Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Preponderance Of Probability Is Enough To Confer Right Of Private Defence/Appeal Allowed.
JUDGEMENT TITLE : Pokhpal Vs. State On 09/20/2011 By Allahabad High Court
CASE NO : CRIMINAL APPEAL NO. 1871 OF 1981 JUDGMENT/ORDER DATED - 20/9/2011 AT ALLAHABAD.
CORAM : Hon'ble Vinod Prasad,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Court No.53

Criminal Appeal No.1871 Of 1981

Pokhpal & Others ..........................................Appellants.
Versus
State Of U.P. ...........................................Respondents.

Hon'ble Vinod Prasad, J.

Seven Appellants Including Three Sibling Brothers Namely, Pokhpal S/o Rammu, Ramcharan, Laljit And Sant Ram, All S/o Itwari, Rajendra S/o Sukhbas, Khyali S/o Roshan, And Shri Ram S/o Mangali Have Knocked The Door Of This Court Questioning And Challenging Their Convictions For Offences Under Sections 147, 452/149, 304/149, 323/149 I.P.C. Recorded By Xth Additional Sessions Judge, Etah In S.T. No.689 Of 1978, State Vs. Pokhpal And Others Relating To PS Jaithra, District Etah. For The First Charge They Were Sentenced To Three Months R.I., For The Second Count One Year R.I., For The Third Count Five Years R.I. And For The Last Count Two Months R.I. All The Sentences Were Directed To Run Concurrently By The Trial Judge Vide Impugned Judgement And Order Dated 20.8.1981.
Prosecution Version, In Nutshell, As Is Perceptible From Written F.I.R. Ext. Ka-1 And Depositions Of Fact Witnesses, Were That Ram Baksh Resident Of Village Harsinghpur, Police Station Jaithra, District Etah Had Two Sons Parsadi Lal (deceased) And Mewa Ram. Parsadi Lal Had Two Issues P.W.1 Gyan Singh (informant) And P.W.3 Ram Swaroop. Ganga Dayal Another Witness Of The Incident, (not Examined During Trial) Is The Son Of Mewa Ram.
At 4.00 P.m. On 1.7.1977, Because Of Some Scuffle Between Children, There Was A Triadic Verbal Altercation Between The Wives Of Accused Appellant Sant Ram And PW1 Gyan Singh, When Wife Of Sant Ram Had Gone To Later's House To Register Her Protest Regarding The Said Scuffle And There She Was Vetuparised. This Temerity Was Informed By Sant Ram's Wife To Her Family Members On Which The Main Incident Occurred At 8.00 P.m, The Same Day, When Seven Of The Appellants Named Above, All But Accused Khayali, Armed With Lahti And Khyali Armed With Danda, Hurling Abuses Raided The House Of The Informant P.W.1 And After Trespassing Inside Slapped And Boxed Informant. Shrieks Of Informant Attracted His Father On Which Raiders Assaulted Both Of Them In Their Courtyard. When P.W.2 Smt. Sundari, Mother Of Informant Encircled Her Son In An Attempt To Save Him She Was Also Bet And Caused Injuries. Hue And Cry Raised By House Inmates Attracted Co-villagers Ganga Dayal And Ram Swaroop, Who Intervened And Saved Lives Of The Injured And Had Witnessed The Incident. Accused Persons Thereafter Retreated To Their House. PW 1 Thereafter Scribed FIR, Ext. Ka 1, Arranged A Bullock Cart, Travelled A Distance Of Seven Miles With His Parents And Then Lodged His F.I.R. At The Police Station Jaithra, District Etah, Same Night At 2.00 A.m.
Head Constable Panna Lal P.W.7 Registered The FIR As Crime No.96 Of 1977, Under Sections 147, 452, 323 IPC, Prepared Chik F.I.R. Ext. Ka-15 And Corresponding GD Entry Ext. Ka-16. Injured Persons Thereafter Were Dispatched To The Hospital For Medical Examination And Management Of Their Injuries.
P.W.8 Station Officer, P.S. Jaithara, S.P. Singh, Commenced The Investigation Into The Crime On 2.6.2007, Recorded Investigatory 161 Cr.P.C. Statements Of The Informant And His Father Prasadi Lal. After Three Days, On 5.6.1977, He Again Started Investigation, Came To The Place Of The Incident And Searched For The Accused But Could Not Find Them. On 7.7.1977 I.O. Interrogated And Recorded Investigatory Statements Of Injured P.W. 2 Smt. Sundari And Witnesses Ganga Dayal And P.W.3 Ram Swaroop. Subsequent Thereto He Conducted Spot Inspection And Sketched Site Plan Map Ext. Ka-18.
Following Day Of The Incident 2.6.77, In The Morning At 7.15 A.m. An FIR Against The Informant P.W.1 And His Father (deceased) And Others Was Also Lodged At The Same Police Station By Mother Of The Accused Sant Ram As Crime No. 96 A/77 U/S 147, 148, 324 IPC, Mentioning Date And Time Of The Incident To Be 1.6.77 At About 7 P.m., Vide Ext. Kha-1 And Kha-2, And In That Connection P.W.1 And Deceased Were Arrested. Condition Of Prasadi Lal, While Under Incarceration In Cross Case Started Deteriorating And Therefore, He Was Shifted And Admitted In The Hospital, Where He Lost Battle For His Life On 7th June 1977. PW6 S.I. Sardar Singh Got Information Regarding Demise Of Deceased From District Jail And Therefore Accompanied With Constables Omvir And Captan Singh He Proceeded For The District Hospital, Where He Conducted Inquest On The Cadaver Of The Deceased And Prepared Inquest Report And Other Relevant Papers Vide Ext. Ka 9 To Ext. Ka 14 And Then Dispatched The Corpse For Autopsy Examination Through Accompanying Constables. I.O. P.W.8 S.P. Singh, After Receiving Information About The Demise Of Parsadi Lal, Converted The Crime From 323 To 304 IPC. Concluding Investigation I.O. Charge- Sheeted The Accused Persons Vide Ext. Ka-19.
Medical Examinations Of Injured Witnesses Gyan Singh, PW1, Parsadi Lal (the Then Injured) And Smt. Sundari, PW2 Were Got Done On The Following Day Of The Incident 2.6.1977 At 10.15, 10.30 And 10.45 A.m. Respectively By P.W.5 Dr. I.P.S. Bismik At P.H.C. Jaithra. Injury Report Of Informant P.W.1 Gyan Singh, Ext. Ka-5, Is Reproduced Below:-
"1. Lacerated Wound 3.5 Cm X .5 Cm X .5 Cm On The Right Side Of The Scalp 9 Cm Above Medial End Of Right Eye Brow, Blood Clot Present Obliquely Placed.
2. Lacerated Wound 2 Cm X .5 Cm X .5 Cm On The Right Side Of The Scalp Medial To Injury No.1 And Joining Injury No.1, Blood Clot Present, Obliquely Placed.
3. Bruise 4 Cm X 1 Cm On The Right Shoulder, Bluish Red In Colour.
Duration:- About 1/2 Day.
All The Injury Are Simple, Caused By Blunt Object."
Injury Report Of Deceased (then Injured) Parsadi Lal, Vide Ext. Ka-4, Is Reproduced Here Under:-
"1. Lacerated Wound .8 X .2 Cm X .1 Cm On The Back Of The Scalp Left Side Over Occipital Bone Blood Clot Present.
2. Abrasion 3 Cm X 1.5 Cm On The Lateral Aspect Of The Left Fore-arm In Upper 1/3rd Scab Present.
3. Lacerated Wound 1 Cm X 5 Cm X .1 Cm On The Dorsal Aspect Of Priximal Interphalangeal Joint Of Right Little Finger.
Duration:- About 1/2 Day.
All The Injuries Are Simple, Caused By Blunt Object."
Injury Report Of P.W.2 Smt. Sundari, Ext. Ka-3, Is Reproduced As Under:-
"1. Bruise 5 Cm X 1 Cm On The Posterior Lateral Aspect Of Left Upper Arm In Middle 1/3rd Bluish Red In Colour.
2. Bruise 5 Cm X 1.5 Cm On The Front Aspect Of Left Thigh In Lower 1/3rd, Bluish Red In Colour.
Duration:- About 1/2 Day.
All The Injuries Are Simple, Caused By Blunt Object."
P.W.4 Dr. S. Prasad Had Conducted Autopsy Examination On The Corpse Of The Deceased On 7.6.1977 At 5.30 P.m., Which Was Brought To Him By Constable C.P. 546 Kaptan Singh And C.P. 188 Onkar Singh, Vide Ext. Ka-2. In The Estimation Of The Doctor Deceased Was 65 Years Of Age, ¾th Of The Day Had Lapsed Since His Demise. He Was Having A Fragile Physic, Rigor Mortis Was Passing Off From His Upper Limbs And Was Present In The Lower Limbs And Little Finger Of Right Hand Was Bandaged. Eyes Of The Deceased Were Closed. Autopsy Doctor Noted Following Anti-mortem Injuries On The Body Of The Deceased:-
"1. Healing Wound 4cm X 0.5cm X Scalp Over Back Clots Upper Head.
2. Contused Diffuse Swelling 10cm X 6cm On The Back Surface Rt. Hand.
3. Lacerated Inside Surface 2cm X 0.5cm Muscle On The Back Surface Little Finger Rt. Hand.
4. Abrasion 2cm X 4cm On The Back Of Rt. Side Scapular Region.
5. Swelling All Over The Rt. Upper Limbs No Echymosis On The Cutting Of The Upper Limbs Due To Lymphosis."
In Doctor's Opinion Cause Of Deceased Death Was Meningeal Haemorrhage Of The Brain.
On The Basis Of Charge Sheet, Ext. Ka-19, Accused Persons Were Summoned To Stand Trial By 3rd Additional Munsif Magistrate, Etah Vide His Order Dated 21.1.1978, After Registering Criminal Case No. 854 Of 1978 (State Vs. Pokhpal And Others). Finding Accused Case Triable By Court Of Sessions, Magistrate Committed It To Sessions Court For Trial On 28.11.1978 And On That Basis S.T. No. 689 Of 1978, State Versus Pokhpal And Others Was Registered Before Sessions Judge, Etah On 28.11.1978.
Xth Additional Sessions Judge, Etah Charged The Appellants With Offences U/Ss 147, 452/149, 304/149 And 323/149 On 12.9.1980. Aforesaid Charges Were Then Read Out To The Accused Persons, Who Denied The Same And Claimed To Be Tried And Hence Sessions Trial Proceeded To Bring Home The Guilt Of The Accused Appellants Commenced.
To Establish Appellant's Guilt Beyond Any Shadow Of Doubt, Prosecution, During Course Of Session's Trial Tendered In All Eight Witnesses Out Of Whom P.W.-1 Informant Gyan Singh, P.W. 2 Smt. Sundari, (injured Eye-witness) And P.W. 3 Ram Swaroop, (brother Of The Informant), Were Fact Witnesses. Other Formal Witnesses Included P.W.4 Dr. S. Prasad, (who Had Examined The Injured), PW5 Dr. I.P.S. Bismik P.W.6, S.I. Sardar Singh, (who Had Conducted Inquest On The Dead Body Of The Deceased On 7.6.1977), P.W.7 H/C Panna Lal, (who Had Prepared The Chik FIR And The GD Entry) And PW8 I.O. S.P. Singh.
Accused Persons In Their Statements Under Section 313 Cr.P.C. Denied Incriminating Circumstances Appearing In Prosecution Evidences Put To Them And Took The Defence That In Fact It Was The Prosecution Side Who Had Raided The House Of The Accused Sant Ram And Had Started Assaulting Him Who, In Exercise Of His Right Of Private Defence Wielded Lathi And Caused Injury On The Prosecution Side. Thus, Defence Of The Appellant's Is That Of Exercise Of Right Of Private Defence By Accused Sant Ram And False Implication Of Other Accused. To Substantiate His Stand Of Right Of Private Defence On Preponderance Of Probability, Accused Sant Ram Examined D.W. 1 Dr. I.P.S. Bismik And Had Got Proved His Injury Report Ext. Kha-3 And Relied Upon Documentary Evidences Of FIR Lodged By His Mother Vide Ext. Kha-1 And Kha-2.
Trial Judge, After Critically Appreciating Prosecution And Defence Evidences Came To The Conclusion That The Accused Had No Right Of Private Defence, Their Version Was Found To Be False And It Was The Accused, Who Were The Aggressors And, Therefore, Finding The Prosecution Case Established To The Hilt Beyond All Reasonable Doubt, Convicted The Appellants For Offences Under Sections 147, 452/149, 304/149, 323/149 I.P.C. And Implanted Sentences, Which Has Been Recorded In The Opening Paragraph Of This Judgement And Hence Are Being Eschewed From Being Repeated. Hence This Appeal By The Appellants.
Pendent Elite This Appeal, Six Of The Appellants Pokhpal, Ramcharan, Laljit, Sant Ram, Rajendra And Khyali Left For Their Heavenly Abode And Consequently, Their Appeals Were Abated On 18.11.2005. This Leaves This Court Only With The Appeal Of One Of The Appellant Sri Ram S/o Mangali To Be Decided.
The Appeal Is Of The Year 1981 And Was Printed In The Cause List For Final Argument. When It Was Called Out, Counsel For The Appellants Did Not Appear To Argue The Appeal And Hence, Applying The Law Laid Down By The Apex Court In Bani Singh And Others Vs. State Of U.P.: AIR 1996 Supreme Court 2439;Magat Singh Versus State Of Punjab: (2005)XI SCC 185; Babu Lumbaji Kamble Versus State Of Maharastra:(2005)XI SCC 413 And Rishi Nandan Pandit Versus State Of Bihar: AIR 1999 SC3850, Sri Sandeep Kumar Singh Advocate Was Appointed As Amicus Curiae To Argue The Appeal On Behalf Of Sole Surviving Appellant Sri Ram. Sri Patanjali Mishra And Sri Raghuraj Mishra, Learned AGAs Have Been Heard On Behalf Of Respondent State.
Castigating And Criticizing Impugned Judgement Of Conviction And Sentence, Learned Amicus Curiae Raised Following Contentions. Firstly, He Submitted That Conviction Of The Appellant Under Section 304 I.P.C. Is Not Sustainable At All As Taking Prosecution Evidence As It Is Without Any Addition Or Subtraction, What Is Perceptibly Clear Is That The Charge And Guilt Of The Appellants Will Not Travel Beyond The Scope Of Section 325 I.P.C. The Contention Is Based On The Analogy That Seven Persons Are Alleged To Have Assaulted Three Prosecution Persons But They Had Sustained Only Eight Injuries. Two Of The Injured P.W. 1 And P.W. 2 Did Not Sustain Any Grievous Injury. Only One Fatal Injury Was Caused To The Deceased Parsadi Lal And It Is Not Known As To Who Was The Author Of That Injury And, Therefore, The Offence Of The Accused Will Not Travel Beyond The Purview Of Section 325 I.P.C. Next It Was Contended That All The Fact Witnesses Were Interested, Related, Inimical And Partisan And Therefore No Implicit Reliance Can Be Placed On Their Testimonies Specially Keeping In View The Fact That Although Place Of The Incident, According To The Prosecution Version, Is In The Midst Of The Hamlet Of Village Harsingpur But No Independent Witness From Surrounding Neighbours Came Forward To Lend Credence To The Prosecution Story. It Was Next Submitted That The Appellant Claimed Exercise Of Right Of Private Defence And To Substantiate That Plea Copy Of The FIR And The Injury Report Of The Appellant Sant Ram Was Tendered As Ext. Kha-1 To Kha-3 But The Trial Judge Wrongly And Illegally, On All Wrong Premises, Rejected The Defence Version By Opining That The Accused Has Failed To Prove It's Case Beyond All Reasonable Doubt. This, According To Learned Amicus Curiae, Is A Totally Wrong Approach Adopted By The Trial Judge, Who Had Failed To Apply Correct Legal Principle As Laid Down By The Apex Court As Well As By This Court In Cases Relating To Right Of Private Defence. Next It Was Submitted That Although The Deceased Was Arrested And Was Incarcerated From 1.6.1977 Till 5.6.1977, Before His Hospitalization Yet, No Attempt Was Made To Get His Dying Declaration Recorded. The Argument Is That Deceased Was Not Prepared To Support The Prosecution Version And Hence The Lethargy Was Adopted By The I.O. Another Ancillary Argument Is That The Investigation Conducted By The I.O. Suffers From Many Infirmities And Vices And Does Not Inspire Any Confidence. Learned Counsel Further Submitted That Section 149 I.P.C. Does Not Apply On The Facts Of The Present Case As There Was No Unlawful Assembly Harbouring Common Intention To Commit Culpable Homicide Not Amounting To Murder And Therefore Conviction Of The Appellant With The Aid Of Section 149 I.P.C. For Charges Under Sections 304, 452, 323 I.P.C. Is Unsustainable, And Since There Did Not Exit Any Unlawful Assembly Conviction U/s 147 I.P.C. Also Is Unmerited. It Was Next Submitted That The Incident Had Occurred In The Year 1977 And Since Then 33 Years Have Gone By Therefore, Appellant Sri Ram Should Not Be Sent To The Jail After Lapse Of So Many Decades Specially When He Had No Criminal Proclivity And Had No Criminal History, In The Event He Is Not Acquitted On The Merits Of The Appeal.
Learned AGA, Per Contra, Supported Judgement Of Conviction And Sentence.
I Have Considered The Arguments Raised By Both The Sides. Perusal Of The Record Indicates That It Is A Case Where Happening Of The Incident Is More Or Less Admitted And Both The Sides Have Their Own Counter Versions Regarding Happening Of The Incident. According To The Prosecution Case Incident Occurred On 1.6.1977 At 8.00 P.m. In Court Yard Of The House Of The Informant Whereas Defence Case Is That It Occurred Same Day At 7.00 P.m. Near The House Of Deceased Appellant Sant Ram. Both Sides Lodged Their F.I.Rs. On 2.6.1977. Prosecution F.I.R. Was Registered At 2.00 A.m., Same Night And Defence FIR Was Registered Following Morning At 7.15 A.m. Lodged By Ram Kali, Mother Of The Appellant Sant Ram, Since Deceased. During Trial Accused Pleaded The Defence That It Was Prosecution Side Which Was The Aggressor And It Was They Who Had Started The Incident By Assaulting Sant Ram, Who, In Exercise Of His Right Of Private Defence, Retaliated By Making Defence Assault. Till The Investigation Stage And Filing Of Charge Sheet Prosecution Did Not Explain Injuries Sustained By Sant Ram But During Trial To Overcome The Difficulty Of Explaining Injuries From The Side Of The Accused That It Embellished It's Case By Deposing That Wife Of Informant Had Assaulted Appellant Sant Ram With Terracotta Roof Tiles (Khapara) And Utensils During The Incident And That Is How The Said Appellant Had Sustained Injuries. Thus, Now There Remains No Dispute That Besides Three Prosecution Injured, Appellant Sant Ram, Since Deceased, Also Sustained Injury In The Same Incident. Now Before Proceeding Further And Adverting And Summating The Facts Of The Present Appeal Searching Light Glimpse On The Laws Of Right Of Private Defence Is Sketched Below.
In Prabhu Vs. Emperor: AIR 1941 Allahabad 402, Seven Judges Bench Of This Court Laid Down The Law That In Matters Of Private Defence Plea By The Accused, Whereas It Is For The Prosecution To Prove It's Case Beyond All Shadow Of Reasonable Doubt To The Hilt But, It Is Sufficient For The Accused To Prove His Defence Only On Preponderance Of Probability To Succeed. He Is Not Required To Establish His Defence Plea Beyond All Shadow Of Reasonable Doubt. Thus The Degree Of Proof Required From An Accused Is Of Much Lesser Degree Than What Is Required From The Prosecution. Accused Has Only To Create A Reasonable Doubt In The Prosecution Story To Succeed. This Does Not However Mean That Every Prognosis Or Every Weird Hypothesis Put Forth By The Accused Shall Absolve Him Of Discharging His Burden Of Proof Of Exercise Of Right Of Private Defence. The Doubt Which The Law Requires From An Accused To Establish Should Not Be Undue Vacillating, Weak, Indolent, Drowsy Or Confused. It Should Be Doubt Of A Prudent Man Acceptable To Commonest Common Sense. Thus If An Accused Succeeds In Bringing Forth A Prognosis, Which On The Facts And Circumstances Involved And Peculiar To Each Case, Appears To Be Reasonable, Judging From An Ordinary Prudent Man's View, Then Accused Has Successfully Discharged His Burden. He Is Not Required To Establish His Defence Beyond All Shadow Of Reasonable Doubt To Successfully Claim Benefit Of Plea Of Right Of Private Defence. Full Bench In Prabhoo's Case(Supra) Relied Upon Two Decisions Emperor Versus Dhampala : AIR 1937 Rangoon 63 And Woolmington Versus Director Of Public Prosecution : 1935 AC 462, For Such An Opinion, The Excerpts Of Which Have Been Referred To By The Full Bench, Which Held As Under:-
'"The Question Referred For Decision To This Full Bench Is As Follows :
Whether, Having Regard To S.96, Penal Code, And S.105 Evidence Act, In A Case In Which Any General Exception In The Penal Code Is Pleaded By An Accused Person And Evidence Is Adduced To Support Such Plea, But Such Evidence Fails To Satisfy The Court Affirmatively Of The Existence Of Circumstances Bringing The Case Within The General Exception Pleaded, The Accused Person Is Entitled To Be Acquitted, If, Upon A Consideration Of The Evidence As A Whole (including The Evidence Given In Support Of The Plea Of The Said General Exception), A Reasonable Doubt Is Created In The Mind Of The Court Whether The Accused Person Is Or Is Not Entitled To The Benefit Of The Said Exception?
Section 96, Penal Code, Provides : "Nothing Is An Offence Which Is Done In The Exercise Of The Right Of Private Defence, "and S.105, Evidence Act Enacts That :
When A Person Is Accused Of Any Offence, The Burden Of Proving The Existence Of Circumstances Bringing The Case Within Any Of The General Exceptions In The Penal Code, Or Within Any Special Exception Or Proviso Contained In Any Other Part Of The Same Code, Or In Any Law Defining The Offence Is Upon Him, And The Court Shall Presume The Absence Of Such Circumstances.
The Question Referred Formed The Subject Of Consideration By A Full Bench Of The Rangoon High Court In 14 Rang 666, And It Was Held That Even If The Evidence Adduced By The Accused Fails To Prove The Existence Of Circumstances Bringing The Case Within The Exception Pleaded, The Accused Is Entitled To Be Acquitted If, Upon A Consideration Of The Evidence Both For The Prosecution And The Defence, The Court Is Left In A State Of Reasonable Doubt As To Whether The Accused Person Is Or Is Not Entitled To The Benefit Of The Exception Pleaded. The Full Bench Followed The Recent English Case In The House Of Lords In (1935) A C 462, And Held That Decision Was In No Way In Consistent With The Law In British India And The Principles Laid Down In That Decision Formed A Valuable Guide To The Correct Interpretation Of S.105, Indian Evidence Act. It Was Held In (1935) A C 462 That :
When Evidence Of Death And Malice Has Been Given, (this Is A Question For The Jury), The Prisoner Is Entitled To Show By Evidence Or By Examination Of The Circumstances Adduced By The Crown That The Act On His Part Which Caused Death Was Either Unintentional Or Provoked. If The Jury Are Either Satisfied With His Explanation Or, Upon A Review Of All The Evidence, Are Left In Reasonable Doubt Whether, Even If His Explanation Be Not Accepted, The Act Was Unintentional Or Provoked, The Prisoner Is Entitled To Be Acquitted.
Viscount Sankey L.C. In The Course Of His Judgement In (1935) A C 462 Is Reported To Have Observed As Follows :
Just As There Is Evidence On Behalf Of The Prosecution So There May Be Evidence On Behalf Of The Prisoner Which May Cause A Doubt As To His Guilt. In Either Case, He Is Entitled To The Benefit Of The Doubt. But While The Prosecution Must Prove The Guilt Of The Prisoner, There Is No Such Burden Laid On The Prisoner To Prove His Innocence And It Is Sufficient For Him To Raise A Doubt As To His Guilt; He Is Not Bound To Satisfy The Jury Of His Innocence ....... Throughout The Web Of The English Criminal Law One Golden Thread Is Always To Be Seen, That It Is The Duty Of The Prosecution To Prove The Prisoner's Guilt Subject To What I Have Already Said As To The Defence Of Insanity And Subject Also To Any Statutory Exception. If, At The End Of And On The Whole Of The Case, There Is Reasonable Doubt Created By The Evidence Given By Either The Prosecution Or The Prisoner, As To Whether The Prisoner Killed The Deceased With A Malicious Intention, The Prosecution Has Not Made Out The Case And The Prisoner Is Entitled To An Acquittal. No Matter What The Charge Or Where The Trial, The Principle That The Prosecution Must Prove The Guilt Of The Prisoner Is Part Of The Common Law Of England And No Attempt To Whittle It Down Can Be Entertained.
It Would Thus Appear That There Is Formidable Weight Of Authority In Support Of The View That In Cases Falling Within The Purview Of S.105, Evidence Act, The Evidence Produced By The Accused Person, Even Though Falling Short Of Proving Affirmatively The Existence Of Circumstances Bringing The Case Within The Exception Pleaded By Him, Can Be Utilized As Part Of The Entire Evidence In The Case For The Purpose Of Showing That A Reasonable Doubt Exists As To His Guilt. In View Of The Judicial Pronouncements Noted Above I Should, I Feel, In The Absence Of Cogent And Convincing Reasons, Hesitate To Take The Contrary View."
The Dictum Of Prabhu's Case(supra) Was Reconsidered By A Larger Bench Of This Court In Rishikesh Singh Vs. State Of U.P.: AIR 1970, Allahabad 51 Where Larger Bench Slightly Modified Earlier Opinion Without Disturbing The Golden Thread Which Runs Through All Criminal Trials In The Following Terms:-
"93. In This View Of The Matter The Dictum Laid Down In 1941 All LJ 619 AIR 1941 All 402 (FB) (Supra) Is Partly Erroneous And Requires Modification, Though The Decision, Read As A Whole Is In Conformity With The Law. The Dictum Can Be Modified As Below:-
In A Case In Which Any General Exception In The India Penal Code, Or Any Special Exception Or Proviso Contained In Another Part Of The Same Code,or In Any Law Defining The Offence, Is Pleaded Or Raised By An Accused Person And The Evidence Led In Support Of Such Plea, Judged By The Test Of The Preponderance Of Probability As In A Civil Proceeding Fails To Displace The Presumption Arising From Section 105 Of The Evidence Act, In Other Words, To Disprove The Absence Of Circumstances Bringing The Case Within The Said Exception; But Upon A Consideration Of The Evidence As A Whole, Including The Evidence Given In Support Of The Plea Based On The Said Exception Or Proviso, A Reasonable Doubt Is Created In The Mind Of The Court, As Regards One Or More Of The Ingredients Of The Offence The Accused Person, Shall Be Entitled To The Benefit Of The Reasonable Doubt As To His Guilt And Hence To Acquittal Of The Said Offence
. .......................
"162. The Answer Of The Majority Of Learned Judges Who Decided AIR 1941 All 402 (FB) Is Still Good Law. It Means That In A Case In Which, In Answer To A Prima Facie Prosecution Case, Any General Exception In The Indian Penal Code Is Pleaded By An Accused And Evidence Is Adduced To Support Such A Plea, But Such Evidence Fails To Satisfy The Court Affirmatively That The Accused Has Fully Established His Plea, He Will Still Be Entitled To An Acquittal, Provided That, After Weighing The Evidence As A Whole Prudently (including The Evidence Given In Support Of The Plea Of The Said General Exception), The Court Reaches The Conclusion That, As A Consequence Of The Doubt Arising About The Existence Of The Exception, The Prosecution Has Failed To Discharge Its Onus Of Proving The Guilt Of The Accused Beyond Reasonable Doubt.
..................
"176. In The Result We Answer The Question Referred To The Full Bench As Under :
The Dictum Of The Majority Of Learned Judges Of This Court In 1941 All LJ 619 AIR 1941 All 402 (FB) Is Still Good Law. But, It May Be Elucidated That In A Case In Which Any General Exception In The Indian Penal Code Is Pleaded By An Accused And Evidence Is Adduced To Support Such A Plea, But Such Evidence Fails To Satisfy The Court Affirmatively That The Accused Has Fully Established His Plea Of The Claimed Exception, He Will Still Be Entitled To An Acquittal, If, Upon A Consideration Of The Evidence As A Whole (including The Evidence Given In Support Of The Plea Of The Said General Exception), A Reasonable Consequential Doubt Is Created In The Mind Of The Court As To Whether The Accused Is Really Guilty Of The Offence With Which He Is Charged."
Later On In Vijai Singh And Others Vs. State Of U.P.: 1990 SCC (Criminal) 378 Apex Court Affirmed And Approved Above Views Of This Court And Has Been Pleased To Observe As Under:-
"A Careful Reading Of These Two Decisions Would Reveal That The Statement Of Law Therein Neither Expressly Nor Impliedly Overrules Or Is An Conflict With The Majority View In Parbhoo Case. However, In RishiKesh Singh V. State, The Question That Came Up For Consideration Before A Larger Bench Consisting Of Nine Judges Was Whether The Dictum In Parbhoo Case Is Still A Good Law On The Ground That Some Of The Decisions Of The Supreme Court Have Cast A Cloud Of Doubt. A Majority Of Seven Judges Approved The Principle Laid Down In Parbhoo Case. The Larger Bench Also Referred To Various Subsequent Decisions Of The Supreme Court Including The Nanavati Case, Bhikari V. State Of Uttar Pradesh And Dahyabhai Case, Beg, J. As He Then Was, In A Separate But Concurring Judgement After Referring To The Nanavati Case, Bhikari Case, Dahyabhai Case And Mohar Rai And Bharath Rai Case, Held That There Is No Conflict Between What Was Held By The Supreme Court And The Majority View Taken In Parbhoo Case. After Analysing The View Expressed By The Supreme Court In The Several Above Mentioned Decisions, Beg, J. Observed : (AIR Pp. 97-98, Paras 160-61)
"After A Close Scrutiny Of Every Part Of Each Of The Seven Opinions In Parbhoo Case, I Have Come To The Conclusion That The Majority Of Their Lordships Did Not Lay Down Anything Beyond Three Important Propositions Which, If Not Either Directly Or Indirectly Supported By Decisions Of Their Lordships Of The Supreme Court, Have Not Been Affected In The Slightest Degree By These Decisions. These Propositions Are: Firstly, That No Evidence Appearing In The Case To Support The Exception Pleaded By The Accused Can Be Excluded Altogether From Consideration On The Ground That The Accused Has Not Proved His Plea Fully; Secondly, That The Obligatory Presumption At The End Of Section 105 Is Necessarily Lifted At Least When There Is Enough Evidence On Record To Justify Giving The Benefit Of Doubt To The Accused On The Question Whether He Is Guilty Of The Offence With Which He Is Charged; And , Thirdly, If The Doubt, Though Raised Due To Evidence In Support Of The Exception Pleaded, Is Reasonable And Affects An Ingredient Of The Offence With Which The Accused Is Charged, The Accused Would Be Entitled To An Acquittal. As I Read The Answer Of The Majority In Parbhoo Case I Find It Based On These Three Propositions Which Provide The Ratio Decidenti And This Is All That Needs To Be Clarified."
"The Practical Result Of The Three Propositions Stated Above Is That An Accused's Plea Of An Exception May Reach One Of Three Not Sharply Demarcated Stages, One Succeeding The Other, Depending Upon The Effect Of The Whole Evidence In The Case Judged By The Standard Of A Prudent May Weighing Or Balancing Probabilities Carefully. These Stages Are : Firstly, A Lifting Of The Initial Obligatory Presumption Given At The End Of Section 105 Of The Act; Secondly, The Creation Of A Reasonable Doubt About The Existence Of An Ingredient Of The Offence; And Thirdly, A Complete Proof Of The Exception By "a Preponderance Of Probability', Which Covers Even A Slight Tilt Of The Balance Of Probability In Favour Of The Accused's Plea. The Accused Is Not Entitled To An Acquittal If His Plea Does Not Get Beyond The First Stage. At The Second Stage, He Becomes Entitled To Acquittal By Obtaining A Bare Benefit Of Doubt. At The Third Stage, He Is Undoubtedly Entitled To An Acquittal. This, In My Opinion, Is The Effect Of The Majority View In Parbhoo Case Which Directly Relates To First Two Stages Only. The Supreme Court Decisions Have Considered The Last Two Stages So Far, But The First Stage Has Not Yet Been Dealt With Directly Or Separately There In Any Case Brought To Our Notice.
Mathur, J. With Whom Five Judges Agreed, While Holding That Ratio Laid Down By The Majority In Parbhoo Case Is In Conformity With Law, However, Observed That The Reasoning In Support Of The Conclusions Is Erroneous. Beg, J. Was Not Prepared To Go To That Extent. The Majority Speaking Through Shri Mathur, J. Laid Down That The Dictum In Parbhoo Case Which Is Till A Good Law, Can, However, Be Modified As Follows: (AIR P.79, Para 93)
"In A Case In Which Any General Exception In The India Penal Code, Or Any Special Exception Or Proviso Contained In Another Part Of The Same Code,or In Any Law Defining The Offence, Is Pleaded Or Raised By An Accused Person And The Evidence Led In Support Of Such Plea Judged By The Test Of The Preponderance Of Probability As In A Civil Proceeding Fails To Displace The Presumption Arising From Section 105 Of The Evidence Act, In Other Words, To Disprove The Absence Or Circumstances Bringing The Case Within The Said Exception; But Upon A Consideration Of The Evidence As A Whole, Including The Evidence Given In Support Of The Plea Based On The Said Exception Or Proviso, A Reasonable Doubt Is Created In The Mind Of The Court, As Regards One Or More Of The Ingredients Of The Offence, The Accused Person, Shall Be Entitled To The Benefit Of The Reasonable Doubt As To His Guilt And Hence To Acquittal Of The Said Offence. "
Recently, The Aforesaid Legal Aspect Was Dealt With By The Apex Court In Darshan Singh Vs. State Of Punjab:2010( 68) ACC 709 Wherein Apex Court Has Been Pleased To Observe As Under:-
"58. The Following Principles Emerge On Scrutiny Of The Following Judgements:
(i) Self-preservation Is The Basic Human Instinct And Is Duly Recognized By The Criminal Jurisprudence Of All Civilized Countries. All Free, Democratic And Civilized Countries Recognize The Right Of Private Defence Within Certain Reasonable Limits.
(ii) The Right Of Private Defence Is Available Only To One Who Is Suddenly Confronted With The Necessity Of Averting An Impending Danger And Not Of Self-creation.
(iii) A Mere Reasonable Apprehension Is Enough To Put The Right Of Self Defence Into Operation. In Other Words, It Is Not Necessary That There Should Be An Actual Commission Of The Offence In Order To Give Rise To The Right Of Private Defence. It Is Enough If The Accused Apprehended That Such An Offence Is Contemplated And It Is Likely To Be Committed If The Right Of Private Defence Is Not Exercised.
(iv) The Right Of Private Defence Commences As Soon As A Reasonable Apprehension Arises And It Is Co-terminus With The Duration Of Such Apprehension.
(v) It Is Unrealistic To Expect A Person Under Assault To Modulate His Defence Step By Step With Any Arithmetical Exactitude.
(vi) In Private Defence The Force Used By The Accused Ought Not To Be Wholly Disproportionate Or Much Greater Than Necessary For Protection Of The Person Or Property.
(vii) It Is Well Settled That Even If The Accused Does Not Plead Self Defence, It Is Open To Consider Such A Plea If The Same Arises From The Material On Record.
(viii) The Accused Need Not Prove The Existence Of The Right Of Private Defence Beyond Reasonable Doubt.
(ix) The Indian Penal Code Confers The Right Of Private Defence Only When That Unlawful Or Wrongful Act Is An Offence.
(x) A Person Who Is In Imminent And Reasonable Danger Of Losing His Life Or Limb May In Exercise Of Self Defence Inflict Any Harm Even Extending To Death On His Assailant Either When The Assault Is Attempted Or Directly Threatened."
From The Above Succinct-exposition Of Law, Which Are Binding Precedents, There Remains No Doubt That So Far As An Accused Is Concerned, He Has Only To Bring His Case Within The Fold Of Preponderance Of Probabilities To Succeed Unlike Prosecution Who Has To Establish It's Case To The Hilt Clearing All Doubtful Prognosises.
Another Important Aspect Of The Appeal, Which Requires To Be Dealt With At This Juncture Is That If, Prosecution Fails To Explain Injuries Sustained By An Accused In The Same Incident, Which Are Not Superficial And Cannot Be Manufactured Or Self-suffered Then What Will Be It's Effect? This Aspect Of The Matter No Longer Remains Res Integra As It Has Been Concluded By Numerous Apex Court Decisions Having Binding Effects. To Star With Magna Carta Decision On The Said Aspect It Was Held By The Apex Court In The Case Of Lakshmi Singh Versus State Of Bihar : AIR 1976 SC 2263 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 Earliercase, 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."
The Above View By The Apex Court Still Holds Water And Has Been Applied Approved And Affirmed In Subsequent Decisions Wherever It Applied Viz, State Of Rajasthan V. Madho And Anr.:1991 Suppl. (2) SCC 396; State Of Bihar V. Mohammad Khursheed:1971 (3) SCC 423.
Revisiting Facts Of Instant Appeal And Applying The Aforesaid Legal Principles, It Is Perceptibly Clear That Neither In The FIR Ext. Ka-1, Nor During Investigatory Statements Recorded Under Section 161 Cr.P.C., The Three P.Ws., Who Are Mother, Son And Nephew Have Not Stated Any Thing Regarding Injury Sustained By Accused Sant Ram. They Suppressed Said Fact. Perusal Of The Injury Report Of Deceased Accused Sant Ram, Vide Ext. Kha-3 Indicate That The Injuries Suffered By Him Cannot Be Self Inflicted Or Manufactured. Even According To The Prosecution Witnesses Wife Of Informant Had Caused Those Injuries During The Incident. In Such A View, It Was Required Of The Prosecution To Explain How And In What Manner Sant Ram Sustained Those Injuries. As Recorded Above, Prosecution Had Concealed It From The I.O. But During Trial To Embellish It's Version Witnesses Testified That Wife Of Informant Caused Those Injuries By Terracotta Roof Tiles, Which Obviously Is A False Explanation For The Reason That In A Scuffled Where Family Members Are Involved No Lady Will Take The Risk Of Throwing Roof Tiles As It May Injured Her Relatives. Thus Explanation Offered By The Prosecution Regarding Injury Of The One Of The Accused Does Not Inspire Any Confidence. In Any View A Doubt Is Created In Court's Mind Regarding Genesis Of The Incident Which Seems To Be Shrouded In Mystery. A Belated After Thought Explanation During Trial, Without Convincing Explanation Forthcoming For Not Divulging It At The Earliest Opportunity By The Prosecution Side Should Be Discorded And Eschewed From Consideration As It Is Required Of The Courts To Separate The Grain From The Chaff And From The Prosecution To Prove The Guilt To The Accused To The Hilt. Injuries Of Sant Ram Is Referred To Below:-
"1. Lacerated Wound 5cm X .5cm X .5cm On The Back Of The Scalp Right Side Over Parital Bone. Blood Clot Present.
2. Bruise 13cm X 1cm On The Back Crossing Vertebral Column, Bluish Red In Colour.
Duration:- About 1/2 Day.
All The Injuries Are Simple Caused By Blunt Object."
Further It Is Admitted Case By The Prosecution That Sant Ram Was Present At The Police Station When The Prosecution Side Had Gone To Lodge His FIR. According To The Defence Case, FIR Of Sant Ram Was Not Taken Down By The I.O. And Instead FIR Of His Mother Vide Kha-1 And Kha-2 Was Recorded Next Day In The Morning On The Basis Of Which Informant And Deceased Were Arrested. Why Then They Did Not Inform I.O. At That Point Of Time That Injury To Sant Ram Was In Exercise Of Right Of Private Defence. It Was For Causing Those Injuries To Sant Ram That Informant And Deceased Went To Jail And Ultimately Deceased Lost His Life. Conspicuous Silence Of Wife And Son In The Background Of These Facts Makes Them Unreliable And Untrustworthy Witnesses. There Is No Denying Of Fact That Sant Ram Did Sustain Injury During The Course Of The Same Incident In Which The Prosecution Side Also Sustained Injury. Ipse Dixit By The Two Interested, Related, Inimical And Partisan Prosecution Witnesses Without Independent Corroboration, Therefore Does Not Inspire Any Confidence. These Were The Statements, Which For The First Time Were Stated In Trial And, Therefore, Is An Embellishment Only For The Purposes To Wriggle Out From The Law Laid Down By The Apex Court As Well As By This Court That If The Prosecution Fails To Explain Injuries Sustained By The Accused Then Either The Prosecution Story Is Not Correct Or The Prosecution Witnesses Are Not Telling The Truth And Hence Are Not Wholly Reliable And Truthful. At This Point It Is To Be Noted That Opinion Of The Trial Judge On This Aspect Of The Matter Is Faulty And Against The Law Laid Down By The Apex Court. Trial Judge Mis Directed Herself And Applied Binding Precedents Incorrectly By Observing That Accused Failed To Establish His Defence To The Hilt And There Is No Concrete Proof Of Their Defence Plea. Defence FIR And Injury Report Filed And Duly Exhibited As Defence Ext. Kha-1 To Kha3 Were The Documentary Proof Of The Aforesaid Fact Corroborating Accused Statement Under Section 313 Cr.P.C And Infact With Tongue In Cheek Were Admitted To Be Correct By The Prosecution Witnesses And Hence Entire Approach By The Trial Judge In Analysing Defence Evidence On Record Is Otherwise. Once Prosecution Admitted Causing Of Injuries To Accused Sant Ram And It Also Admitted That In Cross Version Informant And Deceased Were Arrested And Lodged In Jail, What Was Required Of The Trial Judge Was To Critically Appreciate Prosecution Evidences For It's Acceptability Or Negation, Which It Did Not Do. On Preponderance Of Probability Defence Exhibits Were Sufficient To Demolish Edifice Of The Prosecution Version As Admittedly Injuries Of Sant Ram Were Neither Superficial Nor Self Suffered. Observation By The Trial Judge Is Against These Defence Exhibits And Therefore Cannot Be Countenanced.
In Above Connection Another Opinion By The Trial Judge That Injury Report Of The Sant Ram By Itself Is Not Sufficient To Discard Prosecution Version Is Also Not Acceptable Because Right Of Private Defence Of An Accused, If Established On Preponderance Of Probability Is Sufficient To Through Over Board Entire Prosecution Version. This Is Clear From The Above Referred Decisions Of The Apex Court, Which Has Got A Binding Effect On This Court.
Turning To Another Important Aspect Of The Case It Is Evident That Although The Incident Occurred In The Midst Of The Hamlet Of Appellants And Informant Village Yet No Independent Witness Came Forward To Support Prosecution Version. Moreover Perusal Of FIR Ext. Ka-1 Indicates That The Same Was Not Written By The Informant. It Also Does Not Appeal To Reason That Wife Smt. Sundari P.W. 2, Watched Assault On Her Husband Like A Silent Spectator And Did Not Intervene To Save His Life. Another Unsatisfactory Feature Of Prosecution Story Is That Prosecution Has Withheld Wife Of Informant From Entering Into The Witness Box To Corroborate Prosecution Version Of Her Making Assault On The Accused. It Was She, Who Had Caused Injury To Sant Ram. She Would Have Been The Best Witness To Testify The Aforesaid Fact But For The Reasons Best Known To The Prosecution, She Was Withheld.
Slightly Digressing, Contention Of Learned Amicus Curiae That There Was No Unlawful Assembly To Commit Murder Of The Deceased And Therefore, Conviction With The Aid Of Section 149 I.P.C. Is Not Sustainable Is An Argument, Which Seems To Have Been Raised Only To Be Repelled. From The Prosecution Allegations An Unlawful Assembly Was In Existence From The Very Beginning And This Fact Can Very Well Be Perceived From The Sequence Of Events That Seven Or Eight Accused Persons Joined Together Armed With Blunt Objects, Trespassed Into The House Of The Informant And Assaulted Inmates. They Resiled From The Scene Of The Incident Together. There Is No Doubt In The Mind Of This Court That There Was An Unlawful Assembly In Existence From The Very Beginning And Therefore, Learned Amicus Curiae's Submission In Respect Of Non Applicability Of Section147/149 IPC Is Hereby Repelled.
Another Disturbing Feature Of The Prosecution Case Is That In Examination Under Section 313 Cr.P.C. No Question Was Put To The Accused That During The Course Of The Incident, Sant Ram Was Assaulted By The Wife Of The Informant. If The Prosecution Wanted To Rely On The Said Explanation It Should Have Afforded An Opportunity To The Accused Appellant To Explain. Since That Having Not Been Done Mere Ipse Dixit By The Three Fact Witnesses In That Respect Does Not Appeal To Reason. This Non Questioning Definitely Prejudiced Accused Case As The Same Was Never Prosecution Case Prior To Testimony Of Witnesses During Sessions Trial. In This Regard Reliance Can Be Had From Following Apex Court Decisions.
In Ajay Singh Versus State Of Maharastra: AIR 2007 SC 2188it Has Been Held By The Apex Court As Under:-
"11. The Object Of Examination Under This Section Is To Give The Accused An Opportunity To Explain The Case Made Against Him. This Statement Can Be Taken Into Consideration In Judging His Innocence Or Guilt. Where There Is An Onus On The Accused To Discharge, It Depends On The Facts And Circumstances Of The Case If Such Statement Discharges The Onus.
12. The Word 'generally' In Sub-section (1)(b) Does Not Limit The Nature Of The Questioning To One Or More Questions Of A General Nature Relating To The Case, But It Means That The Question Should Relate To The Whole Case Generally And Should Also Be Limited To Any Particular Part Or Parts Of It. The Question Must Be Framed In Such A Way As To Enable The Accused To Know What He Is To Explain, What Are The Circumstances Which Are Against Him And For Which An Explanation Is Needed. The Whole Object Of The Section Is To Afford The Accused A Fair And Proper Opportunity Of Explaining Circumstances Which Appear Against Him And That The Questions Must Be Fair And Must Be Couched In A Form Which An Ignorant Or Illiterate Person Will Be Able To Appreciate And Understand. A Conviction Based On The Accused's Failure To Explain What He Was Never Asked To Explain Is Bad In Law. The Whole Object Of Enacting Section 313 Of The Code Was That The Attention Of The Accused Should Be Drawn To The Specific Points In The Charge And In The Evidence On Which The Prosecution Claims That The Case Is Made Out Against The Accused So That He May Be Able To Give Such Explanation As He Desires To Give.
13. The Importance Of Observing Faithfully And Fairly The Provisions Of Section313 Of The Code Cannot Be Too Strongly Stressed. It Is Not Sufficient Compliance To String Together A Long Series Of Facts And Ask The Accused What He Has To Say About Them. He Must Be Questioned Separately About Each Material Substance Which Is Intended To Be Used Against Him. The Questionings Must Be Fair And Couched In A Form Which An Ignorant Or Illiterate Person Will Be Able To Appreciate And Understand. Even When An Accused Is Not Illiterate, His Mind Is Apt To Be Perturbed When He Is Facing A Charge Of Murder. Fairness, Therefore, Requires That Each Material Circumstance Should Be Put Simply And Separately In A Way That An Illiterate Mind, Or One Which Is Perturbed Or Confused, Can Readily Appreciate And Understand.
14. Above Being The Position, The Inevitable Conclusion Is That The Prosecution Has Failed To Establish The Accusations. The Conviction Is Set Aside. The Appeal Is Allowed. The Appellant Be Set At Liberty Forthwith If Not Required In Any Other Case."
In Vikramjit Singh Versus State Of Punjab: 2007 CrL.J. 1000 Apex Court Held As Under:-
"22. It Is Now A Well-settled Principle Of Law That The Circumstances Which According To The Prosecution Lead To Proof Of The Guilt Against The Accused Must Be Put To Him In His Examination Under Section 313 Of The Code Of Criminal Procedure. It Was Not Done.
23. In Tara Singh V. The State [AIR 1951 SC 441], The Law Is Stated In The Following Terms:-
"The High Court Also Bases Its Conclusion On The Circumstantial Evidence Arising From The Production Of The Kripan And The Recovery Of The Shirt From The Appellant. Those Articles Are Said To Be Stained With Human Blood. The Appellant Was Not Asked To Give Any Explanation About This. The Serologists Report Had Not Been Received When The Appellant Was Questioned By The Committing Magistrate. Therefore, He Could Not Be Asked To Explain The Presence Of Human Bloodstains On The Kripan. All He Was Asked Was Whether The Bloodstained Kripan Was Recovered At His Instance. That Is Not Enough. He Should Also Have Been Asked Whether He Could Explain The Presence Of Bloodstains On It. The Two Are Not The Same. Then, In The Sessions Court There Was The Additional Evidence Of The Imperial Serologist Showing That The Kripan Had Stains Of Human Blood On It. That Was An Additional And Very Vital Piece Of Evidence Which The Appellant Should Have Been Afforded An Opportunity Of Explaining."

Above Was One Of The Reasons For The Apex Court To Acquit The Accused.
Concluding The Discussion, In My Opinion Prosecution Has Failed To Substantiate The Charge Against The Sole Surviving Appellant Sri Ram And Hence His Appeal Is Hereby Allowed And His Conviction And Sentence By Order Dated 20.8.81 Through Impugned Judgement And Order Recorded By Xth Additional Sessions Judge, Etah In S.T. No.689of 1978, State Vs. Pokhpal And Others Is Hereby Set Aside. He Is Acquitted Of All The Charges Against Him. Appellant Sri Ram Is On Bail. He Need Not Surrender. His Bail Bonds And Surety Bonds Are Discharged.
Let A Copy Of This Judgement Be Certified To The Trial Court For It's Intimation.
HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Court No.53

Criminal Appeal No.1871 Of 1981

Pokhpal & Others ..........................................Appellants.
Versus
State Of U.P. ...........................................Respondents.

Hon'ble Vinod Prasad, J.

Seven Appellants Including Three Sibling Brothers Namely, Pokhpal S/o Rammu, Ramcharan, Laljit And Sant Ram, All S/o Itwari, Rajendra S/o Sukhbas, Khyali S/o Roshan, And Shri Ram S/o Mangali Have Knocked The Door Of This Court Questioning And Challenging Their Convictions For Offences Under Sections 147, 452/149, 304/149, 323/149 I.P.C. Recorded By Xth Additional Sessions Judge, Etah In S.T. No.689 Of 1978, State Vs. Pokhpal And Others Relating To PS Jaithra, District Etah. For The First Charge They Were Sentenced To Three Months R.I., For The Second Count One Year R.I., For The Third Count Five Years R.I. And For The Last Count Two Months R.I. All The Sentences Were Directed To Run Concurrently By The Trial Judge Vide Impugned Judgement And Order Dated 20.8.1981.
Prosecution Version, In Nutshell, As Is Perceptible From Written F.I.R. Ext. Ka-1 And Depositions Of Fact Witnesses, Were That Ram Baksh Resident Of Village Harsinghpur, Police Station Jaithra, District Etah Had Two Sons Parsadi Lal (deceased) And Mewa Ram. Parsadi Lal Had Two Issues P.W.1 Gyan Singh (informant) And P.W.3 Ram Swaroop. Ganga Dayal Another Witness Of The Incident, (not Examined During Trial) Is The Son Of Mewa Ram.
At 4.00 P.m. On 1.7.1977, Because Of Some Scuffle Between Children, There Was A Triadic Verbal Altercation Between The Wives Of Accused Appellant Sant Ram And PW1 Gyan Singh, When Wife Of Sant Ram Had Gone To Later's House To Register Her Protest Regarding The Said Scuffle And There She Was Vetuparised. This Temerity Was Informed By Sant Ram's Wife To Her Family Members On Which The Main Incident Occurred At 8.00 P.m, The Same Day, When Seven Of The Appellants Named Above, All But Accused Khayali, Armed With Lahti And Khyali Armed With Danda, Hurling Abuses Raided The House Of The Informant P.W.1 And After Trespassing Inside Slapped And Boxed Informant. Shrieks Of Informant Attracted His Father On Which Raiders Assaulted Both Of Them In Their Courtyard. When P.W.2 Smt. Sundari, Mother Of Informant Encircled Her Son In An Attempt To Save Him She Was Also Bet And Caused Injuries. Hue And Cry Raised By House Inmates Attracted Co-villagers Ganga Dayal And Ram Swaroop, Who Intervened And Saved Lives Of The Injured And Had Witnessed The Incident. Accused Persons Thereafter Retreated To Their House. PW 1 Thereafter Scribed FIR, Ext. Ka 1, Arranged A Bullock Cart, Travelled A Distance Of Seven Miles With His Parents And Then Lodged His F.I.R. At The Police Station Jaithra, District Etah, Same Night At 2.00 A.m.
Head Constable Panna Lal P.W.7 Registered The FIR As Crime No.96 Of 1977, Under Sections 147, 452, 323 IPC, Prepared Chik F.I.R. Ext. Ka-15 And Corresponding GD Entry Ext. Ka-16. Injured Persons Thereafter Were Dispatched To The Hospital For Medical Examination And Management Of Their Injuries.
P.W.8 Station Officer, P.S. Jaithara, S.P. Singh, Commenced The Investigation Into The Crime On 2.6.2007, Recorded Investigatory 161 Cr.P.C. Statements Of The Informant And His Father Prasadi Lal. After Three Days, On 5.6.1977, He Again Started Investigation, Came To The Place Of The Incident And Searched For The Accused But Could Not Find Them. On 7.7.1977 I.O. Interrogated And Recorded Investigatory Statements Of Injured P.W. 2 Smt. Sundari And Witnesses Ganga Dayal And P.W.3 Ram Swaroop. Subsequent Thereto He Conducted Spot Inspection And Sketched Site Plan Map Ext. Ka-18.
Following Day Of The Incident 2.6.77, In The Morning At 7.15 A.m. An FIR Against The Informant P.W.1 And His Father (deceased) And Others Was Also Lodged At The Same Police Station By Mother Of The Accused Sant Ram As Crime No. 96 A/77 U/S 147, 148, 324 IPC, Mentioning Date And Time Of The Incident To Be 1.6.77 At About 7 P.m., Vide Ext. Kha-1 And Kha-2, And In That Connection P.W.1 And Deceased Were Arrested. Condition Of Prasadi Lal, While Under Incarceration In Cross Case Started Deteriorating And Therefore, He Was Shifted And Admitted In The Hospital, Where He Lost Battle For His Life On 7th June 1977. PW6 S.I. Sardar Singh Got Information Regarding Demise Of Deceased From District Jail And Therefore Accompanied With Constables Omvir And Captan Singh He Proceeded For The District Hospital, Where He Conducted Inquest On The Cadaver Of The Deceased And Prepared Inquest Report And Other Relevant Papers Vide Ext. Ka 9 To Ext. Ka 14 And Then Dispatched The Corpse For Autopsy Examination Through Accompanying Constables. I.O. P.W.8 S.P. Singh, After Receiving Information About The Demise Of Parsadi Lal, Converted The Crime From 323 To 304 IPC. Concluding Investigation I.O. Charge- Sheeted The Accused Persons Vide Ext. Ka-19.
Medical Examinations Of Injured Witnesses Gyan Singh, PW1, Parsadi Lal (the Then Injured) And Smt. Sundari, PW2 Were Got Done On The Following Day Of The Incident 2.6.1977 At 10.15, 10.30 And 10.45 A.m. Respectively By P.W.5 Dr. I.P.S. Bismik At P.H.C. Jaithra. Injury Report Of Informant P.W.1 Gyan Singh, Ext. Ka-5, Is Reproduced Below:-
"1. Lacerated Wound 3.5 Cm X .5 Cm X .5 Cm On The Right Side Of The Scalp 9 Cm Above Medial End Of Right Eye Brow, Blood Clot Present Obliquely Placed.
2. Lacerated Wound 2 Cm X .5 Cm X .5 Cm On The Right Side Of The Scalp Medial To Injury No.1 And Joining Injury No.1, Blood Clot Present, Obliquely Placed.
3. Bruise 4 Cm X 1 Cm On The Right Shoulder, Bluish Red In Colour.
Duration:- About 1/2 Day.
All The Injury Are Simple, Caused By Blunt Object."
Injury Report Of Deceased (then Injured) Parsadi Lal, Vide Ext. Ka-4, Is Reproduced Here Under:-
"1. Lacerated Wound .8 X .2 Cm X .1 Cm On The Back Of The Scalp Left Side Over Occipital Bone Blood Clot Present.
2. Abrasion 3 Cm X 1.5 Cm On The Lateral Aspect Of The Left Fore-arm In Upper 1/3rd Scab Present.
3. Lacerated Wound 1 Cm X 5 Cm X .1 Cm On The Dorsal Aspect Of Priximal Interphalangeal Joint Of Right Little Finger.
Duration:- About 1/2 Day.
All The Injuries Are Simple, Caused By Blunt Object."
Injury Report Of P.W.2 Smt. Sundari, Ext. Ka-3, Is Reproduced As Under:-
"1. Bruise 5 Cm X 1 Cm On The Posterior Lateral Aspect Of Left Upper Arm In Middle 1/3rd Bluish Red In Colour.
2. Bruise 5 Cm X 1.5 Cm On The Front Aspect Of Left Thigh In Lower 1/3rd, Bluish Red In Colour.
Duration:- About 1/2 Day.
All The Injuries Are Simple, Caused By Blunt Object."
P.W.4 Dr. S. Prasad Had Conducted Autopsy Examination On The Corpse Of The Deceased On 7.6.1977 At 5.30 P.m., Which Was Brought To Him By Constable C.P. 546 Kaptan Singh And C.P. 188 Onkar Singh, Vide Ext. Ka-2. In The Estimation Of The Doctor Deceased Was 65 Years Of Age, ¾th Of The Day Had Lapsed Since His Demise. He Was Having A Fragile Physic, Rigor Mortis Was Passing Off From His Upper Limbs And Was Present In The Lower Limbs And Little Finger Of Right Hand Was Bandaged. Eyes Of The Deceased Were Closed. Autopsy Doctor Noted Following Anti-mortem Injuries On The Body Of The Deceased:-
"1. Healing Wound 4cm X 0.5cm X Scalp Over Back Clots Upper Head.
2. Contused Diffuse Swelling 10cm X 6cm On The Back Surface Rt. Hand.
3. Lacerated Inside Surface 2cm X 0.5cm Muscle On The Back Surface Little Finger Rt. Hand.
4. Abrasion 2cm X 4cm On The Back Of Rt. Side Scapular Region.
5. Swelling All Over The Rt. Upper Limbs No Echymosis On The Cutting Of The Upper Limbs Due To Lymphosis."
In Doctor's Opinion Cause Of Deceased Death Was Meningeal Haemorrhage Of The Brain.
On The Basis Of Charge Sheet, Ext. Ka-19, Accused Persons Were Summoned To Stand Trial By 3rd Additional Munsif Magistrate, Etah Vide His Order Dated 21.1.1978, After Registering Criminal Case No. 854 Of 1978 (State Vs. Pokhpal And Others). Finding Accused Case Triable By Court Of Sessions, Magistrate Committed It To Sessions Court For Trial On 28.11.1978 And On That Basis S.T. No. 689 Of 1978, State Versus Pokhpal And Others Was Registered Before Sessions Judge, Etah On 28.11.1978.
Xth Additional Sessions Judge, Etah Charged The Appellants With Offences U/Ss 147, 452/149, 304/149 And 323/149 On 12.9.1980. Aforesaid Charges Were Then Read Out To The Accused Persons, Who Denied The Same And Claimed To Be Tried And Hence Sessions Trial Proceeded To Bring Home The Guilt Of The Accused Appellants Commenced.
To Establish Appellant's Guilt Beyond Any Shadow Of Doubt, Prosecution, During Course Of Session's Trial Tendered In All Eight Witnesses Out Of Whom P.W.-1 Informant Gyan Singh, P.W. 2 Smt. Sundari, (injured Eye-witness) And P.W. 3 Ram Swaroop, (brother Of The Informant), Were Fact Witnesses. Other Formal Witnesses Included P.W.4 Dr. S. Prasad, (who Had Examined The Injured), PW5 Dr. I.P.S. Bismik P.W.6, S.I. Sardar Singh, (who Had Conducted Inquest On The Dead Body Of The Deceased On 7.6.1977), P.W.7 H/C Panna Lal, (who Had Prepared The Chik FIR And The GD Entry) And PW8 I.O. S.P. Singh.
Accused Persons In Their Statements Under Section 313 Cr.P.C. Denied Incriminating Circumstances Appearing In Prosecution Evidences Put To Them And Took The Defence That In Fact It Was The Prosecution Side Who Had Raided The House Of The Accused Sant Ram And Had Started Assaulting Him Who, In Exercise Of His Right Of Private Defence Wielded Lathi And Caused Injury On The Prosecution Side. Thus, Defence Of The Appellant's Is That Of Exercise Of Right Of Private Defence By Accused Sant Ram And False Implication Of Other Accused. To Substantiate His Stand Of Right Of Private Defence On Preponderance Of Probability, Accused Sant Ram Examined D.W. 1 Dr. I.P.S. Bismik And Had Got Proved His Injury Report Ext. Kha-3 And Relied Upon Documentary Evidences Of FIR Lodged By His Mother Vide Ext. Kha-1 And Kha-2.
Trial Judge, After Critically Appreciating Prosecution And Defence Evidences Came To The Conclusion That The Accused Had No Right Of Private Defence, Their Version Was Found To Be False And It Was The Accused, Who Were The Aggressors And, Therefore, Finding The Prosecution Case Established To The Hilt Beyond All Reasonable Doubt, Convicted The Appellants For Offences Under Sections 147, 452/149, 304/149, 323/149 I.P.C. And Implanted Sentences, Which Has Been Recorded In The Opening Paragraph Of This Judgement And Hence Are Being Eschewed From Being Repeated. Hence This Appeal By The Appellants.
Pendent Elite This Appeal, Six Of The Appellants Pokhpal, Ramcharan, Laljit, Sant Ram, Rajendra And Khyali Left For Their Heavenly Abode And Consequently, Their Appeals Were Abated On 18.11.2005. This Leaves This Court Only With The Appeal Of One Of The Appellant Sri Ram S/o Mangali To Be Decided.
The Appeal Is Of The Year 1981 And Was Printed In The Cause List For Final Argument. When It Was Called Out, Counsel For The Appellants Did Not Appear To Argue The Appeal And Hence, Applying The Law Laid Down By The Apex Court In Bani Singh And Others Vs. State Of U.P.: AIR 1996 Supreme Court 2439;Magat Singh Versus State Of Punjab: (2005)XI SCC 185; Babu Lumbaji Kamble Versus State Of Maharastra:(2005)XI SCC 413 And Rishi Nandan Pandit Versus State Of Bihar: AIR 1999 SC3850, Sri Sandeep Kumar Singh Advocate Was Appointed As Amicus Curiae To Argue The Appeal On Behalf Of Sole Surviving Appellant Sri Ram. Sri Patanjali Mishra And Sri Raghuraj Mishra, Learned AGAs Have Been Heard On Behalf Of Respondent State.
Castigating And Criticizing Impugned Judgement Of Conviction And Sentence, Learned Amicus Curiae Raised Following Contentions. Firstly, He Submitted That Conviction Of The Appellant Under Section 304 I.P.C. Is Not Sustainable At All As Taking Prosecution Evidence As It Is Without Any Addition Or Subtraction, What Is Perceptibly Clear Is That The Charge And Guilt Of The Appellants Will Not Travel Beyond The Scope Of Section 325 I.P.C. The Contention Is Based On The Analogy That Seven Persons Are Alleged To Have Assaulted Three Prosecution Persons But They Had Sustained Only Eight Injuries. Two Of The Injured P.W. 1 And P.W. 2 Did Not Sustain Any Grievous Injury. Only One Fatal Injury Was Caused To The Deceased Parsadi Lal And It Is Not Known As To Who Was The Author Of That Injury And, Therefore, The Offence Of The Accused Will Not Travel Beyond The Purview Of Section 325 I.P.C. Next It Was Contended That All The Fact Witnesses Were Interested, Related, Inimical And Partisan And Therefore No Implicit Reliance Can Be Placed On Their Testimonies Specially Keeping In View The Fact That Although Place Of The Incident, According To The Prosecution Version, Is In The Midst Of The Hamlet Of Village Harsingpur But No Independent Witness From Surrounding Neighbours Came Forward To Lend Credence To The Prosecution Story. It Was Next Submitted That The Appellant Claimed Exercise Of Right Of Private Defence And To Substantiate That Plea Copy Of The FIR And The Injury Report Of The Appellant Sant Ram Was Tendered As Ext. Kha-1 To Kha-3 But The Trial Judge Wrongly And Illegally, On All Wrong Premises, Rejected The Defence Version By Opining That The Accused Has Failed To Prove It's Case Beyond All Reasonable Doubt. This, According To Learned Amicus Curiae, Is A Totally Wrong Approach Adopted By The Trial Judge, Who Had Failed To Apply Correct Legal Principle As Laid Down By The Apex Court As Well As By This Court In Cases Relating To Right Of Private Defence. Next It Was Submitted That Although The Deceased Was Arrested And Was Incarcerated From 1.6.1977 Till 5.6.1977, Before His Hospitalization Yet, No Attempt Was Made To Get His Dying Declaration Recorded. The Argument Is That Deceased Was Not Prepared To Support The Prosecution Version And Hence The Lethargy Was Adopted By The I.O. Another Ancillary Argument Is That The Investigation Conducted By The I.O. Suffers From Many Infirmities And Vices And Does Not Inspire Any Confidence. Learned Counsel Further Submitted That Section 149 I.P.C. Does Not Apply On The Facts Of The Present Case As There Was No Unlawful Assembly Harbouring Common Intention To Commit Culpable Homicide Not Amounting To Murder And Therefore Conviction Of The Appellant With The Aid Of Section 149 I.P.C. For Charges Under Sections 304, 452, 323 I.P.C. Is Unsustainable, And Since There Did Not Exit Any Unlawful Assembly Conviction U/s 147 I.P.C. Also Is Unmerited. It Was Next Submitted That The Incident Had Occurred In The Year 1977 And Since Then 33 Years Have Gone By Therefore, Appellant Sri Ram Should Not Be Sent To The Jail After Lapse Of So Many Decades Specially When He Had No Criminal Proclivity And Had No Criminal History, In The Event He Is Not Acquitted On The Merits Of The Appeal.
Learned AGA, Per Contra, Supported Judgement Of Conviction And Sentence.
I Have Considered The Arguments Raised By Both The Sides. Perusal Of The Record Indicates That It Is A Case Where Happening Of The Incident Is More Or Less Admitted And Both The Sides Have Their Own Counter Versions Regarding Happening Of The Incident. According To The Prosecution Case Incident Occurred On 1.6.1977 At 8.00 P.m. In Court Yard Of The House Of The Informant Whereas Defence Case Is That It Occurred Same Day At 7.00 P.m. Near The House Of Deceased Appellant Sant Ram. Both Sides Lodged Their F.I.Rs. On 2.6.1977. Prosecution F.I.R. Was Registered At 2.00 A.m., Same Night And Defence FIR Was Registered Following Morning At 7.15 A.m. Lodged By Ram Kali, Mother Of The Appellant Sant Ram, Since Deceased. During Trial Accused Pleaded The Defence That It Was Prosecution Side Which Was The Aggressor And It Was They Who Had Started The Incident By Assaulting Sant Ram, Who, In Exercise Of His Right Of Private Defence, Retaliated By Making Defence Assault. Till The Investigation Stage And Filing Of Charge Sheet Prosecution Did Not Explain Injuries Sustained By Sant Ram But During Trial To Overcome The Difficulty Of Explaining Injuries From The Side Of The Accused That It Embellished It's Case By Deposing That Wife Of Informant Had Assaulted Appellant Sant Ram With Terracotta Roof Tiles (Khapara) And Utensils During The Incident And That Is How The Said Appellant Had Sustained Injuries. Thus, Now There Remains No Dispute That Besides Three Prosecution Injured, Appellant Sant Ram, Since Deceased, Also Sustained Injury In The Same Incident. Now Before Proceeding Further And Adverting And Summating The Facts Of The Present Appeal Searching Light Glimpse On The Laws Of Right Of Private Defence Is Sketched Below.
In Prabhu Vs. Emperor: AIR 1941 Allahabad 402, Seven Judges Bench Of This Court Laid Down The Law That In Matters Of Private Defence Plea By The Accused, Whereas It Is For The Prosecution To Prove It's Case Beyond All Shadow Of Reasonable Doubt To The Hilt But, It Is Sufficient For The Accused To Prove His Defence Only On Preponderance Of Probability To Succeed. He Is Not Required To Establish His Defence Plea Beyond All Shadow Of Reasonable Doubt. Thus The Degree Of Proof Required From An Accused Is Of Much Lesser Degree Than What Is Required From The Prosecution. Accused Has Only To Create A Reasonable Doubt In The Prosecution Story To Succeed. This Does Not However Mean That Every Prognosis Or Every Weird Hypothesis Put Forth By The Accused Shall Absolve Him Of Discharging His Burden Of Proof Of Exercise Of Right Of Private Defence. The Doubt Which The Law Requires From An Accused To Establish Should Not Be Undue Vacillating, Weak, Indolent, Drowsy Or Confused. It Should Be Doubt Of A Prudent Man Acceptable To Commonest Common Sense. Thus If An Accused Succeeds In Bringing Forth A Prognosis, Which On The Facts And Circumstances Involved And Peculiar To Each Case, Appears To Be Reasonable, Judging From An Ordinary Prudent Man's View, Then Accused Has Successfully Discharged His Burden. He Is Not Required To Establish His Defence Beyond All Shadow Of Reasonable Doubt To Successfully Claim Benefit Of Plea Of Right Of Private Defence. Full Bench In Prabhoo's Case(Supra) Relied Upon Two Decisions Emperor Versus Dhampala : AIR 1937 Rangoon 63 And Woolmington Versus Director Of Public Prosecution : 1935 AC 462, For Such An Opinion, The Excerpts Of Which Have Been Referred To By The Full Bench, Which Held As Under:-
'"The Question Referred For Decision To This Full Bench Is As Follows :
Whether, Having Regard To S.96, Penal Code, And S.105 Evidence Act, In A Case In Which Any General Exception In The Penal Code Is Pleaded By An Accused Person And Evidence Is Adduced To Support Such Plea, But Such Evidence Fails To Satisfy The Court Affirmatively Of The Existence Of Circumstances Bringing The Case Within The General Exception Pleaded, The Accused Person Is Entitled To Be Acquitted, If, Upon A Consideration Of The Evidence As A Whole (including The Evidence Given In Support Of The Plea Of The Said General Exception), A Reasonable Doubt Is Created In The Mind Of The Court Whether The Accused Person Is Or Is Not Entitled To The Benefit Of The Said Exception?
Section 96, Penal Code, Provides : "Nothing Is An Offence Which Is Done In The Exercise Of The Right Of Private Defence, "and S.105, Evidence Act Enacts That :
When A Person Is Accused Of Any Offence, The Burden Of Proving The Existence Of Circumstances Bringing The Case Within Any Of The General Exceptions In The Penal Code, Or Within Any Special Exception Or Proviso Contained In Any Other Part Of The Same Code, Or In Any Law Defining The Offence Is Upon Him, And The Court Shall Presume The Absence Of Such Circumstances.
The Question Referred Formed The Subject Of Consideration By A Full Bench Of The Rangoon High Court In 14 Rang 666, And It Was Held That Even If The Evidence Adduced By The Accused Fails To Prove The Existence Of Circumstances Bringing The Case Within The Exception Pleaded, The Accused Is Entitled To Be Acquitted If, Upon A Consideration Of The Evidence Both For The Prosecution And The Defence, The Court Is Left In A State Of Reasonable Doubt As To Whether The Accused Person Is Or Is Not Entitled To The Benefit Of The Exception Pleaded. The Full Bench Followed The Recent English Case In The House Of Lords In (1935) A C 462, And Held That Decision Was In No Way In Consistent With The Law In British India And The Principles Laid Down In That Decision Formed A Valuable Guide To The Correct Interpretation Of S.105, Indian Evidence Act. It Was Held In (1935) A C 462 That :
When Evidence Of Death And Malice Has Been Given, (this Is A Question For The Jury), The Prisoner Is Entitled To Show By Evidence Or By Examination Of The Circumstances Adduced By The Crown That The Act On His Part Which Caused Death Was Either Unintentional Or Provoked. If The Jury Are Either Satisfied With His Explanation Or, Upon A Review Of All The Evidence, Are Left In Reasonable Doubt Whether, Even If His Explanation Be Not Accepted, The Act Was Unintentional Or Provoked, The Prisoner Is Entitled To Be Acquitted.
Viscount Sankey L.C. In The Course Of His Judgement In (1935) A C 462 Is Reported To Have Observed As Follows :
Just As There Is Evidence On Behalf Of The Prosecution So There May Be Evidence On Behalf Of The Prisoner Which May Cause A Doubt As To His Guilt. In Either Case, He Is Entitled To The Benefit Of The Doubt. But While The Prosecution Must Prove The Guilt Of The Prisoner, There Is No Such Burden Laid On The Prisoner To Prove His Innocence And It Is Sufficient For Him To Raise A Doubt As To His Guilt; He Is Not Bound To Satisfy The Jury Of His Innocence ....... Throughout The Web Of The English Criminal Law One Golden Thread Is Always To Be Seen, That It Is The Duty Of The Prosecution To Prove The Prisoner's Guilt Subject To What I Have Already Said As To The Defence Of Insanity And Subject Also To Any Statutory Exception. If, At The End Of And On The Whole Of The Case, There Is Reasonable Doubt Created By The Evidence Given By Either The Prosecution Or The Prisoner, As To Whether The Prisoner Killed The Deceased With A Malicious Intention, The Prosecution Has Not Made Out The Case And The Prisoner Is Entitled To An Acquittal. No Matter What The Charge Or Where The Trial, The Principle That The Prosecution Must Prove The Guilt Of The Prisoner Is Part Of The Common Law Of England And No Attempt To Whittle It Down Can Be Entertained.
It Would Thus Appear That There Is Formidable Weight Of Authority In Support Of The View That In Cases Falling Within The Purview Of S.105, Evidence Act, The Evidence Produced By The Accused Person, Even Though Falling Short Of Proving Affirmatively The Existence Of Circumstances Bringing The Case Within The Exception Pleaded By Him, Can Be Utilized As Part Of The Entire Evidence In The Case For The Purpose Of Showing That A Reasonable Doubt Exists As To His Guilt. In View Of The Judicial Pronouncements Noted Above I Should, I Feel, In The Absence Of Cogent And Convincing Reasons, Hesitate To Take The Contrary View."
The Dictum Of Prabhu's Case(supra) Was Reconsidered By A Larger Bench Of This Court In Rishikesh Singh Vs. State Of U.P.: AIR 1970, Allahabad 51 Where Larger Bench Slightly Modified Earlier Opinion Without Disturbing The Golden Thread Which Runs Through All Criminal Trials In The Following Terms:-
"93. In This View Of The Matter The Dictum Laid Down In 1941 All LJ 619 AIR 1941 All 402 (FB) (Supra) Is Partly Erroneous And Requires Modification, Though The Decision, Read As A Whole Is In Conformity With The Law. The Dictum Can Be Modified As Below:-
In A Case In Which Any General Exception In The India Penal Code, Or Any Special Exception Or Proviso Contained In Another Part Of The Same Code,or In Any Law Defining The Offence, Is Pleaded Or Raised By An Accused Person And The Evidence Led In Support Of Such Plea, Judged By The Test Of The Preponderance Of Probability As In A Civil Proceeding Fails To Displace The Presumption Arising From Section 105 Of The Evidence Act, In Other Words, To Disprove The Absence Of Circumstances Bringing The Case Within The Said Exception; But Upon A Consideration Of The Evidence As A Whole, Including The Evidence Given In Support Of The Plea Based On The Said Exception Or Proviso, A Reasonable Doubt Is Created In The Mind Of The Court, As Regards One Or More Of The Ingredients Of The Offence The Accused Person, Shall Be Entitled To The Benefit Of The Reasonable Doubt As To His Guilt And Hence To Acquittal Of The Said Offence
. .......................
"162. The Answer Of The Majority Of Learned Judges Who Decided AIR 1941 All 402 (FB) Is Still Good Law. It Means That In A Case In Which, In Answer To A Prima Facie Prosecution Case, Any General Exception In The Indian Penal Code Is Pleaded By An Accused And Evidence Is Adduced To Support Such A Plea, But Such Evidence Fails To Satisfy The Court Affirmatively That The Accused Has Fully Established His Plea, He Will Still Be Entitled To An Acquittal, Provided That, After Weighing The Evidence As A Whole Prudently (including The Evidence Given In Support Of The Plea Of The Said General Exception), The Court Reaches The Conclusion That, As A Consequence Of The Doubt Arising About The Existence Of The Exception, The Prosecution Has Failed To Discharge Its Onus Of Proving The Guilt Of The Accused Beyond Reasonable Doubt.
..................
"176. In The Result We Answer The Question Referred To The Full Bench As Under :
The Dictum Of The Majority Of Learned Judges Of This Court In 1941 All LJ 619 AIR 1941 All 402 (FB) Is Still Good Law. But, It May Be Elucidated That In A Case In Which Any General Exception In The Indian Penal Code Is Pleaded By An Accused And Evidence Is Adduced To Support Such A Plea, But Such Evidence Fails To Satisfy The Court Affirmatively That The Accused Has Fully Established His Plea Of The Claimed Exception, He Will Still Be Entitled To An Acquittal, If, Upon A Consideration Of The Evidence As A Whole (including The Evidence Given In Support Of The Plea Of The Said General Exception), A Reasonable Consequential Doubt Is Created In The Mind Of The Court As To Whether The Accused Is Really Guilty Of The Offence With Which He Is Charged."
Later On In Vijai Singh And Others Vs. State Of U.P.: 1990 SCC (Criminal) 378 Apex Court Affirmed And Approved Above Views Of This Court And Has Been Pleased To Observe As Under:-
"A Careful Reading Of These Two Decisions Would Reveal That The Statement Of Law Therein Neither Expressly Nor Impliedly Overrules Or Is An Conflict With The Majority View In Parbhoo Case. However, In RishiKesh Singh V. State, The Question That Came Up For Consideration Before A Larger Bench Consisting Of Nine Judges Was Whether The Dictum In Parbhoo Case Is Still A Good Law On The Ground That Some Of The Decisions Of The Supreme Court Have Cast A Cloud Of Doubt. A Majority Of Seven Judges Approved The Principle Laid Down In Parbhoo Case. The Larger Bench Also Referred To Various Subsequent Decisions Of The Supreme Court Including The Nanavati Case, Bhikari V. State Of Uttar Pradesh And Dahyabhai Case, Beg, J. As He Then Was, In A Separate But Concurring Judgement After Referring To The Nanavati Case, Bhikari Case, Dahyabhai Case And Mohar Rai And Bharath Rai Case, Held That There Is No Conflict Between What Was Held By The Supreme Court And The Majority View Taken In Parbhoo Case. After Analysing The View Expressed By The Supreme Court In The Several Above Mentioned Decisions, Beg, J. Observed : (AIR Pp. 97-98, Paras 160-61)
"After A Close Scrutiny Of Every Part Of Each Of The Seven Opinions In Parbhoo Case, I Have Come To The Conclusion That The Majority Of Their Lordships Did Not Lay Down Anything Beyond Three Important Propositions Which, If Not Either Directly Or Indirectly Supported By Decisions Of Their Lordships Of The Supreme Court, Have Not Been Affected In The Slightest Degree By These Decisions. These Propositions Are: Firstly, That No Evidence Appearing In The Case To Support The Exception Pleaded By The Accused Can Be Excluded Altogether From Consideration On The Ground That The Accused Has Not Proved His Plea Fully; Secondly, That The Obligatory Presumption At The End Of Section 105 Is Necessarily Lifted At Least When There Is Enough Evidence On Record To Justify Giving The Benefit Of Doubt To The Accused On The Question Whether He Is Guilty Of The Offence With Which He Is Charged; And , Thirdly, If The Doubt, Though Raised Due To Evidence In Support Of The Exception Pleaded, Is Reasonable And Affects An Ingredient Of The Offence With Which The Accused Is Charged, The Accused Would Be Entitled To An Acquittal. As I Read The Answer Of The Majority In Parbhoo Case I Find It Based On These Three Propositions Which Provide The Ratio Decidenti And This Is All That Needs To Be Clarified."
"The Practical Result Of The Three Propositions Stated Above Is That An Accused's Plea Of An Exception May Reach One Of Three Not Sharply Demarcated Stages, One Succeeding The Other, Depending Upon The Effect Of The Whole Evidence In The Case Judged By The Standard Of A Prudent May Weighing Or Balancing Probabilities Carefully. These Stages Are : Firstly, A Lifting Of The Initial Obligatory Presumption Given At The End Of Section 105 Of The Act; Secondly, The Creation Of A Reasonable Doubt About The Existence Of An Ingredient Of The Offence; And Thirdly, A Complete Proof Of The Exception By "a Preponderance Of Probability', Which Covers Even A Slight Tilt Of The Balance Of Probability In Favour Of The Accused's Plea. The Accused Is Not Entitled To An Acquittal If His Plea Does Not Get Beyond The First Stage. At The Second Stage, He Becomes Entitled To Acquittal By Obtaining A Bare Benefit Of Doubt. At The Third Stage, He Is Undoubtedly Entitled To An Acquittal. This, In My Opinion, Is The Effect Of The Majority View In Parbhoo Case Which Directly Relates To First Two Stages Only. The Supreme Court Decisions Have Considered The Last Two Stages So Far, But The First Stage Has Not Yet Been Dealt With Directly Or Separately There In Any Case Brought To Our Notice.
Mathur, J. With Whom Five Judges Agreed, While Holding That Ratio Laid Down By The Majority In Parbhoo Case Is In Conformity With Law, However, Observed That The Reasoning In Support Of The Conclusions Is Erroneous. Beg, J. Was Not Prepared To Go To That Extent. The Majority Speaking Through Shri Mathur, J. Laid Down That The Dictum In Parbhoo Case Which Is Till A Good Law, Can, However, Be Modified As Follows: (AIR P.79, Para 93)
"In A Case In Which Any General Exception In The India Penal Code, Or Any Special Exception Or Proviso Contained In Another Part Of The Same Code,or In Any Law Defining The Offence, Is Pleaded Or Raised By An Accused Person And The Evidence Led In Support Of Such Plea Judged By The Test Of The Preponderance Of Probability As In A Civil Proceeding Fails To Displace The Presumption Arising From Section 105 Of The Evidence Act, In Other Words, To Disprove The Absence Or Circumstances Bringing The Case Within The Said Exception; But Upon A Consideration Of The Evidence As A Whole, Including The Evidence Given In Support Of The Plea Based On The Said Exception Or Proviso, A Reasonable Doubt Is Created In The Mind Of The Court, As Regards One Or More Of The Ingredients Of The Offence, The Accused Person, Shall Be Entitled To The Benefit Of The Reasonable Doubt As To His Guilt And Hence To Acquittal Of The Said Offence. "
Recently, The Aforesaid Legal Aspect Was Dealt With By The Apex Court In Darshan Singh Vs. State Of Punjab:2010( 68) ACC 709 Wherein Apex Court Has Been Pleased To Observe As Under:-
"58. The Following Principles Emerge On Scrutiny Of The Following Judgements:
(i) Self-preservation Is The Basic Human Instinct And Is Duly Recognized By The Criminal Jurisprudence Of All Civilized Countries. All Free, Democratic And Civilized Countries Recognize The Right Of Private Defence Within Certain Reasonable Limits.
(ii) The Right Of Private Defence Is Available Only To One Who Is Suddenly Confronted With The Necessity Of Averting An Impending Danger And Not Of Self-creation.
(iii) A Mere Reasonable Apprehension Is Enough To Put The Right Of Self Defence Into Operation. In Other Words, It Is Not Necessary That There Should Be An Actual Commission Of The Offence In Order To Give Rise To The Right Of Private Defence. It Is Enough If The Accused Apprehended That Such An Offence Is Contemplated And It Is Likely To Be Committed If The Right Of Private Defence Is Not Exercised.
(iv) The Right Of Private Defence Commences As Soon As A Reasonable Apprehension Arises And It Is Co-terminus With The Duration Of Such Apprehension.
(v) It Is Unrealistic To Expect A Person Under Assault To Modulate His Defence Step By Step With Any Arithmetical Exactitude.
(vi) In Private Defence The Force Used By The Accused Ought Not To Be Wholly Disproportionate Or Much Greater Than Necessary For Protection Of The Person Or Property.
(vii) It Is Well Settled That Even If The Accused Does Not Plead Self Defence, It Is Open To Consider Such A Plea If The Same Arises From The Material On Record.
(viii) The Accused Need Not Prove The Existence Of The Right Of Private Defence Beyond Reasonable Doubt.
(ix) The Indian Penal Code Confers The Right Of Private Defence Only When That Unlawful Or Wrongful Act Is An Offence.
(x) A Person Who Is In Imminent And Reasonable Danger Of Losing His Life Or Limb May In Exercise Of Self Defence Inflict Any Harm Even Extending To Death On His Assailant Either When The Assault Is Attempted Or Directly Threatened."
From The Above Succinct-exposition Of Law, Which Are Binding Precedents, There Remains No Doubt That So Far As An Accused Is Concerned, He Has Only To Bring His Case Within The Fold Of Preponderance Of Probabilities To Succeed Unlike Prosecution Who Has To Establish It's Case To The Hilt Clearing All Doubtful Prognosises.
Another Important Aspect Of The Appeal, Which Requires To Be Dealt With At This Juncture Is That If, Prosecution Fails To Explain Injuries Sustained By An Accused In The Same Incident, Which Are Not Superficial And Cannot Be Manufactured Or Self-suffered Then What Will Be It's Effect? This Aspect Of The Matter No Longer Remains Res Integra As It Has Been Concluded By Numerous Apex Court Decisions Having Binding Effects. To Star With Magna Carta Decision On The Said Aspect It Was Held By The Apex Court In The Case Of Lakshmi Singh Versus State Of Bihar : AIR 1976 SC 2263 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 Earliercase, 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."
The Above View By The Apex Court Still Holds Water And Has Been Applied Approved And Affirmed In Subsequent Decisions Wherever It Applied Viz, State Of Rajasthan V. Madho And Anr.:1991 Suppl. (2) SCC 396; State Of Bihar V. Mohammad Khursheed:1971 (3) SCC 423.
Revisiting Facts Of Instant Appeal And Applying The Aforesaid Legal Principles, It Is Perceptibly Clear That Neither In The FIR Ext. Ka-1, Nor During Investigatory Statements Recorded Under Section 161 Cr.P.C., The Three P.Ws., Who Are Mother, Son And Nephew Have Not Stated Any Thing Regarding Injury Sustained By Accused Sant Ram. They Suppressed Said Fact. Perusal Of The Injury Report Of Deceased Accused Sant Ram, Vide Ext. Kha-3 Indicate That The Injuries Suffered By Him Cannot Be Self Inflicted Or Manufactured. Even According To The Prosecution Witnesses Wife Of Informant Had Caused Those Injuries During The Incident. In Such A View, It Was Required Of The Prosecution To Explain How And In What Manner Sant Ram Sustained Those Injuries. As Recorded Above, Prosecution Had Concealed It From The I.O. But During Trial To Embellish It's Version Witnesses Testified That Wife Of Informant Caused Those Injuries By Terracotta Roof Tiles, Which Obviously Is A False Explanation For The Reason That In A Scuffled Where Family Members Are Involved No Lady Will Take The Risk Of Throwing Roof Tiles As It May Injured Her Relatives. Thus Explanation Offered By The Prosecution Regarding Injury Of The One Of The Accused Does Not Inspire Any Confidence. In Any View A Doubt Is Created In Court's Mind Regarding Genesis Of The Incident Which Seems To Be Shrouded In Mystery. A Belated After Thought Explanation During Trial, Without Convincing Explanation Forthcoming For Not Divulging It At The Earliest Opportunity By The Prosecution Side Should Be Discorded And Eschewed From Consideration As It Is Required Of The Courts To Separate The Grain From The Chaff And From The Prosecution To Prove The Guilt To The Accused To The Hilt. Injuries Of Sant Ram Is Referred To Below:-
"1. Lacerated Wound 5cm X .5cm X .5cm On The Back Of The Scalp Right Side Over Parital Bone. Blood Clot Present.
2. Bruise 13cm X 1cm On The Back Crossing Vertebral Column, Bluish Red In Colour.
Duration:- About 1/2 Day.
All The Injuries Are Simple Caused By Blunt Object."
Further It Is Admitted Case By The Prosecution That Sant Ram Was Present At The Police Station When The Prosecution Side Had Gone To Lodge His FIR. According To The Defence Case, FIR Of Sant Ram Was Not Taken Down By The I.O. And Instead FIR Of His Mother Vide Kha-1 And Kha-2 Was Recorded Next Day In The Morning On The Basis Of Which Informant And Deceased Were Arrested. Why Then They Did Not Inform I.O. At That Point Of Time That Injury To Sant Ram Was In Exercise Of Right Of Private Defence. It Was For Causing Those Injuries To Sant Ram That Informant And Deceased Went To Jail And Ultimately Deceased Lost His Life. Conspicuous Silence Of Wife And Son In The Background Of These Facts Makes Them Unreliable And Untrustworthy Witnesses. There Is No Denying Of Fact That Sant Ram Did Sustain Injury During The Course Of The Same Incident In Which The Prosecution Side Also Sustained Injury. Ipse Dixit By The Two Interested, Related, Inimical And Partisan Prosecution Witnesses Without Independent Corroboration, Therefore Does Not Inspire Any Confidence. These Were The Statements, Which For The First Time Were Stated In Trial And, Therefore, Is An Embellishment Only For The Purposes To Wriggle Out From The Law Laid Down By The Apex Court As Well As By This Court That If The Prosecution Fails To Explain Injuries Sustained By The Accused Then Either The Prosecution Story Is Not Correct Or The Prosecution Witnesses Are Not Telling The Truth And Hence Are Not Wholly Reliable And Truthful. At This Point It Is To Be Noted That Opinion Of The Trial Judge On This Aspect Of The Matter Is Faulty And Against The Law Laid Down By The Apex Court. Trial Judge Mis Directed Herself And Applied Binding Precedents Incorrectly By Observing That Accused Failed To Establish His Defence To The Hilt And There Is No Concrete Proof Of Their Defence Plea. Defence FIR And Injury Report Filed And Duly Exhibited As Defence Ext. Kha-1 To Kha3 Were The Documentary Proof Of The Aforesaid Fact Corroborating Accused Statement Under Section 313 Cr.P.C And Infact With Tongue In Cheek Were Admitted To Be Correct By The Prosecution Witnesses And Hence Entire Approach By The Trial Judge In Analysing Defence Evidence On Record Is Otherwise. Once Prosecution Admitted Causing Of Injuries To Accused Sant Ram And It Also Admitted That In Cross Version Informant And Deceased Were Arrested And Lodged In Jail, What Was Required Of The Trial Judge Was To Critically Appreciate Prosecution Evidences For It's Acceptability Or Negation, Which It Did Not Do. On Preponderance Of Probability Defence Exhibits Were Sufficient To Demolish Edifice Of The Prosecution Version As Admittedly Injuries Of Sant Ram Were Neither Superficial Nor Self Suffered. Observation By The Trial Judge Is Against These Defence Exhibits And Therefore Cannot Be Countenanced.
In Above Connection Another Opinion By The Trial Judge That Injury Report Of The Sant Ram By Itself Is Not Sufficient To Discard Prosecution Version Is Also Not Acceptable Because Right Of Private Defence Of An Accused, If Established On Preponderance Of Probability Is Sufficient To Through Over Board Entire Prosecution Version. This Is Clear From The Above Referred Decisions Of The Apex Court, Which Has Got A Binding Effect On This Court.
Turning To Another Important Aspect Of The Case It Is Evident That Although The Incident Occurred In The Midst Of The Hamlet Of Appellants And Informant Village Yet No Independent Witness Came Forward To Support Prosecution Version. Moreover Perusal Of FIR Ext. Ka-1 Indicates That The Same Was Not Written By The Informant. It Also Does Not Appeal To Reason That Wife Smt. Sundari P.W. 2, Watched Assault On Her Husband Like A Silent Spectator And Did Not Intervene To Save His Life. Another Unsatisfactory Feature Of Prosecution Story Is That Prosecution Has Withheld Wife Of Informant From Entering Into The Witness Box To Corroborate Prosecution Version Of Her Making Assault On The Accused. It Was She, Who Had Caused Injury To Sant Ram. She Would Have Been The Best Witness To Testify The Aforesaid Fact But For The Reasons Best Known To The Prosecution, She Was Withheld.
Slightly Digressing, Contention Of Learned Amicus Curiae That There Was No Unlawful Assembly To Commit Murder Of The Deceased And Therefore, Conviction With The Aid Of Section 149 I.P.C. Is Not Sustainable Is An Argument, Which Seems To Have Been Raised Only To Be Repelled. From The Prosecution Allegations An Unlawful Assembly Was In Existence From The Very Beginning And This Fact Can Very Well Be Perceived From The Sequence Of Events That Seven Or Eight Accused Persons Joined Together Armed With Blunt Objects, Trespassed Into The House Of The Informant And Assaulted Inmates. They Resiled From The Scene Of The Incident Together. There Is No Doubt In The Mind Of This Court That There Was An Unlawful Assembly In Existence From The Very Beginning And Therefore, Learned Amicus Curiae's Submission In Respect Of Non Applicability Of Section147/149 IPC Is Hereby Repelled.
Another Disturbing Feature Of The Prosecution Case Is That In Examination Under Section 313 Cr.P.C. No Question Was Put To The Accused That During The Course Of The Incident, Sant Ram Was Assaulted By The Wife Of The Informant. If The Prosecution Wanted To Rely On The Said Explanation It Should Have Afforded An Opportunity To The Accused Appellant To Explain. Since That Having Not Been Done Mere Ipse Dixit By The Three Fact Witnesses In That Respect Does Not Appeal To Reason. This Non Questioning Definitely Prejudiced Accused Case As The Same Was Never Prosecution Case Prior To Testimony Of Witnesses During Sessions Trial. In This Regard Reliance Can Be Had From Following Apex Court Decisions.
In Ajay Singh Versus State Of Maharastra: AIR 2007 SC 2188it Has Been Held By The Apex Court As Under:-
"11. The Object Of Examination Under This Section Is To Give The Accused An Opportunity To Explain The Case Made Against Him. This Statement Can Be Taken Into Consideration In Judging His Innocence Or Guilt. Where There Is An Onus On The Accused To Discharge, It Depends On The Facts And Circumstances Of The Case If Such Statement Discharges The Onus.
12. The Word 'generally' In Sub-section (1)(b) Does Not Limit The Nature Of The Questioning To One Or More Questions Of A General Nature Relating To The Case, But It Means That The Question Should Relate To The Whole Case Generally And Should Also Be Limited To Any Particular Part Or Parts Of It. The Question Must Be Framed In Such A Way As To Enable The Accused To Know What He Is To Explain, What Are The Circumstances Which Are Against Him And For Which An Explanation Is Needed. The Whole Object Of The Section Is To Afford The Accused A Fair And Proper Opportunity Of Explaining Circumstances Which Appear Against Him And That The Questions Must Be Fair And Must Be Couched In A Form Which An Ignorant Or Illiterate Person Will Be Able To Appreciate And Understand. A Conviction Based On The Accused's Failure To Explain What He Was Never Asked To Explain Is Bad In Law. The Whole Object Of Enacting Section 313 Of The Code Was That The Attention Of The Accused Should Be Drawn To The Specific Points In The Charge And In The Evidence On Which The Prosecution Claims That The Case Is Made Out Against The Accused So That He May Be Able To Give Such Explanation As He Desires To Give.
13. The Importance Of Observing Faithfully And Fairly The Provisions Of Section313 Of The Code Cannot Be Too Strongly Stressed. It Is Not Sufficient Compliance To String Together A Long Series Of Facts And Ask The Accused What He Has To Say About Them. He Must Be Questioned Separately About Each Material Substance Which Is Intended To Be Used Against Him. The Questionings Must Be Fair And Couched In A Form Which An Ignorant Or Illiterate Person Will Be Able To Appreciate And Understand. Even When An Accused Is Not Illiterate, His Mind Is Apt To Be Perturbed When He Is Facing A Charge Of Murder. Fairness, Therefore, Requires That Each Material Circumstance Should Be Put Simply And Separately In A Way That An Illiterate Mind, Or One Which Is Perturbed Or Confused, Can Readily Appreciate And Understand.
14. Above Being The Position, The Inevitable Conclusion Is That The Prosecution Has Failed To Establish The Accusations. The Conviction Is Set Aside. The Appeal Is Allowed. The Appellant Be Set At Liberty Forthwith If Not Required In Any Other Case."
In Vikramjit Singh Versus State Of Punjab: 2007 CrL.J. 1000 Apex Court Held As Under:-
"22. It Is Now A Well-settled Principle Of Law That The Circumstances Which According To The Prosecution Lead To Proof Of The Guilt Against The Accused Must Be Put To Him In His Examination Under Section 313 Of The Code Of Criminal Procedure. It Was Not Done.
23. In Tara Singh V. The State [AIR 1951 SC 441], The Law Is Stated In The Following Terms:-
"The High Court Also Bases Its Conclusion On The Circumstantial Evidence Arising From The Production Of The Kripan And The Recovery Of The Shirt From The Appellant. Those Articles Are Said To Be Stained With Human Blood. The Appellant Was Not Asked To Give Any Explanation About This. The Serologists Report Had Not Been Received When The Appellant Was Questioned By The Committing Magistrate. Therefore, He Could Not Be Asked To Explain The Presence Of Human Bloodstains On The Kripan. All He Was Asked Was Whether The Bloodstained Kripan Was Recovered At His Instance. That Is Not Enough. He Should Also Have Been Asked Whether He Could Explain The Presence Of Bloodstains On It. The Two Are Not The Same. Then, In The Sessions Court There Was The Additional Evidence Of The Imperial Serologist Showing That The Kripan Had Stains Of Human Blood On It. That Was An Additional And Very Vital Piece Of Evidence Which The Appellant Should Have Been Afforded An Opportunity Of Explaining."

Above Was One Of The Reasons For The Apex Court To Acquit The Accused.
Concluding The Discussion, In My Opinion Prosecution Has Failed To Substantiate The Charge Against The Sole Surviving Appellant Sri Ram And Hence His Appeal Is Hereby Allowed And His Conviction And Sentence By Order Dated 20.8.81 Through Impugned Judgement And Order Recorded By Xth Additional Sessions Judge, Etah In S.T. No.689of 1978, State Vs. Pokhpal And Others Is Hereby Set Aside. He Is Acquitted Of All The Charges Against Him. Appellant Sri Ram Is On Bail. He Need Not Surrender. His Bail Bonds And Surety Bonds Are Discharged.
Let A Copy Of This Judgement Be Certified To The Trial Court For It's Intimation.

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