http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 13  

PETITIONER: HARE KRISHNA SINGH & ORS. ETC.

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT24/02/1988

BENCH: DUTT, M.M. (J) BENCH: DUTT, M.M. (J) SHETTY, K.J. (J)

CITATION:  1988 AIR  863            1988 SCR  (3)   1  1988 SCC  (2)  95        JT 1988 (1)   423  1988 SCALE  (1)405

ACT:      Sections 34,  96, 100,  302 and 379-Common intention is not by itself an offence-It creates a joint and constructive liability for  the crime  committed in  furtherance of  such common intention-Guilt  of accused-Burden  of  proof  is  on prosecution-Not necessary for prosecution to explain how and in  what  circumstances  injuries  inflicted  on  person  of accused.      Indian Evidence  Act, 1872: Section Test Identification parade-Failure to identify accused by P.W. effect of on case of prosecution.

HEADNOTE: %      The prosecution case as appearing from the Fardbeyan or the FIR  lodged by  P.W. 3,  a social  worker  was  that  on 12.12.1987 at  about 7.00  A.M. he was going to his brother- in-law and  just as  he reached  the main  gate of the Sadar Hospital, he  saw seven persons: (1) Hare Krishna Singh. (2) Sheo Narain  Sharma, (3)  Ram Kumar  Upadhyaya, (4)  Jagdish Singh’s nephew-Paras  Singh of  Birampur, (5)  Hare  Krishna Singh’s brother-in-law,  Paras Nath  Singh of  Dhobaha,  the appellants and  two more  whom he  could not  identify.  All these persons were armed with rifle, gun and pistol and were standing near  the northern side of the eastern gate, of the Hospital. At  that time  two Rickshaws  were coming from the eastern side.  In the  front rickshaw  the deceased-Jitendra Choudhary, was  sitting along with another person and in the rear rickshaw  were his  two sisters,  PW I and PW 2. As the rickshaw of  the deceased came close to these seven persons, Hare Krishna  Singh fired  at the  deceased  from  his  gun, whereupon the  latter fell  down from  the rickshaw with the rifle which  he was  carrying. The  other persons also fired upon the  deceased as  a result of which he died. After that Hare Krishna  Singh picked  up the rifle of the deceased and took to  his heels.  After investigation by PW 9, the charge sheet was submitted against all the appellants and they were put up for trial.      The prosecution examined as many as 9 witnesses of whom PWs. 1,  2, 3  and 8  were eye witnesses. The defence of the appellant-Hare

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 13  

2 Krishna Singh  was that  while he  was going  to Patna along with appellant-Ram  Kumar Upadhyaya and one Madan Singh in a rickshaw, and  that when  the rickshaw in which the deceased was travelling  came close to him, the deceased fired at him and that  he sustained  injuries. He examined five witnesses DWs. 1 to 5, to prove the nature of injury sustained by him. The defence  of Paras  Singh of  Dhobaha was that he had not visited the  village for  the last  fifteen years, while the defence of  the other  remaining appellants  was a denial of their complicity in the crime.      The Additional  Sessions Judge accepted the prosecution case, and  convicted and sentenced the appellants to various periods of imprisonment.      On appeal by the appellants the High Court affirmed the convictions and sentences.      In the  appeals by  certificate to  this Court  it  was contended: (a) on behalf of Hare Krishna Singh, appellant in Crl. A.  No. 690/82  that the  prosecution having  failed to explain the  injury sustained  by Hare  Krishna Singh in the same occurrence,  such  injury  being  a  serious  one,  the prosecution witnesses  should be  disbelieved, and  that  in such circumstances  it should  be held  that the plea of the appellant of self-defense shall be probabilised and that the prosecution must  have withheld  the true  facts as  to  the genesis and  origin of the occurrence, and that in any event a great  doubt had been cast on the prosecution case and the benefit of that doubt should go to the appellant.      (b) on behalf of Paras Singh of Birampur, the nephew of Jagdish Singh,  the sole appellant in Cr. A. No. 616/82 that in the  FIR his  name was not mentioned, that PW 3 failed to identify him  in the  T.I. Parade,  that PW 8 did not attend the T.I.  Parade, and that he was not present at the time of occurrence.      (c) on  behalf of  Sheo  Narain  Sharma  the  remaining appellant in  Crl. A.  No. 690/82  and Ram  Kumar Upadhayaya sole appellant in Crl. A. No. 615/82, that no specific overt act had  been attributed to either of them and the fact that they were  found in  the company  of Hare  Krishna Singh and Paras Singh  of Dhobaha  could not  be sufficient  to impute common intention to them.      Dismissing Criminal Appeal No. 690 of 1982 in so far as it relates to Hare Krishna Singh and Paras Singh of Dhobaha, and allowing it in 3 respect of  Sheo Narain Sharma and acquitting him of all the charges; and  allowing Crl.  A. Nos. 615 and 616 of 1982 and setting aside  the convictions  and sentences  of Ram  Kumar Upadhayaya and  Paras Singh  of Birampur and acquitting them of all the charges. ^      HELD:  1.  It  is  not  an  invariable  rule  that  the prosecution has  to explain  the injuries  sustained by  the accused in  the same  occurrence. The  burden of proving the guilt of  the accused is undoubtedly on the prosecution. The accused is  not  bound  to  say  anything  in  defence.  The prosecution has to prove the guilt of the accused beyond all reasonable doubts.  If the  witnesses examined  on behalf of the prosecution  are believed  by the  court in proof of the guilt of  the  accused  beyond  any  reasonable  doubt,  the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise. [12E-F]]      2. When the prosecution comes with a definite case that the offence has been committed by the accused and proved its case  beyond   any  reasonable   doubt,  it  becomes  hardly

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 13  

necessary for  the prosecution  to again  explain how and in what circumstances  the injuries  have been inflicted on the person of the accused. [12G]      3. Simply  because the accused has received injuries in the same occurrence, it cannot be taken for granted that the deceased  or  the  injured  person  was  the  aggressor  and consequently, he  had to defend himself by inflicting injury on the deceased or the injured person. [13B-C]      4. It  is not  the law or invariable rule that whenever the accused  sustains an  injury in  the same occurrence the prosecution has  to explain  the injuries  failure of  which will mean  that the prosecution has suppressed the truth and also the origin and genesis of the occurrence. [13D-E]]      5. Common  intention under  section 34  IPC is  not  by itself an  offence. But, it creates a joint and constructive liability for  the crime  committed in  furtherance of  such common intention. [16E-F]      6. As  no overt  act whatsoever  has been attributed to the appellants,  Ram Kumar Upadhyaya and Sheo Narain Sharma, it is  difficult to  hold, in the facts and circumstances of the case,  that they  had shared  the common  intention with Hare Krishna  Singh and  Paras Singh  of Dhobaha. When these two appellants  were very much known to the eye witnesses PW 3 and 8 non-mention of their names in the evidence as to 4      their participation in firing upon the deceased, throws a great  doubt as  to their sharing of the common intention. The conviction  and sentences of these two appellants cannot therefore be  sustained. They are therefore acquitted of all the charges. [16F-G]      7. The  Additional Sessions  Judge has not believed the case of  R Hare Krishna Singh that he had sustained a bullet injury in  the same  occurrence and  he  has  given  reasons therefor. The  High Court  has, however, come to the finding that Hare  Krishna Singh  was admitted in the hospital in an injured condition  immediately after  the occurrence. In the facts and  circumstances of  the case the prosecution is not obliged to  account for  the injury  and that the failure of the prosecution  to give  a reasonable  explanation  of  the injury would  not go  against or  throw  any  doubt  on  the prosecution case. All the eye witnesses have stated that the appellant Hare Krishna Singh had fired on Jitendra Choudhary as a result of which he died. The prosecution witnesses have been believed  by the  Additional Sessions  Judge  and  High Court. In  these circumstances it cannot be thought that the materials on  record including the statement of Hare Krishna Singh under section 313 Cr. P.C. probablise any case of self defence or that the deceased had inflicted on him the injury by firing  at him from his rifle. The appellant Hare Krishna Singh has  therefore, been  rightly convicted and sentenced. [13E-G; 14B-C, F]      8. As  regards Paras Singh of Dhobaha he was found with the accused  persons including Hare Krishna Singh. It is not disputed that he is the brother-in-law of Hare Krishna Singh as has  been described  in the  FIR. It  is the  categorical evidence of  PWs. 1,  2, 3 and 8 that Paras Singh of Dhobaha had fired  at the deceased. He has been identified by PW1 in the T.I.  Parade. In  these circumstances there is no reason to interfere  with the  order  of  conviction  and  sentence passed by the Courts below. [14F-G]]      9. The  prosecution has  not been  able to identify the appellant Paras  Singh of  Birampur with  the description of Jagdish Singh’s  nephew as given in the FIR. PW. 3 failed to identify the  appellant in  the T.I.  Parade. PW.  8 did not attend the  T.I. Parade.  In such  circumstances,  the  High

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 13  

Court was  not justified  and committed  an error  of law in relying upon  the statements  of PWs 3 and 8 made before the police mentioning  the names of Paras Singh of Birampur. The prosecution has  failed to  prove the  complicity  of  Paras Singh of  Birampur in  the crime  and that he was present at the time  of occurrence.  His conviction and sentence cannot therefore be sustained and are set aside. He is acquitted of all the charges. [15C-F] 5      Bhaba Nanda Sharma v. State of Assam, [1977] 4 SCC 396; Ramlagan  Singh  v.  State  of  Bihar,  [1973]  3  SCC  881; Onkarnath Singh  v. State  of U.P., [1975] 3 SCC 276; Bankey Lal v.  State of  U.P., [1971]  3 SCC  184 and  Bhagwan Tana Patil v. State of Maharashtra, [1974] 3 SCC 536, relied on.      Lakshmi Singh  v. State  of Bihar,  [1976] 4  SCC; 394; Mohar Rai  v. State  of Bihar;  [1968] 3 SCR 525; Jagdish v. State of  Rajasthan, [1979]  3 SCR  428; Munshi Ram v. Delhi Administration and  State of Gujarat v. Bai Fatima, [1975] 3 SCR 993, distinguished.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 690 of 1982 etc.      From the  Judgment and  order dated  20.5.1982  of  the Patna High Court in Criminal Appeal No. 329 of 1980.      R.K. Garg,  R.K. Jain,  Rajendra Singh,  S.N. Jha, R.P. Singh, Rakesh  Khanna, Md.  Israeli and Ranjit Kumar for the Appellants.      Pramod Swaroop and Mrs. G.S. Misra for the Respondents.      B.B. Singh (Not Present) for the Respondents.      A.K. Panda for the Complainant in all the appeals.      The Judgment of the Court was delivered by      DUTT,  J.   These  appeals  are  directed  against  the judgment of  the Patna High Court affirming the order of the First Additional  Sessions Judge,  Arrah, convicting all the appellants under  sections 302/34  IPC and section 27 of the Arms  Act   and  sentencing   each  of   them  to   rigorous imprisonment for  life and  rigorous imprisonment  for three years respectively and further convicting the appellant Hare Krishna Singh  under section  379 IPC  and sentencing him to rigorous imprisonment for three years; all the sentences are to run concurrently. The accused included two persons having the same  name Paras Singh, one of Village Dhobaha, brother- in-law of  Hare Krishna  Singh, one  of  the  appellants  in Criminal Appeal  No. 690  of 1982,  and the other of Village Birampur and  nephew of  Jagdish  Singh,  the  appellant  in Criminal Appeal  No. 616 of 1982. We shall hereinafter refer to 6 the said  two persons as ’Paras Singh of Dhobaha’ and ’Paras Singh of Birampur’ respectively.      The prosecution case as appearing from the Fardbeyan or the FIR  lodged by  one Sarabjit  Tiwary (P.W.  3), a social worker, on 12.12.1987 in the Arrah Sadar Police Station, was that on  that day  at about  7.00 A.M.  he was  going to his brother-in-law Raghubir  Mishra and just he reached near the main gate  of the  Sadar Hospital,  he  saw  seven  persons, namely, "(1)  Hare Krishna  Singh, resident of Dhanpura; (2) Sheo Narain  Sharma, resident  of Berkhembe  Gali;  (3)  Ram Kumar Upadhyaya,  resident of  village Dumaria;  (4) Jagdish Singh’s nephew of Birampur in military service; (5) brother- in-law of Hare Krishna Singh of Dhobaha in military service" and two  more persons  whom he  could not  identify. All the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 13  

said persons were armed with rifle, gun and pistol, and were standing near  northern side  of the  eastern  gate  of  the hospital. At  that time,  two Rickshaws were coming from the eastern side.  In the front Rickshaw, Jitendra Choudhary and another person named Lallan Rai, Resident of village Maniya, were sitting  and in the rear Rickshaw there were two girls. As the  Rickshaw of Jitendra Choudhary came near the persons mentioned above,  all of  a sudden, Hare Krishna Singh fired at Jitendra  Choudhary from  his gun,  whereupon the  latter fell down  from the  Rickshaw with  the rifle  which he  was carrying  with  him.  The  other  persons  also  fired  upon Jitendra Choudhary  along with  Hare  Krishna  Singh,  as  a result of  which he  died. After  that  Hare  Krishna  Singh picked up  the rifle  of Jitendra Choudhary and touching his body said, "He is dead, let us take to our heels". It may be mentioned here  that  the  two  girls  referred  to  in  the Fardbeyan or  FIR are  Premlata Choudhary (P.W. 1) and Sobha Choudhary  (P.W.   2),  sisters  of  the  deceased  Jitendra Choudhary.      After investigation  by P.W.  9,  the  chargesheet  was submitted against  all the  appellants and  they were put up for trial.  The prosecution examined as many as 9 witnesses, of whom  P.Ws. 1, 2, 3 and 8 were eye witnesses. The defence of Hare  Krishna Singh  was that he was going to Patna along with the  appellant Ram  Kumar Upadhyaya and one Madan Singh in a Rickshaw and when the Rickshaw reached near the shop of Sita Ram, he received a bullet from behind and fell down. He looked back  and saw  that one  Dipu Prasad and Ram Lal were firing. He  also saw the deceased Jitendra Choudhary, Chhatu Choudhary and  Lallan Rai  (P.W. 8)  firing from the eastern gate of the Hospital. He examined five witnesses, D.Ws. 1 to 5, to prove the nature of injury sustained by him. 7      The defence  of Paras  Singh of Dhobaha was that he had not visited the village Dhanpura for the last fifteen years. The defence  of other  appellants is  also a denial of their complicity in the crime.      The  learned   Additional  Sessions   Judge,  after  an elaborate discussion and analysis of the evidence adduced on behalf of  the parties,  accepted the  prosecution case  and convicted and  sentenced the  appellants as mentioned above. Regarding the  injury sustained  by Hare  Krishna Singh, the learned Additional  Sessions Judge was of the view that such injury had been deliberately introduced by him and held that he was  not injured  in the  occurrence. On  appeal  by  the appellants, the  High Court  affirmed their  convictions and sentences. Hence these appeals be special leave.      It is  contended by Mr. Garg, learned Counsel appearing on behalf  of Hare  Krishna Singh,  one of the appellants in Criminal Appeal No. 690 of 1982, that the prosecution having failed to  explain the  injury sustained by the appellant in the same  occurrence, such  injury being  a serious one, the prosecution witnesses should be disbelieved. Counsel submits that in  such circumstances, it should be held that the plea of the  appellant of self-defence has been probabilised, and that the prosecution must have withheld the true facts as to the genesis  and origin  of the  occurrence. Further,  it is submitted that  in any  event, it  has cast a great doubt on the prosecution case and the benefit of that doubt should go to the appellant.      The question,  however, is  whether it is an invariable rule that whenever an accused sustains an injury in the same occurrence, the prosecution is obliged to explain the injury and on  the  failure  of  the  prosecution  to  do  so,  the prosecution case should be disbelieved. Before answering the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 13  

question we may refer to a few decisions of this Court cited at the  Bar. Mr.  Garg has  placed much  reliance  upon  the decision of  this Court  in Lakshmi Singh v. State of Bihar, [1976] 4  SCC 394.  In  that  case,  the  accused  sustained injuries  in   the  same  occurrence.  Fazal  Ali,  J.,  who delivered the  judgment  of  the  Court,  observed  that  no independent witness  had been examined by the prosecution to support the  participation of  the appellant in the assault. Further, it  was observed  that the evidence of P.Ws. 1 to 4 clearly showed  that they  gave graphic  description of  the assault with  regard to  the order, the manner and the parts of  the   body  with  absolute  consistency  which  gave  an impression that  they had given a parrot-like version acting under a conspiracy to depose to one set of facts and one set of facts  only. In view of the nature of evidence of P.Ws. 1 to 4, this 8 Court accepted the contention made on behalf of the accused, particularly taking  the entire  picture  of  the  narrative given by  the witnesses,  that P.Ws.  1 to  4  had  combined together to  implicate the  accused falsely  because of  the long-standing  litigation   between  them   and   the   said witnesses. Thereafter,  the Court  considered  the  injuries that were  inflicted on  the person  of the  accused Dasrath Singh and  laid down  that where  the prosecution  fails  to explain the injuries on the accused, two results follow: (1) that the  evidence of the prosecution witness is untrue; and (2) that  the injuries  probabilise the  plea taken  by  the appellants. The  principle of  law laid  down in the earlier decision of  this Court  in Mohar  Rai v.  State o  f Bihar, [1968] 3 SCR 525 was followed.      In Mohar  Rai’s case  it has  been laid  down 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 case 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 principles  that have  been laid  down  in  Lakshmi Singh’s case  have to be read in the context of the facts of that  case.  It  has  been  already  pointed  out  that  the prosecution witnesses  have been  disbelieved by  this Court before  it   considered  the  question  of  failure  of  the prosecution to  explain the injuries sustained by one of the accused. If  the prosecution  witnesses had been believed in that case,  the non-explanation of the injuries sustained by the accused  would not  have affected  the prosecution case. Indeed, it  has been  laid down in Lakshmi Singh’s case that the non-explanation  of the injuries by the prosecution will not affect  the prosecution case where injuries sustained by the accused  are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.      In Mohar  Rai’s case (supra), the first appellant Mohar Rai was  convicted under  section 324  IPC for  shooting and injuring P.W  1 at  the instigation  of the second appellant Bharat Rai,  who was  himself convicted  of an offence under

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 13  

section 324 read with section 109 IPC. 9 The prosecution  proceeded on  the basis  that the  revolver (Ex. III),  which was  recovered from  Mohar  Rai,  was  the weapon that  was used  by  him  in  the  commission  of  the offence. The  ballistic expert,  who was examined as D.W. 1, was positive that the seized empties as well as the misfired cartridge could  not have  been  fired  from  Ex.  III.  The evidence of  D.W. 1  was accepted both by the trial court as well  as   by  the  High  Court.  This  Court  rejected  the prosecution case  that Mohar  Rai had fired three shots from Ex. III.  This Court  held that  once it was proved that the empties recovered  from the  scene could not have been fired from Ex.  III, the  prosecution case that those empties were fired from Ex. III by Mohar Rai stood falsified. Thereafter, the injuries  sustained by the two appellants, Mohar Rai and Bharath Rai,  were considered  by the Court and it held that the prosecution had failed to explain the injuries sustained by the  appellants and  observed that  the  failure  of  the prosecution to  offer any  explanation in that regard showed that the  evidence of  prosecution witnesses relating to the incident was  not true  or, at  any rate,  not wholly  true. Thus, in  this case  also the question of non-explanation of the injuries  on the  accused was  considered by  the  Court after it  had rejected,  on a consideration of evidence, the prosecution case  that Mohar Rai had fired from the revolver (Ex. III).  In other words, if the prosecution case had been believed that the appellant Mohar Rai had fired from Ex. III injuring  P.W.   1,  the  non-explanation  of  the  injuries sustained  by  the  accused  would  not  have  affected  the prosecution case.      On the  other hand,  in Bhaba  Nanda Sharma v. State of Assam [1977]  4 SCC  396 it has been categorically laid down by this Court that the prosecution is not obliged to explain the injuries  on the  person of the accused in all cases and in  all   circumstances.  It  depends  upon  the  facts  and circumstances of  each case  whether  the  prosecution  case becomes reasonably  doubtful for  its failure to explain the injuries on  the accused.  In Ramlagan  Singh  v.  State  of Bihar, [1973]  3 SCC  881  this  Court  again  examined  the question and  it has  been laid down that the prosecution is not called  upon  in  all  cases  to  explain  the  injuries received by  the accused  persons. It  is for the defence to put questions  to the  prosecution witnesses  regarding  the injuries of  the accused  persons. When  that is  not  done, there is  no  occasion  for  the  prosecution  witnesses  to explain the  injuries on  the person  of the accused. In the instant case  also, the  injury sustained  by the  appellant Hare Krishna  Singh, has  not been  put to  the  prosecution witnesses and  so they  had no occasion to explain the same. In such  circumstances, as  laid down  in  Ramlagan  Singh’s case, the  non-mention of  the injuries on the person of the appellant in the prosecution evidence would not 10 affect the  prosecution case, which-has been accepted by the courts below.      In Onkarnath  Singh v. State of U. P., [1975] 3 SCC 276 this Court  has reiterated  its view  as expressed in Bankey Lal v.  State of  U.P., [1971]  3 SCC  184 and  Bhagwan Tana Patil v.  State of  Maharashtra, [1974]  3 SCC  536 that the entire prosecution  case cannot  be thrown  overboard simply because  the   prosecution  witnesses  do  not  explain  the injuries on  the person  of the  accused. Thereafter, it was observed as follows:           "Such non-explanation,  however, is a factor which

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 13  

         is  to  be  taken  into  account  in  judging  the           veracity of  the prosecution  witnesses,  and  the           court will  scrutinise their  evidence with  care.           Each case presents its own features. In some case,           the failure  of the prosecution to account for the           in  juries   of  the  accused  may  undermine  its           evidence to the core and falsify the substratum of           its story,  while in  others it may have little or           no adverse  effect on the prosecution case. It may           also, in  a given  case, strengthen  the  plea  of           private defence  set up  by the  accused.  But  it           cannot be  laid down  as an invariable proposition           of law of universal application that as soon as it           is found that the accused had received injuries in           the same  transaction  in  which  the  complainant           party was  assaulted, the  plea of private defence           would stand prima facie established and the burden           would shift  on to  the prosecution  to prove that           those injuries were caused to the accused in self-           defence by  the complainant  party.  For  instance           where two  parties come armed with a determination           to measure  their strength and to settle a dispute           by force  of arms  and in  the ensuing  fight both           sides receive  injuries, no  question  of  private           defence arises.      Much reliance  has been  placed  by  Mr.  Garg  on  the following observation  of Fazal  Ali, J. in Jagdish v. State of Rajasthan, [1979] 3 SCR 428:           "It is  true that where serious injuries are found           on the  person of  the accused,  as a principle of           appreciation of evidence, it becomes obligatory on           the prosecution  to explain the injuries, so as to           satisfy the  Court as  to the  circumstances under           which the  occurrence originated.  But before this           obligation  is   placed  on  the  prosecution  two           conditions must be satisfied; 11                1. that  the injuries  on the  person of  the                accused must  be very  serious and severe and                not superficial;                2. that  it must be shown that these injuries                must have  been caused  at the  time  of  the                occurrence in question."      In  Jagdish’s   case,  the   High  Court  believed  the prosecution witnesses and accepted the prosecution case that the injuries  found on  the deceased  were very severe which resulted in  his death  and this  Court agreed with the view taken by  the High  Court in  convicting the appellant under section 302 IPC.      In regard to this point we may cite two other decisions relating to  the plea  of the accused of private defence. In Munshi Ram  v. Delhi Administration, [1968] 2 SCR 455 it has been held  by this  Court that although the accused have not taken the  plea of private defence in their statements under section 342 Cr. P.C., necessary basis for that plea had been laid in  the cross  examination of the prosecution witnesses as well  as  by  adducing  defence  evidence.  It  has  been observed that  even if  an  accused  does  not  plead  self- defence, it  is open  to the  court to consider such plea if the same  arises from  the material on record. The burden of establishing that plea is on the accused and that burden can be discharged  by showing  preponderance of probabilities in favour of that plea on the basis of the material on record.      Munshi Ram’s  case arises  out of  a dispute  over  the possession of  land. The  case of  the appellants that their

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 13  

relation was  a tenant  of the disputed land for over thirty years  and  that  his  tenancy  was  never  terminated,  was accepted by  this Court. In other words, the appellants were found to be in lawful possession of the land in question and that P.Ws.  17 and  19 had  gone  to  the  land  with  their friends, P.W.  19 being  armed with  a deadly weapon, with a view to  intimidating the  relation of the appellants, whose tenancy was  not terminated.  They were held to be guilty of criminal trespass  and of constituting an unlawful assembly. In the  context of  the above  facts, this  Court  made  the observation that  it is  open to  the court  to consider the plea of  private defence  even though the same does not find place in the statement under section 342 Cr. P.C.      The next  case that has been relied upon by Mr. Garg is that of  State of Gujarat v. Bai Fatima, [1975] 3 SCR 993 in that case,  on behalf  of the  appellants  the  decision  in Munshi Ram’s case (supra) was relied 12 upon in  regard to  the question  of  the  plea  of  private defence. In  rejecting the  contention of  the accused, this Court pointed  out that not only the plea of private defence was not  taken by  the accused  in  their  statements  under section 342 Cr. P.C., but no basis for that plea was laid in the cross-examination  of the  prosecution witnesses  or  by adducing any  defence  evidence.  As  regards  the  injuries sustained by  one of  the accused,  this Court  observed  as follows:           "In material particulars the evidence of the three           eye  witnesses  as  also  the  evidence  of  dying           declaration of  the deceased before P.W. Gulamnabi           is so  convincing and natural that no doubt creeps           into it  for the  failure of  the  prosecution  to           explain the  injuries on  the person of respondent           No. 1.  The prosecution  case is not shaken at all           on that account.      We have  referred to  the above decisions in extenso in order to consider whether it is an invariable proposition of law that  the prosecution is obliged to explain the injuries sustained by  the accused in the same occurrence and whether failure of the prosecution to so explain the injuries on the person of  the accused  would mean  that the prosecution has suppressed the  truth and  also the genesis or origin of the occurrence. Upon  a conspectus  of the  decisions  mentioned above, we  are of  the view  that the  question  as  to  the obligation  of  the  prosecution  to  explain  the  injuries sustained by  the accused  in the  same occurrence  may  not arise in  each and  every case. In other words, it is not an invariable rule  that the  prosecution has  to  explain  the injuries sustained  by the  accused in  the same occurrence. The  burden   of  proving   the  guilt  of  the  accused  is undoubtedly on  the prosecution. The accused is not bound to say anything  in defence.  The prosecution  has to prove the guilt of  the accused  beyond all  reasonable doubts. If the witnesses examined on behalf of the prosecution are believed by the court in proof of the guilt of the accused beyond any reasonable doubt,  the question  of the  obligation  of  the prosecution to explain the injuries sustained by the accused will not  arise. When  the prosecution comes with a definite case that  the offence has been committed by the accused and proves its  case beyond  any reasonable  doubt,  it  becomes hardly necessary  for the  prosecution to  again explain how and in  what circumstances  injuries have  been inflicted on the person of the accused.      The accused  may take  the plea of the right of private defence which  means that  he had  inflicted injury  on  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 13  

deceased or the injured 13 person in exercise of his right of private defence. In other words, his  plea may  be that  the deceased  or the  injured person was the aggressor and inflicted injury on the accused and in order to defend himself from being the victim of such aggression, he  had inflicted injury on the aggressor in the exercise of  his right  of private defence. As has been held in Munshi  Ram’s case (supra) the burden of establishing the plea of private defence is on the accused and the burden can be discharged  by showing  preponderance of probabilities in favour of  that plea on the basis of the material on record. It, therefore,  follows that  simply because the accused has received injuries in the same occurrence, it cannot be taken for granted  that the deceased or the injured person was the aggressor and  consequently, he  had to  defend  himself  by inflicting injury on the deceased or the injured person.      All  the  decisions  of  this  Court  which  have  been referred to  and discussed  above, show  that when the court has believed  the prosecution  witnesses as  convincing  and trustworthy, the  court  overruled  the  contention  of  the accused that  as the  prosecution had  failed to explain the injuries sustained  by the  accused in  the same occurrence, the prosecution  case should  be disbelieved and the accused should be  acquitted. Thus,  it is not the law or invariable rule that  whenever the  accused sustains  an injury  in the same occurrence, the prosecution has to explain the injuries failure  of   which  will  mean  that  the  prosecution  has suppressed the  truth and also the origin and genesis of the occurrence.      The learned  Additional Sessions Judge has not believed the case  of Hare  Krishna Singh  that he  had  sustained  a bullet injury  in the  same  occurrence  and  he  has  given reasons therefor.  The High  Court has, however, come to the finding that Hare Krishna Singh was admitted in the hospital in an injured condition immediately after the occurrence. We do not  propose to  reassess evidence  on the question as to whether Hare  Krishna Singh had sustained any injury or not. We may  assume that  he had sustained a bullet injury in the same  occurrence.   But,  even   then,  in   the  facts  and circumstances of  the case  the prosecution, in our opinion, is not  obliged to  account for  the  injury  and  that  the failure of  the prosecution to give a reasonable explanation of the injury would not go against or throw any doubt on the prosecution case.      The injury that was sustained by Hare Krishna Singh was on the  back. The  P.Ws. 1  and 2,  the two  sisters of  the deceased Jitendra  Choudhary, denied  the suggestion  put to them on  behalf of  Hare Krishna  Singh that  their  brother Jitendra Choudhary had been shoot- 14 ing from  his rifle.  P.W. 3,  who is an independent witness and was  present on the scene of occurrence, also denied the suggestion of  the defence  that there  was firing  on  Hare Krishna Singh. P.W. 8 Lallan Rai also denied such suggestion of the  defence. Hare  Krishna Singh  made a statement under section 313 Cr. P.C. It is not his case that in self-defence he had  fired at  the deceased Jitendra Choudhary. He denied that he  had any  fire-arms with him or that he had fired at Jitendra Choudhary.  He also denied that none of the accused had any  weapon with  him. All the eye-witnesses have stated that the  appellant Hare Krishna Singh had fired on Jitendra Choudhary as  a result  of which  he died.  The  prosecution witnesses have  been  believed  by  the  learned  Additional Sessions Judge  and the High Court. In the circumstances, we

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 13  

do not  think that  the materials  on record  including  the statement of  Hare Krishna Singh under section 313 Cr. P.C., probabilise any  case of  self-defence or  that the deceased had inflicted  on him  the injury  by firing at him from his rifle.      It may  be that  two empties  were found by the side of the dead-body  of the  deceased,  but  the  High  Court  has rightly observed  that the  presence of the empties does not necessarily mean that the deceased had fired. The High Court points out  that three  live cartridges  were also recovered from the  pocket of  the deceased at the time of inquest and observes that keeping of empty cartridges by the side of the body of the deceased cannot be ruled out. We do not find any infirmity in the view expressed by the High Court. It is not at all amenable to reason that the deceased had started from his house along with his two sisters with a view to fighting with the  accused. In  the circumstances, we are of the view that the  appellant Hare  Krishna  Singh  has  been  rightly convicted and sentenced as above.      Now we  may deal  with  the  case  of  Paras  Singh  of Dhobaha, one of the appellants in Criminal Appeal No. 690 of 1982. He  was found  with the accused persons including Hare Krishna Singh. It is not disputed that he is the brother-in- law of  Hare Krishna  Singh, as he has been described in the FIR. It  is the  categorical evidence of P.Ws. 1, 2, 3 and 8 that Paras  Singh of  Dhobaha  had  fired  at  the  deceased Jitendra Choudhary.  He has been identified by P.W. 1 in the T.I. Parade. In the circumstances, we do not find any reason to interfere  with the  order  of  conviction  and  sentence passed by the courts below.      So far  as Paras  Singh  of  Birampur,  the  nephew  of Jagdish Singh  and the sole appellant in Criminal Appeal No. 616 of  1982, is  concerned, his  case stands on a different footing. Indeed, Mr. Rajender 15 Singh, the  learned  Counsel  appearing  on  behalf  of  the appellant,  has   challenged  the   very  presence   of  the appellant,  Paras   Singh  of   Birampur,  at  the  time  of occurrence.      In the  FIR, his  name has  not been  mentioned, it has only been  stated "Jagdish Singh’s nephew who is in military job of  Birampur". Jagdish  Singh may  have  more  than  one nephew. The  I.O. (P.W.  9) in  his evidence has stated that before the  arrest of  Paras Singh  of Birampur,  he did not know his  name and  he cannot  say how  many nephews Jagdish Singh   has.    The   only    distinctive   particular   for identification, as  given in  the FIR, is that the nephew is in military  service. The  prosecution has  not adduced  any evidence to  show that the appellant is in military service, and that  no other  nephew  of  Jagdish  Singh  is  in  such service. Thus, the prosecution has not been able to identify the appellant  Paras Singh  of Birampur with the description of Jagdish  Singh’s nephew  as given  in the  FIR. The  most significant fact  is that  P.W. 3  failed  to  identify  the appellant in the T.I. Parade. P.W. 8 did not attend the T.I. Parade. His  case is  that he  was not  called to attend the T.I. Parade.  On the other hand, it is the defence case that P.W. 8  was called  but he  did not  attend the T.I. Parade. Whatever might  have been  the reason, the fact remains that no attempt  was made  by the prosecution to have Paras Singh of Birampur identified by P.W. 8. In such circumstances, the High Court  was not  justified and committed an error of law in relying  upon the  statement of P.Ws. 3 and 8 made before the police  mentioning the  name of Paras Singh of Birampur. It is  true that  P.Ws. 3  and 8  identified Paras  Singh of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 13  

Birampur in  court,  but  such  identification  is  useless, particularly in  the face of the fact that P.W. 3 had failed to identify  him in  the T.I.  Parade. In the circumstances, the prosecution  has failed to prove the complicity of Paras Singh of  Birampur in the crime. Indeed, the prosecution has failed to  prove that Paras Singh of Birampur was present at the time  of occurrence. His conviction and sentence cannot, therefore, be sustained.      Now we  may consider  the cases  of the  remaining  two accused, namely, Sheo Narain Sharma, the remaining appellant in Criminal  Appeal No. 690 of 1982, and Ram Kumar Upadhaya, the sole appellant in Criminal Appeal No. 615 of 1982. These two appellants have been convicted as a consequence of their sharing the common intention to murder the deceased Jitendra Choudhary. Both  of them  have been  named in the FIR. It is submitted by  the learned  Counsel appearing  on  behalf  of these two  appellants that  no specific  overt act  has been attributed to either of them. It may be that they were found in the  company of  Hare Krishna  Singh and  Paras Singh  of Dhobaha but, the 16 learned Counsel submits, that fact will not be sufficient to impute common intention to them.      So  far   as  the   appellant  Ram  Kumar  Upadhaya  is concerned, there  is evidence that he went with Hare Krishna Singh, but  there is  no evidence  that he had also left the place of  occurrence with him. It is the evidence of all the eye-witnesses, namely, P.Ws. 1, 2, 3 and 8 that Hare Krishna Singh had  fired a  shot at the deceased Jitendra Choudhary, hitting him in the face and he rolled and fell down from the Rickshaw in  front of  the gate.  Thereafter, Paras Singh of Dhobaha also  fired  at  the  deceased.  After  specifically mentioning the  names of  Hare Krishna Singh and Paras Singh of Dhobaha  as persons who had fired at the deceased, P.W. 3 stated that  thereafter two/three firings took place and all the accused  went to  the shop  of Sita  Ram in front of the gate on  the road  from where  they also fired upon Jitendra Choudhary. P.W.  8 in  his evidence  has also made a general statement that  all the accused started firing upon Jitendra Choudhary.  It   is  not   readily  understandable  why  the witnesses did  not specifically  mention the  names of  Sheo Narain Sharma and Ram Kumar Upadhaya, if they had also fired at the deceased. Except mentioning that these two appellants were present, no overt act was attributed to either of them.      The question is whether the crime was committed by Hare Krishna Singh  and Paras  Singh of Dhobaha in furtherance of the common  intention of  these two  appellants also. Common intention under  section 34 IPC is not by itself an offence. But, it  creates a  joint and constructive liability for the crime committed  in furtherance of such common intention. As no  overt   act  whatsoever   has  been  attributed  to  the appellants, Ram Kumar Upadhaya and Sheo Narain Sharma, it is difficult to  hold, in  the facts  and circumstances  of the case, that  they had  shared the  common intention with Hare Krishna Singh  and Paras  Singh of  Dhobaha. When  these two appellants were  very much  known to the eye witnesses, non- mention  of   their  names  in  the  evidence  as  to  their participation in  firing upon  the deceased,  throws a great doubt as  to their  sharing of  the  common  intention.  The convictions and  sentences  of  these  two  appellants  also cannot, therefore, be sustained.      For  the   reasons  aforesaid,   the  convictions   and sentences of  Hare Krishna  Singh and Paras Singh of Dhobaha are affirmed.  Criminal Appeal No. 690 of 1982, in so far as it relates to Hare Krishna Singh and Paras Singh of Dhobaha,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 13  

is dismissed. 17      The conviction  and sentence  of Sheo Narain Sharma are set aside A and he is acquitted of all the charges. Criminal Appeal No.  690 of  1982, in  so far  as it  relates to Sheo Narain Sharma, is allowed.      Criminal  Appeal  No.  615  of  1982  is  allowed.  The conviction and  sentence of Ram Kumar Upadhaya are set aside and he is acquitted of all the charges.      Criminal  Appeal  No.  616  of  1982  is  allowed.  The conviction and  sentence of  Paras Singh of Birampur are set aside and he is acquitted of all the charges. N.V.K. 18