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CASE NO.: Appeal (crl.)  654 of 2006

PETITIONER: Babu Ram & Ors

RESPONDENT: State of Punjab

DATE OF JUDGMENT: 15/02/2008

BENCH: P. P. Naolekar & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 654 OF 2006

Lokeshwar Singh Panta, J.

1.      The appellants have filed this appeal against the  Judgment and Order dated August 03, 2005 passed by a  Division Bench of the Punjab and Haryana High Court at  Chandigarh, confirming the conviction and sentence in respect  of the offence punishable under Section 302 of the Indian  Penal Code (for short the ’IPC’) and a fine of Rs.2000/- with a  default clause to undergo R.I. for six months awarded to Suraj  Dev and imposing punishment of life imprisonment upon  appellants Babu Ram and Indraj under Section 302 read with  Section 34 of IPC and to pay a fine of Rs.2000/- each, in  default of payment of fine to further suffer R.I. for six months  each in Sessions Case No. 83 of 1993 / Sessions Trial No.10 of  1997.

2.      Briefly put, the facts may be summarized as follows:         On 03.03.1993 at about 7.30 PM, the complainant Sohan  Lal (PW-2) on hearing some noise coming from the street near  the house of Ram Pratap (PW-3) came out of his house with a  torch in his hand.  PWs.2 and 3 saw that Babu Ram (A-1) and  Indraj (A-2) had caught hold of Ant Ram while Suraj Dev (A-3)  gave a blow with a ’Rambi’ (an instrument for cutting leather  by a cobbler) on the chest of Ant Ram.  On receipt of the said  blow, Ant Ram fell down.  PWs-2 and 3 raised an alarm which  attracted many other persons on the spot.  Ant Ram was taken  to the Civil Hospital, Abohar, by PW-2 and PW-3 where he was  declared dead.  A ruqqa was sent to Police Station regarding  receipt of the dead body of Ant Ram.  A.S.I. Hardev Singh (PW- 5) came to the hospital and recorded statement of PW-2 Sohan  Lal.  On the basis of the said statement, formal FIR Ex.PH/1  came to be registered at the Police Station.  The Investigating  Officer started investigation and prepared an inquest report.   He recorded the statement of PW-3 Ram Pratap on the  following day of the incident.  He went to the place of  occurrence and lifted the blood-stained earth and prepared a  site plan.

3.      On 08.03.1993, Indraj (A-2) was discharged from hospital  and was arrested by the Investigating Officer and thereafter  investigation of the case was taken over by S.I. Jagdev Singh.   On 10.03.1993, S.I. Jagdev Singh accompanied by A.S.I.  Hardev Singh (PW-5) went to Village Kikker Khera, where Ram

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Pratap, Ex-Sarpanch, produced Babu Ram (A-1) and Suraj  Dev (A-3) who, later on, were arrested.  It was further case of  the prosecution that on 12.03.1993, pursuant to the  disclosure statement Ex.PK made by A-3, the Police recovered  one blood-stained ’Rambi’ concealed in an iron box meant for  keeping clothes from his house.  ’Rambi’ (Ex.P1) was taken  into possession through Memo (Ex.PK/2).  On completion of  the investigation, charge sheet was presented against the  appellants A-1, A-2 and A-3 in the Court of Illaqa Magistrate,  who committed the same to the Court of Sessions.  The  learned Sessions Judge, Ferozpur, charge-sheeted A-3 Suraj  Dev under Section 302 IPC, while   A-1 Babu Ram and A-2  Indraj were charged under Section 302 read with Section 34 of  the IPC.  The appellants pleaded not guilty to the offence and  claimed to be tried.    4.      In support of its case, the prosecution examined Dr.Lal  Chand Thakral as PW-1, Sohan Lal as PW-2, Ram Pratap as  PW-3, Het Ram as PW-4 and A.S.I. Hardev Singh as PW-5.  In  their statements recorded under Section 313 of the Code of  Criminal Procedure, the appellants Babu Ram (A-1) pleaded as  under:- "I am innocent.  I have love affairs with Kant  daughter of Sohan Lal.  I have produced letters  Mark D.1 to D.8 which are in her own hand- writing and I have been falsely involved due to  this reason."

Indraj (A-2) pleaded as under:- "I was preparing shoes by cutting leather with the  Rambi.  Ant Ram came there and started abusing  me for not supporting Sohan Lal.  We exchanged  abuses and a quarrel started.  In the meanwhile,  my wife also came there.  Ant Ram had a Kapa  with him.  He gave blows to me and my wife with  Kapa from its sharp and blunt side.  In order to  defend me and my wife, I gave a Rambi blow to  him.  Police helped the deceased party as brother  of Ant Ram, i.e. Main Pal is working in the Police  Department.  Babu Ram and my son Suraj Dev  have been falsely implicated.  Eye-witnesses  Sohan Lal and Ram Pratap are made up  witnesses."

5.    A-3 Suraj Dev pleaded that he is innocent and has been  falsely implicated in the case being the son of A-2 Indraj.  In  their defence, the appellants have examined Dr. Prithvi Raj  (DW-1), who medico legally examined A-2 Indraj and also his  injured wife Smt. Maya. Dr. R.K. Arora (DW-2) radiologically  examined Smt. Maya (DW-3).

6.      The Trial Court, on appreciation of the evidence, held the  appellants guilty of the murder of Ant Ram and, accordingly,  convicted and sentenced them as aforesaid.

7.      The appellants preferred an appeal under Section 374 (2)  of the Cr.P.C. before the High Court, whereas PW-2 Sohan Lal  filed Criminal Revision No.306 of 1997 claiming compensation  to the heirs of the deceased.  The High court, as stated above,  confirmed the conviction and sentence imposed upon the  appellants, but dismissed the Criminal Revision of the  complainant.

8.      The appellants are, thus, before us by Special Leave to  Appeal.

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9.      Mr. K.B. Sinha, learned counsel for the appellants,  assailed the judgment of the High Court inter alia on two  following grounds:- (a)     that the genesis of the occurrence is shrouded in  mystery and the prosecution has failed to explain the  injuries on the person of the appellant-Indraj and his  wife DW-3 Smt. Maya, therefore, the conviction of the  appellants suffers from infirmity and perversity; (b)     that the injury, which was found fatal to the deceased  Ant Ram, was caused by the appellant-Indraj in his  self-defence and also to protect the body of his wife  Smt. Maya from further assault by the deceased.   Thus, the appellants are entitled to the benefit of  doubt.

10.       Learned counsel for the respondent\026State, on the other  hand, submitted that the reasons given by the Trial Court as  well as by the High Court regarding the order of conviction of  the appellants are based upon proper appreciation of the  evidence led by the prosecution in the case.  According to him,  the evidence of PW-2 and PW-3, the eye-witnesses of the  incident, is cogent and satisfactory with the hypothesis of the  guilt of the accused and the accused had no right of private  defence to cause the grievous injury on the vital part of the  body of the deceased with sharp edged weapon and, therefore,  the plea of the right of private defence of accused Indraj is not  tenable and acceptable.   

11.     Before adverting to the arguments advanced by the  learned counsel, we shall, at the threshold, point out that the  incident, which resulted in the death of Ant Ram, is not in  dispute.  We have reappraised and scrutinized the evidence of  the eye-witnesses as well as medical evidence of PW-1 Dr. Lal  Chand Thakral who, at the relevant time, was posted as  Medical Officer, Civil Hospital, Abohar.  Dr. Lal Chand Thakral  conducted the post-mortem on the dead body of Ant Ram on  04.03.1993 at 11.00 a.m. and found the following injuries on  his body: 1.      A stab incised wound 2.5 cm X 1.5 cm present  on the front of the chest on left side 4.5 cm below,  the overlying shirt and vest.

2.      On probing, the direction of wound was  downwards medically and upwards.  On dissection  clotted blood was present in underlying tissues, 5th  rib was cut.  On further dissection the pericardium  was out and left ventricle arterially was cut.  There  was about 700 CC of blood was present on the left  side of the chest cavity.  Heart was empty.  The  injury was ante-mortem in nature.

12.       In the opinion of the Doctor, the cause of death of Ant  Ram was hemorrhage, shock and injury to heart which was  sufficient to cause death in due course of events.

13.      PW-2 Sohan Lal and PW-3 Ram Pratap, the alleged eye-  witnesses of the occurrence, are interested witnesses.  They  are brother and nephew respectively of the deceased.  The  prosecution has not examined any other witness in support of  its case though it has come in the evidence of PW-3 Ram  Pratap that large number of persons including Chunni,  Banwari and Chhotu were present at the scene of occurrence,  who witnessed the incident.  The defence of the accused Indraj  corroborated by the evidence of his wife DW-3 appears to be

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more plausible than the rival version of the evidence of PWs-2  and 3.   

14.      DW-1 Dr. Prithvi Raj was BMO posted at Civil Hospital,  Abohar, at the relevant time.  He medico-legally examined the  accused-Indraj on 03.03.1993 at 10.45 p.m. in the hospital  and found the following injuries on his person: "1. There was an incised wound 2 x 0.5  cm bone deep sent on arteries lateral  aspect of left forearm, just above the wrist  joint.  Fresh bleeding was present.  X-ray  was advised.

2. There was an incised wound 2 x 0.5  cm bone deep present on back right  forearm 5 cm below electron on process.   Fresh bleeding was present.  X-ray was  advised.

3. There was an unscabbed abrasion 1 x  1 cm over bridge of nose.  X-ray was  advised.

4. There was an abrasion 1.5 x 1 cm on  right side of face below right eye adjacent  to nose.

5. There was an abrasion 3 x 1cm on  back of right forearm on its upper part, 3  cm below injury no.2.

6. There was an abrasion 1.5 x 1 cm on  lateral side of right forearm on its lower  part.

7. There was an abrasion 4 x 3 cm on  front of left knee.  Injuries No.1, 2 and 3  were kept under observation and the  remaining injuries were declared as  simple.  The probable duration of the  injuries was within six hours.  Injuries  No.1 and 2 were caused by sharp edged  weapon while the remaining was caused  by blunt weapon.  I have brought the  original MLR today in the court.  Exh.D is  the certified copy of the MLR of Indraj  and Exh.DA/1 is the pictorial diagram  showing the seat of injuries."

As per the opinion of Dr. Prithvi Raj, the above said injuries on  the person of accused Indraj were found simple in nature after  X-ray examination.

15.      On the same day, Dr. Prithvi Raj medico-legally  examined DW-3 Smt. Maya, wife of the accused Indraj, and he  found following injuries on her person:- 1.      There was a reddish contusion 2 x  1.5 cm with underlying swelling 5 x 3 cm  on dorsum of right hand on medical side.   X-ray was advised.

2.      There was a reddish contusion 6 x  1.5 cm on lateral side of right arm on its  middle.

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3.      There was an abrasion 3 x 2 cm on  medical side of the left forearm on its  upper part.

In the opinion of the Doctor, Injury Nos. 2 and 3 were found  simple in nature, whereas Injury No.1 was declared grievous  in nature caused by blunt weapon within the duration of six  hours.

16.    DW-2 Mr. R.K. Arora was S.M.O., Civil Hospital, Abohar,  at the relevant time.  Dr. Arora conducted X-ray examination  of Smt. Maya on 04.03.1993 and found fracture of the base of  proximal phalyn of right little finger.

17.     DW-3 Smt. Maya stated in her deposition that on the day  of occurrence her husband Indraj was cutting leather for  making shoes with a ’Rambi’ when Ant Ram came in front of  their house and without any cause he started abusing her  husband.  Ant Ram was armed with ’Kapa’ with which he gave  6-7 blows to her husband from sharp and blunt side of the  weapon.  She tried to save her husband from further assault,  but Ant Ram inflicted grievous injuries on her arms with  ’Kapa’.  She stated that her husband Indraj was carrying a  ’Rambi’ in his hand with which he inflicted injury to Ant Ram  to save himself as well as her body.  She further stated that  she went to the hospital along with her injured husband where  Doctor medically examined them.  She narrated the entire  incident to the police, but the police did not listen to her  version as the nephew of the deceased is posted as a  Constable in the Police Department.  Despite searching  lengthy cross-examination, the prosecution has failed to elicit  any material to shatter and discredit her testimony.  She  categorically denied the suggestion of the prosecution that the  occurrence had taken place in the street in front of the house  of PW-3 Ram Pratap.  Further suggestion that all the three  accused persons committed murder of Ant Ram was  categorically denied by her.  The plea of the prosecution that  she and her husband Indraj were given slaps and fist blows by  the general public, who collected at the scene of the  occurrence, has been specifically denied by her.  Dr. Prithvi  Raj has categorically opined that the injuries on the person of  accused Indraj and his wife Smt. Maya could be caused by  sharp and blunt weapon and not by slaps and fist blows.

18.     It is a well-settled law 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

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prosecution case. [See Lakshmi Singh v.  State of Bihar; AIR 1976 SC 2263]

19.       Further, it is important to point out that 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.

20.       In the present case, the prosecution has not explained  the injuries on the person of the accused Indraj and his wife  Smt. Maya Devi.  It has come in the evidence of PW-5 S.I.  Hardev Singh, the Investigating Officer, that the accused  Indraj was admitted in the hospital and he was arrested on  08.03.1993 after discharge from the hospital.  The  Investigating Officer has also collected the MLRs of the  accused Indraj and his wife Maya on the intervening night of  03rd/04th March 1993 at about 12.30 a.m.  The occurrence  had taken place on 03.03.1993 at about 7.30 p.m. as per the  prosecution version itself.  The evidence of Dr. Prithvi Raj  would show that the duration of the injuries suffered by the  accused Indraj and his wife Smt. Maya was within duration of  six hours.  The evidence of DW-Smt. Maya, corroborated by  the medical evidence of Dr. Prithvi Raj, is more probable,  satisfactory and convincing than the evidence of PWs. 2 and 3  who are interested witnesses and who have not given true  genesis and origin of the occurrence in their testimony.  Thus,  non-explanation of the injuries on the person of the accused  Indraj and his wife Smt. Maya supports the version of the  defence that the accused Indraj inflicted single blow with  ’Rambi’ on the person of Ant Ram in private defence of his  body and also the person of his wife who had suffered several  injuries at the hands of Ant Ram with a weapon called ’Kapa’,  though the injury received by the deceased Ant Ram was  turned out to be fatal in nature but it was not inflicted by the  accused with the intention of causing death of the deceased or  with the intention or knowledge that the injury would, in all  probability, cause his death.

21.       We do not agree with the courts below that the accused  Indraj had no right of private defence to his body or to the  person of his wife.  It is established on record by DW-3 that  Ant Ram came in front of their house and for no cause he  started abusing her husband.  Ant Ram gave 6-7 blows to her  husband with sharp as well as blunt side of ’Kapa’ which he  was holding in his hand.  Ant Ram also inflicted injuries on  the arms of DW-Maya and it was at that time and in that  process that ’Rambi’ blow was given to Ant Ram by her  husband to save himself and his wife from further blows.  A  ’Kapa’ is capable of causing simple as well as fatal injuries to  the accused Indraj and his wife Smt. Maya.  We are of the view  that in such a situation the accused Indraj could necessarily  apprehend danger to his life and to the life of his wife at the  hand of Ant Ram and in that process if one blow was inflicted  by the accused on the person of Ant Ram which has proved  fatal, the accused had the right of private defence to his body  as well as to the person of his wife Smt. Maya.  The injuries on  the person of the accused Indraj were simple in nature,  whereas one injury found on the person of his wife Smt. Maya  by the Doctor was grievous in nature.  The evidence of DW-3,  corroborated by the medical evidence, is so clear and cogent,  so independent and disinterested, so probable, consistent and  credit-worthy that it has to be relied upon and accepted vis-‘- vis the evidence of the prosecution.

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22.       Having given our careful consideration to the  submissions made by the learned counsel for the parties and  in the light of the evidence and in the background of the well- settled proposition of law and in view of the improbabilities,  the serious omissions and infirmities, the interested nature of  the evidence and other circumstances, it was clear that the  prosecution has failed to prove the case against the appellants  beyond reasonable doubt.  The High Court was in error in  brushing aside serious infirmity in the prosecution case  regarding non-explanation of the injuries sustained by the  accused Indraj and his wife DW-Smt. Maya and also not  accepting the plea of the right of defence of the accused on  unconvincing premises.

23.       For the reasons given above, we allow the appeal, set  aside the conviction of the appellants-Babu Ram and Indraj  under Section 302 read with Section 34 of the IPC and Suraj  Dev under Section 302 of the IPC.  The appellants are,  accordingly, acquitted.   

24.       Appellants-Babu Ram, Indraj and Suraj Dev, who are  presently in jail, shall be set free forthwith if they are not  required in any other case.  Fine imposed by the Trial court, if  realized from the appellants, shall be paid back to them.