virtue of death of the deceased was his dying declaration. It has recorded a finding "the I.O. Lal Bihari has referred to the same vide Ext. Ka-16 and if genuine, this could be made use of as the dying declaration of the deceased. There is inherent evidence, however, to show that this alleged statement is thoroughly unreliable as genuine. P.W. 2 Haleem accompanied his father to the police station. He points that Haji Saleem Ahmad was unconscious at the field when the witness reached at that place. He brought him to the house on the cot but then too he was not in position to speak. He admits also that his father did not utter a word at the hospital. Even at the police station, according to him, Haji Saleem Ahmad was only nodded uttering han hun." After noting these features of the evidences, learned trial Judge had concluded that "Haji Saleem Ahmad could not have been in fit condition of mind at the time to have given the said statement which must, therefore, be discarded from consideration. In such a view, the most important evidence tendered by the prosecution in the form of dying declaration of the injured has lost all its corroborative value and had indicated that all was not well during investigation and the prosecution side had even ventured to fabricate a story against the appellants."
Further, learned trial Judge held "as regards the accused Afzal Khan, the case of the prosecution stands on doubtful footing. No injury of any kind is alleged or shown to have been caused to him ..................... In the course of evidence, it was narrated that there was only one kulhari wielded by Afzal Khan and others had lathis, which is not consistent."
After recording such findings, so far as accused Fazal Khan was concerned, Ld.trial Judge has held "in my view this accused is entitled to the benefit of doubt."
State has not come up in appeal against acquittal of the said accused Fazal Khan nor has challenged the findings recorded by learned trial Judge.
Further learned trial Judge wrongly recorded that the accused appellants were being aggressors. It was recorded by him that "even assuming that the accused has acted in exercise of right of self defence, the same was exceeded in having caused the injuries of the kind upon Haji Saleem Ahmad. It arises in a sudden fight in the heat of passion." If the trial Judge was of the opinion that the incident had occurred all of sudden in the heat of passion, then to hold appellants guilty for the charge under section 304(II) I.P.C. was wholly unjustified. From the perusal of the injury as well as autopsy report of the injured, it transpires that injury nos. 2, 3, 4, 5 and 6 of the injured/deceased as was described by P.W.2 in the medical examination report were not fatal at all. These injuries were either of insignificant nature or were non vital part of the body, which could not have contributed to the death of the deceased at all. It was only injury no. 1, which was grievous in nature and was the cause of his death. Even in the autopsy report, from the injuries, which were noted by the doctor, injury nos. 1, 3 and 4 could not have caused the death of the deceased. It was only injury no. 2, which was the cause of his demise. In such a view, the deceased has sustained only a single fatal injury and his rest of the injuries were not sufficient in the ordinary course of nature to cause death. Opinion by P.W. 1 also indicate that but for a solitary injury, rest of the injuries sustained by the deceased were not sufficient in the ordinary course of the nature to cause his death or were so eminently dangerous that in all probability, they could have resulted in his death. In such a view, regarding a finding that the accused had exceeded right of private defence, the same is against relevant material on record and cannot be sustained.
Further learned trial Judge also committed mistake in judging accused as aggressors, whereas the fact indicated that it was the prosecution side which had gone to the accused and had picked up the quarrel. It was admitted that the incident had occurred in the mid field of appellant's Lahi field. Site of the incident is fixed by dripping and recovery of blood from that field which unambiguously indicated that deceased had trespassed into that field of the appellants. Against a trespasser appellants had a right to chase him away in legal exercise of right of private defence of property (crop). Appellants were at their field during the incident. In natural course of human conduct deceased must have been accompanied by his family members when he was proceeding to the appellant's Lahi field to remonstrate them for slapping his son. Thus what seems to be real happening is that it was prosecution side who had arrived at place of incident to pick up the fight. Ld. Trial Judge albeit cogitated over said aspect and observed that "it is true that Haji Saleem Ahmad and his sons might have felt annoyed in the natural course because of the beating or scolding done to Jamal over the petty issue, .........." but it fell in error in concluding otherwise that the appellants were the aggressors because the appellants "reacted shortly having felt aggrieved themselves." It also wrongly placed reliance on informant's testimonies after holding that he was not an eye witness of actual assault on his father. It also recorded a finding that the actual possession over the place of the incident lay with the appellants. It is further noted that presence of (P.W. 2) Jamal and accused Azad Khan at the place of the incident, is admitted and hence defence case spelt out by him could not have been brushed aside easily. He had sustained following injuries vide Ext. Kha-1 and was examined by Dr. S.K. Rastogi on 2.10.1978 at 2.30 P.M. at Kanpur.:-
"1. Abraded contusion 2cm x 3/4cm on the left front of parietal region 8cm above eye brow.
2. Contusion 6cm x 2cm on the back of left shoulder.
3. Contusion 3cm x 1cm on back of left arm middle.
4. Contusion 4cm x 1.5cm on back of left forearm lower 1/3rd.
5. Contusion 2cm x 1cm on antro lateral aspect on right thigh lower part."
Learned trial Judge has disbelieved his injuries for the reason that he had not got his medical examination done on the date of the incident itself. This could not have been a valid reason to disbelieve the defence story as his presence at the spot is not doubted, especially when Injuries sustained by the accused have been admitted by the fact witnesses during their depositions in Court. P.W. 2, during his cross examination was compelled to admit that Rasuli had carried a danda with him and he had assaulted the appellants from it. P.W. 3 also admitted the same fact during cross examination. He had further admitted that the chhari wielded by Rasuli had caused injury to Azad Khan and Fazal Khan accused although he expatiated his statement by saying that he had not seen the injuries to Afzal Khan but the fact remains is that the two appellants were also assaulted during the incident and they had sustained injuries. So is the statement of P.W. 4 when he had admitted that the only accused Azad Khan had sustained injuries but he had eschewed from divulging, as to who had caused the said injury. On a question put by the Court, he had admitted that he had wielded his danda two or three times, which had hit Azad Khan appellant. On an overall assessment of facts and circumstances of the case, I am of the view that the prosecution had not explained the injuries sustained by the accused in an incident which had occurred because of prosecution mischief and it were they, who had gone to the spot to pick up the quarrel after the she-goat had damaged appellant's Lahi crop. Why the prosecution suppress causing of injuries to the two appellants during the course of incident and in the examination-in-chief, creates a doubt the truthfulness of their story. Accused has to probabilize his story on preponderance of probability only unlike prosecution who had to prove it's case to the hilt clear of all doubts and consequently once appellants succeeded in showing that prosecution had suppressed injuries sustained in the same incident by the accused, it is hazardous to rely on their depositions which are not wholly true. Either these PWs were not present at the spot or they had narrated a fabricated version are the two inescapable conclusions. In this respect reliance can be had from apex court decision in Lakshmi Singh and others etc. vs. State of Bihar:AIR 1976 SC 2263, wherein it has been held by the apex court as under :-
"According to the Doctor injury No.1 was grievous in nature as it resulted in compound fracture of the fibula bone. The other two injuries were also serious injuries which had been inflicted by a sharp-cutting weapon. Having regard to the circumstances of the case there can be no doubt that Dasrath Singh must have received these injuries in the course of the assault, because it has not been suggested or contended that the injuries could be self-inflicted nor it is believable. In these circumstances, therefore, it was the bounded duty of the prosecution to give a reasonable explanation for the injuries sustained by the accused Dasrath Singh in the course of the occurrence. Not only the prosecution has given no explanation, but some of the witnesses have made a clear statement that they did not see any injuries on the person of the accused. Indeed it the eye-witnesses could have given such graphic details regarding the assault on the two deceased and Dasain Singh and yet they deliberately suppressed the injuries on the person of the accused, this is a most importance circumstance to discredit the entire prosecution case. It is well settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence. This matter was argued before the High Court and we are constrained to observe that the learned Judges without appreciating the ratio of this Court in Mohar Rai v. State of Bihar, (1968) 3 SCR 525 = (AIR 1968 SC 1281) tried to brush it aside on most untenable grounds. The question whether the Investigating Officer was informed about the injuries is wholly irrelevant to the issue, particularly when the very Doctor who examined one of the deceased and the prosecution witnesses is the person who examined the appellant Dasarath Singh also. In the case referred to above, this Court clearly observed as follows :
"The trial Court as well as the High Court wholly ignored the significance of the injuries found on the appellants. Mohar Rai had sustained as many as 13 injuries and Bharath Rai 14. We get it from the evidence of P.W.15 that he noticed injuries on the person of Mohar Rai when he was produced before him immediately after the occurrence. Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly probabilised. Under these circumstances the prosecution had a duty to explain those injuries ......... In our judgement the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilities the plea taken by the appellants."
This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow : (1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the present case has not correctly applied the principles laid down by this Court in the decision referred to above. In some of the recent cases, the same principle was laid down. In Puran Singh v. The State of Punjab, Criminal Appeal No. 266 of 1971 decided on April 25, 1975 = (reported in AIR 1975 SC 1674) which was also a murder case, this Court, while following an earlier case, observed as follows :
"In State of Gujarat v. Bai Fatima (Criminal Appeal No. 67 of 1971 decided on March 19, 1975) = (reported in AIR 1975 SC 1478) one of us (Untwalia, J.,) speaking for the Court, observed as follows :
"In a situation like this when the prosecution fails to explain the injuries on the person of an accused depending on the facts of each case, any of the three results may follow :
(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.
(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.
(3) It does not affect the prosecution case at all.
The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgement. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case."
It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:
(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version.
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the Court to rely on the evidence of PWs. 1 to 4 and 6 more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima, Criminal Appeal No. 67 of 1971 decided on March 19, 1975 : (Reported in AIR 1975 SC 1478) there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises."
Aforesaid view of the apex court has been consistently followed up till now. In Bihari Rai versus State of Bihar:AIR 2009 SC 18 it has been observed by the apex court as under:-
"13. The number of injuries is hot always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the Injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private 'defence. The defence has to further establish that the injuries so caused on the accused probabilises the version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. [See : Lakshmi Singh v. State of Bihar (AIR 1976 SC 2263). A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 deals with the subject-matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property. Section 99 lays down the limits of the right of private defence. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101, IPC define the limit and extent of right of private defence.
14. Sections 102 and 105, IPC deal with commencement and continuance of the right of private defence of body and property respectively. 'The right commences', as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat to commit the offence, although the offence may not have been committed but not until that there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues. In Jai Dev v. State of Punjab (AIR 1963 SC 612), it was observed that as soon as the cause for reasonable apprehension disappears and the threat has either been destroyed or has been put to route, there can be no occasion to exercise the right of private defence."
Adopting above view neither prosecution witnesses of fact are wholly reliable nor prosecution has offered any explanation of accused injuries nor it has proved clear of all doubts that accused were the aggressors. Conversely it has been probabilised that it was prosecution side which had approached the accused at their field and had picked up the fight and it's witnesses had suppressed the injuries sustained by the appellants and therefore in my opinion appellants are entitle to acquittal.
Residue of above discussion is that the appeal succeeds and is allowed. Conviction of both the surviving appellants for the charge under section 304(II) I.P.C., recorded by Session's Judge, Kanpur, through impugned judgment and order, are hereby set aside and they are acquitted of that offence and are set at liberty. Both the appellants are on bail, they need not surrender, their personal and surety bonds are discharged.
Let a copy of the judgment be certified to the trial court for it's intimation.
Dt.30.5.2012
Rk/Arvind/-
Hon'ble Vinod Prasad,J.
Sri D.M. Singh, learned Amicus Curiae has rendered valuable assistance in deciding the appeal, which was pending since last three decades and, therefore, he is directed to be paid Rs. 8,000/- as his fees by the office of this Court.
Dt.30.5.2012
Rk/Arvind/-
