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CASE NO.: Appeal (crl.)  1245 of 1999

PETITIONER: BALWAN SINGH

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT: 27/04/2005

BENCH: B.P. SINGH & ARUN KUMAR

JUDGMENT: J U D G M E N T

B.P.Singh,J.           The sole appellant before us Balwan Singh has been sentenced to undergo life  imprisonment under Section 302 IPC  and to six months imprisonment under Section 323/34 IPC  by judgment and order of the High Court of Punjab & Haryana at Chandigarh in Criminal  Appeal No.314-D of 1997 dated 20th August, 1998.   The appellant A-1 along with Jai Singh A- 2,  Inder Singh A3 and Rakesh A-4 were put up for trial.  The Sessions Judge, Sonepat by judgmen t  and order dated 21/22 March, 1997 acquitted A4 Rakesh but found remaining accused guilty of  the offences under Sections 302/34 and 323/34 IPC.   The High Court in appeal affirmed the  conviction of the appellant herein under Sections 302 and 323/34 IPC but acquitted  A2 and A 3  of the charge under Section 302/34 IPC and convicted them instead under Section 323 IPC for  causing simple injuries to some of the witnesses.   A2 was sentenced to undergo rigorous  imprisonment for six months and A3 was released on probation.   Therefore, the said A2 and A 3  have not preferred appeals before this Court. A special leave petition has been preferred by the State of Haryana against the acquittal of  A2  and A3 of the charges under Section 302/34 IPC.         The case of the prosecution is that on the 23rd May, 1992 PW5 Virender Singh, son  of the deceased Ram Chander, a resident of village Nadipur Majra had gone to attend the  marriage of a friend in village Juan.   The barat party had left for village Juan at about 6 .00  A.M.    A1 and A2 who are brothers also went to attend the same marriage on their motor cycl e.   He requested Balwan A1 to take the bridegroom on his motor cycle to the Chaupal of the villa ge  for the vidai ceremony.   This infuriated A2 Jai Singh and it is alleged that he slapped PW5   which was followed by an altercation.   While returning to their village A1 and A2 threatene d  PW5 and told him that they will teach him and his father a lesson after they returned to the ir  village. The further case of the prosecution is that at about 7/7.30 P.M.when PW5 was going to his ho use  in the village, he saw that A1 to A4 were giving injuries on the person of his father Ram Ch ander  (deceased).   They were armed with Jailis and lathis and were inflicting injuries on his fat her in  front of the house of Chander Bhan Mahajan, a co-villager.  He also noticed that his mother  Omwati PW7, wife of the deceased, and Tek Ram PW8, a neighbour had come to the rescue of  his father.  He also rushed to the rescue of his father but when he was trying to do so, A1  aimed  Jaili blow at him which injured him on his right shoulder while A3 struck him on his left ey

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e and  the right shoulder.  A4 aimed a Jaili blow at him which injured the wrist of his left hand.   Tek  Ram PW8 was also given a blow on his head by A2.  When they raised alarm, all the accused ra n  away.   The further case of the prosecution is that injured Ram Chander was removed to the c ivil  hospital at Gannaur but they were advised to take him to the MCH hospital at Rohtak.   Inste ad  of taking him to the hospital at Rohtak,   they decided to take him to AIIMS at Delhi but th e  authorities at the AIIMS directed them to the Safdarjang hospital and from there  they were  directed to take them to Ganga Ram hospital, where he was brought at about 3/3.30 A.M.on  24.5.92 i.e.  early in the morning following the evening of occurrence.   A first informatio n report  was lodged by PW5 at the Ganga Ram hospital on 25.5.92 at about 8.00 A.M.   It appears from  the record that the police officer who had come to know about the occurrence went to the vil lage  to record the report but on being told that the injured had been removed to Gannaur, he went  to  Gannaur and thereafter ultimately found them at Delhi in the Ganga Ram hospital.         The prosecution examined PW5, the informant, PW7 Omwati, wife of the deceased  and PW8 Tek Ram, a neighbour to prove its case.   It also relied on the medical evidence to  prove  that  Ram Chander (deceased) had received serious injuries which were sufficient in the  ordinary course to cause death.  As earlier noticed, the trial court acquitted PW4 but found  the  remaining accused guilty of the offence under Section 302/34 IPC.  On appeal, the High Court   acquitted A2 and A3 of the charge under Section 302/34 IPC but maintained the conviction of  the appellant under Section 302 IPC .  A1 to A3 were also found guilty under Section 323/34  IPC.         The defence of the appellant and the other accused was that the occurrence did not  take place in the manner alleged by the prosecution.   Their case was that deceased Ram  Chander was residing opposite the house of the Mehar Singh, elder brother of all the accused .    Meher Singh had young daughters living with him and Ram Chander deceased who was his  neighbour, used to pass remarks against them, which annoyed him and his family members.   Similar allegations were made against the informant PW5 and other sons of Ram  Chander(deceased) who used to address his young daughters in abusive terms when they passed  that way.  At 7.30 P.M.on the date of occurrence while Jai Singh A2 was standing in the stre et in  front of his house,  Ram Chander(deceased) abused the daughters of Mehar Singh, his elder  brother and an altercation followed.   Hearing the noise, several persons came armed in supp ort  of Ram Chander (deceased) out of whom some were armed with Jailies and others were armed  with lathis.  One Joginder who was wielding a lathi assaulted Jai Singh A2 on his hand and h ead.    He raised an alarm which attracted is younger brothers Balwan A1 and Inder Singh A3 to the  place of occurrence.   They were also assaulted with lathis and Jailies and sustained injuri es.    The injured were removed to the Government hospital at Sonepat.  They were examined by PW6  who fond serious injuries on their person and they also lodged a report with the police on 2 4.5.92  at 9.30 A.M. stating all these facts.         The testimony of PW6, the doctor who had examined the accused was recorded as a  prosecution witness.  Doctor Subodh Kumar PW6 stated that he had examined Inder Singh A3  on 23.5.92 at 11.07 P.M.and found the following injuries on his person:          1.Lacerated wound 5 cm x 1 cm x bone deep in left front to parietal region,  fresh bleeding present.  Advised X-ray skull.  A.P. and lateral views. 2.Lacerated wound 7 cm x 1.5 cm, bone deep situated 2.5 cm posterior to  injury No.1  fresh bleeding present.   Advised X-ray skull.  A.P.and lateral  views. 3.Lacerated wound 6.5 cm x 1 cm, bone deep situated 2 cm posterior to injury  No.2.  Fresh bleeding present.   Advised X-ray skull.   A.P.and lateral views.

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4.Lacerated wound 6 cm x 1.5 cm, bone deep situated in right frontal region.   Fresh bleeding present.   Advised X-ray skull.  A.P.and lateral views. 5.Diffuse swelling left hand.   Advised X-ray left hand A.P.and lateral views  and Orthopedic Surgeon’s opinion. 6.Complaining of pain in lower thoracic spine, tenderness present.  Advised X- ray T6 to T12 spines A.P.and lateral views and Orthopedic Surgeon’s opinion. 7.Lascerated wound 1/2 cm x 1/4 cm, over the dorsum of proximal inter  phalyngeal joint of right index finger, skin deep.   Fresh bleeding was  present."

       Similarly, he examined Balwan Singh A1 at 11.20 A.M.and found the following  injuries on his person:  "1.Lacerated wound 3 cm x 1 cm x bone deep in frontal region.  Fresh  bleeding was present.   Advised X-ray skull A.P.and lateral views and  observation. 2.Right black eye present.   Advised X-ray skull A.P.and lateral views. 3.Diffused swelling over right zygometic prominence.   Advised X-ray fact  A.P.and lateral views and Orthopedic Surgeon’s opinion. 4.Abrasion 2.5 cm x 1 cm over lateral aspect of right arm at the junction of  upper and middle third.  Movements normal.   Fresh bleeding was present. 5.Diffuse swelling right forearm.   Advised X-ray left hand A.P.and lateral  views and Orthopedic Surgeon’s opinion."

       He also examined A2 Jai Singh and found the following injuries on the person:  "1.Lacerated wound 3.5 cm x 1 cm x bone deep over occipital region.   Advised X- ray skull A.P.and lateral view.   Fresh bleeding was present. 2.Lacerated wound 1 cm x 1/2 cm x 1/2 cm over frontal region.   Fresh bleeding  was present.   Advised X-ray skull A.P.and lateral views. 3.Diffuse swelling of right fore arm.   Advised X-ray right fore arm.  A.P.and  lateral views and Orthopaedic Surgeon’s opinion. 4.Abrasion 2 cm x 1 cm over left acromine process. 5.Complaining of pain left index finger.   No external mark of injury seen."

       The injuries found on the person of A1 to A3 would disclose that they were  assaulting on a vital part of body, namely, their skull.   The doctor did not express any op inion  about the nature of the injuries, awaiting X-ray report with regard to those injuries.         It was argued before us by counsel for the appellant that in the facts and  circumstances of this case, the failure of the prosecution to explain the injuries on the pe rson of  the accused was fatal.   He  submitted that even the High Court did not find the evidence of  the  witnesses to be wholly reliable, and to some extent the findings recorded by the High Court  are  consistent with the case of the defence, rather than the case of the prosecution.   He submi ts that  in the facts and circumstances of this case, all the accused are entitled to an acquittal, a nd in any  case, entitled to the benefit of doubt.   The evidence on record probablises the defence of  the  accused, while the testimony of the prosecution witnesses stand discredited by reason of the ir  failure to explain the injuries on the person of the accused.         Counsel for the State drew our attention to the defence of Omwati PW7 wife of the  deceased and sought to argue that in  her deposition an explanation has been offered for the   injuries caused to the accused.   She deposed that when she apprehended danger to her husban d  she had handed over a lathi to him and that he wielded his lathi to defend himself.   She de posed  that she had seen her husband exchanging blows with the members of the defence party.   The  deposition of PW5 is not acceptable for two reasons.   Firstly, this was not stated by her w hen she  was examined under Section 161  Cr.P.C.   She has not stated in her statement recorded in th e

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course of investigation that she had seen her husband exchanging blows with the members of t he  defence party.   Secondly, it is highly improbable that the deceased Ram Chander all by hims elf  could have caused so many injuries to A1 to A3.   Obviously, therefore,  the explanation off ered  by Omwati PW7 is in the nature of an after-thought.         As to the place of occurrence, there is considerable dispute.   According to the  prosecution, the occurrence took place in the gali in front of the house of Chander Bhan  Mahajan.   It is there that Ram Chander(deceased) was assaulted by the accused.   It is admi tted  by PW5 that from the place of occurrence as pointed out by him no blood  was  recovered for  chemical examination nor was any earth sample taken for the purpose.  That by itself may not  be  of very great significance, but what is mattered is the fact that even the High Court found  that  this part of the prosecution case is not true.   The High Court found that the place of occurrence must have been the lan e in  front of the house of the deceased.   That is precisely the defence case also.   In effect t he High  Court has accepted the place of occurrence as alleged by the defence, rather than the place  of  occurrence as pointed out by PW5 in the course of her deposition.   We can, therefore, proce ed  on the basis that the occurrence took place in front of the house of the Ram Chander where h e  was assaulted.   That is consistently the defence case, since house of Mehar Singh, brother  of  deceased is opposite the house of Ram Chander(deceased).         The question then arises  whether the failure of the prosecution to explain the  injuries suffered by the accused is not fatal to the case of the prosecution.   It is true t hat in all  cases failure of the prosecution to explain injuries to accused may not be fatal, and that t he  consequence of        to explain such injuries depends upon the facts and circumstances of t he  case, the nature of the occurrence and the nature of the injuries suffered by the accused.     In this  case we find that the injuries suffered by A1 to A3 are numerous.   We can say that the inju ries  were  serious because any of the injuries on the skull could have proved fatal.   Fortunatel y, that  did not happen.   The High Court  noticing the evidence took the view that though the  prosecution had not explained the injuries on the accused persons and may not have come out  with a correct version of the occurrence, this could be said to be a case of a free fight an d,  therefore, right of private defence was not available to any of the participants and each on e must  be held responsible for is own conduct and action.   We do not find ourselves in agreement w ith  this view.   The mere fact that the accused are also found to have   sustained serious injur ies  unexplained by the prosecution  does not necessarily give rise to an inference that there mu st  have been a free fight.   In the instant case, we find that there is ample evidence on recor d to  establish that the occurrence took place in a different manner altogether in which the accus ed  were also injured.   They were promptly examined by the doctor who was examined as PW6, and  they had also lodged a first information report stating relevant facts and alleging that it  was the  prosecution party which was the aggressor.   From the facts of the case it becomes apparent  that  the prosecution has not disclosed the true genesis of the occurrence.   The motive suggested

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by  the prosecution does not appeal to us, because if there was an altercation between A1 and A2  in  village Juan when a request was made by PW5 to A1 to take the groom on his motor cycle to th e  Choupal, there appears to be no  reason why the accused would have assaulted his father afte r  returning to the village, particularly, when PW5 was not with his father.   The motive as al leged  by the prosecution does not appeal to us because it does not appear to be natural that for t he  conduct of his son at a different place, the appellant would return to the village and kill  his  father.   Having regard to the place of occurrence as found by the High Court, the defence o f the  accused is probablised.   It is well settled that while the prosecution has to prove its cas e beyond  reasonable doubt, the defence has only to produce evidence or show material on record which  proabablise its defence.         Having regard to the facts of the case and the findings of the High Court, we are  satisfied that the case of the prosecution is not proved beyond reasonable doubt.   The  prosecution has not disclosed the true genesis of the occurrence.   On the other hand, the  evidence discloses that the occurrence took place in a different manner and at a different p lace in  which three members of the defence party also suffered serious injuries.   In these circumst ances,  the appellant and the other co-accused were at least entitled to the benefit of doubt.         We, therefore, allow the appeal, set aside the judgment and order of the High Court  impugned and acquit the appellant of all the charges levelled against him.    The special le ave  petition preferred by the State is dismissed.         The bail bonds furnished by the appellant are discharged.