REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  2020    OF 2008 [Arising out of SLP (CRL.) No. 2276 of 2007]

RAVISHWAR MANJHI & ORS.     … APPELLANTS

Versus

STATE OF JHARKHAND    … RESPONDENT

J U D G M E N T

S.B. SINHA, J.

1. Leave granted.

2. Appellants and one Raghu Manjhi, since deceased, along with four

others  were  tried  for  commission  of  offences  under  Sections  302/149,

307/149, 326/147/148/324 and 326 of the Indian Penal Code.

3. The occurrence is said to have taken place on or about 31.10.1997 at

about  2.00  p.m.  at  village  Simultand  within  the  jurisdiction  of  Chandan

Kiyari (Bangaria Assistant Thana) Police station in the district of Bokaro.

First  Information Report (FIR) in relation to the said incidence is said to

have been recorded at 3.45 p.m. in the complainant’s (Suresh Kumar Das,

P.W.10) house.  In the FIR, it was alleged by the complainant that when his

father Nagender Nath Das (deceased) and uncle Manpuran Das were sitting

in front of their house after taking meal, he heard a noise (hulla) whereupon

he came out and saw Ravishwar Manjhi, son of Berda Manjhi armed with

‘iron tenta’, Jaleshwar Manjhi, son of Veda Manjhi armed with ‘tangi’, Kala

Chand Manjhi, son of Berda Manjhi, Santu Manjhi son of Balesar Manjhi

armed with ‘bhala’, Raghu Manjhi  son of late Nakul Manjhi  armed with

‘bhala’ and Umakant Rajak armed with ‘bhala’ were assaulting his father

and uncle.  He raised an alarm whereupon his other uncle Gour Das came to

rescue them.  Jaleshwar Manjhi assaulted him also with a ‘tangi’ as a result

of which he had received an injury on the palm of his right hand.  Manpuran

Das, his uncle sustained injuries on his left armpit, on left knee joint and on

the left side of the head.  Jaleshwar Manjhi caused tangi blow to his father.   

When he wanted to take his father with him then Ravishwar Manjhi

pierced iron tenta (ballam) on the right side of the back of his father and fled

away.  The motive for commission of offence was stated to be objection by

his father from creating nuisance by the accused in front of their house.  In

the FIR, it was said to have been recorded that the dead body of Nagender

Nath Das was lying on the road and Gour Das was lying in injured condition

and Puran Das was lying in the state of unconsciousness.

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4. P.W.17-Shankar Ram A.S.I., however, stated that on the said date he

had received a phone call informing him that a fight was going on at village

Simultand. On the basis of the said information, he recorded a ‘Sanha’ and

proceeded towards the place of occurrence.  However, admittedly, the said

‘Sanha’ has not been produced.  He, furthermore, did not disclose as to from

whom he received the information.

5. Indisputably,  another  fard-beyan  of  Ravishwar  Manjhi  (accused

No.5) was recorded by one Alok Kumar, the Investigating Officer  of the

present case.  He, however, had not been examined by the prosecution.   

6. Both the FIRs were lodged at about 10.15 p.m. in the Chandankiyari

Police Station.  Whereas FIR No. 104 was recorded against the appellants

under Sections 147,  148, 149, 323,  324, 326, 307 and 302 of the Indian

Penal  Code,  FIR  No.  105  was  registered  against  the  complainant  party

under Sections 147,  148, 149, 323,  324, 342, 448 and 354 of the Indian

Penal Code.

7. The case of the appellants as stated in the said FIR No. 105 lodged by

the accused No. 5 is  that the deceased had trespassed into his house and

tried to outrage the modesty of Chinta Muni Majhian, wife of his younger

brother  and  when  she  raised  alarm,  appellants  tried  to  save  her.   The

deceased, however, was armed with a tangi wherewith he assaulted on both

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the appellants.  He called all his family members who also were armed with

lethal weapons.  Appellants were assaulted causing injuries to them.  The

injuries  sustained  by  the  appellants  Ravishwar  Manjhi  and  Jaleshwar

Manjhi  were  examined  by  the  SHO  Chandankiyari  Police  Station.   He

prepared injury reports of the appellants and sent them to the hospital for

further treatment.   

8. The injured, however, were sent to the private clinic of P.W. 11 – Dr.

Ratan  Kejriwal.   Admittedly,  at  Chandankiyari  there  is  a  government

hospital.  It is also not in dispute that there is a hospital of Bharat Coking

Coal Limited (BCCL), a public sector undertaking at Amlabad in which one

of the injured witnesses was an employee.   

They, however, chose to go to village Chas which is at a distance of

22 kilometers from the place of occurrence and were admitted in the clinic

of P.W.11.  

Post-mortem was conducted on 1.11.1997 at about 11.30 a.m. in the

Sadar Hospital, Bokaro by Dr. Avinash Kumar Chaudhary (P.W. 12).  The

injuries observed by him in his post-mortem report on the deceased were as

under:

“(i) incised  wound 5”  x 1 ½” x cranial  cavity deep  on  the  left  side  of  the  forehead obliquely placed and extending to the right parietal  region  of  the  scalp  with  obvious commuted  fracture  of  frontal  bone  on  the left side;

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(ii) Abrasion 2 ½” x 1 ½” over front of left shoulder wrist;

(iii) Abrasion 1 ½” x ½” over left shoulder;

(iv) Penetrating wound with sharp margins 1 ½” x ¼” x 5” deep over the right renal area 1” away from the L2 spine  

(v) On  dissection,  the  doctor  had  found  the  cranial  vault fractured  and  the  margins  and  brain  matter  were  torn, lacerated  and  contused  over  the  left  asterior  half extending  to  the  right  hemisphere;   The  penetrating would was 5” deep and in  its  area had lacerated right kidney  bodily  through  out  its  breadth.   It  had  also perforated the peritoneum and the ascending column of the large gut  and part  of the small  intestine.   The soft tissue and pours of the aforesaid  would was lacerated. The abdominal cavity was filled with blood clots, faecal matter and other intestinal material.  

The doctor had further observed that an iron rod with a spear shaped

head with two spikes (tenta)  was found stuck in  the  body which he had

removed and handed over to the constable. In the opinion of the doctor, the

death occurred due to injury no. (iv), which was caused by a sharp weapon

and due to cardiac respiratory failure on account of the internal and external

hemorrhage and injury to the vital organs like brain, kidney and intestine.  

9. In both the cases, chargesheets were filed on 31.12.1997.   

The  following  charges  were  framed  against  the  accused  under

Sections  302/149,  307/149,  326/147,  148,  324  I.P.C.  on  23.4.1994  by

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Additional District & Sessions Judge, IInd Bokaro at Chas, which read as

under:

“FIRST – That  you, on or  about  the  31st day of October  97  at  2  pm  at  village  Simultand  P.S. Chandankiyari,  Distt.  Bokaro  all  of  you  in furtherance of common object did commit murder by intentionally or knowingly causing the death of Nagendra  Nath  Das  and  thereby  committed  an offence punishable  under Section 302/149 of the Indian Penal code, and within my cognizance.  

SECONDLY- That you, on or about the same date of  same  time  at  same  place  all  of  you  in furtherance  of  common  object  did  (sic)  act  it namely assaulted with deadly weapons with such intention or knowledge under such circumstances, that  if  by  that  act  you  had  caused  the  death  of Manpuran  Das  @  Puran  Chandra  Das  and  (2) Gour Das you would have been guilty of murder and  thereby  committed  an  offence  punishable Section  307/149  of  the  Indian  Penal  Code,  and within my cognizance.  THIRDLY- That you, on or about the same date of same  time  at  same  place  voluntarily  caused grievous  hurt  to  (1)  Manpuran  Das  @  Puran Chandra Das and (2) Gour Das by means of Tangi which  is  an  instrument  for  cutting  and  thereby committed  an  offence  punishable  under  Section 326  of  the  Indian  Penal  Code,  and  within  my cognizance.  

FOURTHLY- That you, on or about the 31st day of October  1997 at  2  pm at  village  Simultand  P.S. Chandankiyari,  Distt.  Bokaro  all  of  you  were  a member of unlawful assembly and in prosecution of  the  common  object  of  the  said  assembly committed  the  offence  of  rioting  and  thereby committed  an  offence  punishable  under  Section 147  of  the  Indian  Penal  Code,  and  within  my cognizance.

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FIFTHLY - That you, on or about the same date of  same  time  at  same  place  were  a  member  of unlawful  assembly and did in prosecution  of the common  object  of  that  assembly  commit  the offence of rioting and at that time you were armed with  a  deadly  weapons  namely,  Tanta,  Tenta (Ballam),  Bhala  etc.  and  thereby  committed  an offence  punishable  under  Section  148  of  the Indian Penal Code, and within my cognizance. SIXTHLY- That you, on or about the same date of same time at same place voluntarily caused hurt to (1) Manpuran Das @ Puran Chandra Das and (2)  Gour  Das  by  means  of  Tangi  which  is  an instrument  for  cutting and thereby committed  an offence  punishable  under  Section  324  of  the Indian Penal code, and within my cognizance.”

Indisputably,  charges  were  also  framed  against  the  prosecution

witnesses  under  Sections  147/149,  323/149,  and  342/149 respectively  by

Sub-Divisional Judicial Magistrate, Chas, Bokaro on 12.7.1999, which read

as under:

“FIRST-  That  you,  on  or  about  the  31st day  of October  1997  at  village  Simultand  P.S. Chandankiyari,  Distt.  Bokaro being a member of an  unlawful  assembly  committed  rioting  in  the prosecution  of  common  object  of  an  unlawful assembly  and  thereby  committed  an  offence punishable  under  Section  147/149  of  the  Indian Penal Code, and within my cognizance.

SECONDLY- That you, on or about the same day of  same  at  same  voluntarily  caused  hurt  to informant  Ravishwar  Manjhi  and  his  younger brother  Jaleshwar  Manjhi  in  the  prosecution  of common  object  of  an  unlawful  assembly  and

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thereby committed an offence punishable Section 323/149 of the Indian Penal Code, and within my cognizance.

THIRDLY- That you, on or about the same day of same  at  same  wrongfully  confined  to  informant and  his  younger  brother  in  the  prosecution  of common  object  of  an  unlawful  assembly  and thereby  committed  an  offence  punishable  under Section  342/149  of  the  Indian  Penal  Code,  and within my cognizance.”

10. Both the cases were taken up for hearing by different courts.  It is,

however, stated that the cases lodged by the accused persons is still pending

in the Court of Judicial Magistrate, Bokaro.   

11. Before  the  learned  Sessions  Judge,  Seventeen  witnesses  were

examined  on  behalf  of  the  prosecution.  P.W.1-  Manpuran  Das,  P.W.7-

Parmeshwar Das,  and P.W. 9-Gour Das were injured witnesses.  P.W. 2-

Rajan  Das (Pradeep Kumar Das),  P.W. 3-Dhaneshwar Das (Dhona Das),

P.W. 6 Khagendra Nath  Das,  P.W. 8-Neelam Devi  and P.W. 10-  Suresh

Kumar Das (Informant) were said to have witnessed the occurrence.  P.W. 4

Chinta Haran Das and P.W. 5-Mantu Das were also said to have witnessed a

part of the occurrence.   

P.W.11-Dr. Ratan Kejriwal in whose Nursing Home the injured were

admitted, P.W. 9 Gour Das and Puran Chand Das were admitted, P.W. 12-

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Dr. Avanish Kumar Choudhary, the Autopsy Surgeon, P.W. -16 - Dr. P.S.

Kashyap, who is said to have examined Parmeshwar Das (P.W. 7), P.W.17-

Shankar  Ram, A.S.I.  who  had  recorded  the  fard-beyan  of   P.W. 10  and

conducted the inquest were also examined.   

The Investigating Officer, however, was not examined.   

Appellants  also  examined  two  defence  witnesses,  namely,  Sahdeo

Mahto (D.W. 1),  a police constable for proving the fard-beyan, FIR and

charge-sheet  filed against  the complainant  party and Dr. Virendra Kumar

(D.W.2) who had examined the accused Ravishwar Manjhi and Jaleshwar

Manjhi.

12. The learned trial judge did not place any reliance upon the evidence

of  P.W.7  Parmeshwar  Das,  who  claimed  himself  to  be  an  injured

eyewitness.   

The learned trial judge further did not believe the allegation of giving

a ‘tangi’ blow by Umakant Rajak on the head of Manpuran Das.  It was,

however, held that Jaleshwar Manjhi had caused grievous injury by a ‘sharp

weapon’ on the left palm of Gour Das and Raghu Manjhi caused grievous

injury on the left knee joint by a ‘sharp weapon’ to Manpuran Das and the

accused Kala Chand Manjhi also caused grievous injury on the left scapula

of  Manpuran  Das  by  a  ‘sharp  weapon’.  Accused  Jaleshwar  Manjhi  was

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found to have been assaulted the deceased by giving severe blow by ‘tangi’

on the head causing fracture of the frontal bone and the brain matter was

torn.  Ravishwar Manjhi pierced Tenta in the back of the deceased.

On the basis of the aforementioned finding, the accused persons were

convicted and the following sentences were imposed:

Name of accused Convicted under Section  

Sentence awarded  

Ravishwar Manjhi 302, 148 I.P.C. Life imprisonment and 2 years RI respectively.

Jaleshwar Manjhi 302, 148 & 326 I.P.C.

Life imprisonment and 2 yrs. RI and 5 yrs. RI respectively  

Kala Chand Manjhi 326 and 148 I.P.C.

5 yrs. RI and 2 yrs. RI respectively

Raghu Manjhi 326 and 148 I.P.C.  

5 yrs. RI and 2 yrs. RI respectively

Santu Manjhi 148 I.P.C. 2 yrs RI

Uma Kant Rajak 148 I.P.C. 2 yrs. RI

13. The High Court by reason of the impugned judgment has dismissed

the appeal preferred by the appellants herein.   

14. Mr.  Abhijit  Sengupta,  learned  counsel  appearing  on  behalf  of  the

appellants would contend:

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(i) The genesis and origin of the occurrence has been suppressed

by the prosecution.

(ii) The injuries on the person of the accused having been denied,

the prosecution  witnesses  must  be  held  to  be not  reliable  as

they suppressed material points.  

(iii) Non-examination  of  the  Investigating  Officer  has  caused

serious prejudice to the accused.

(iv) Actual place of occurrence, namely, whether it was in front of

the house of the appellant Jaleshwar Manjhi or in front of the

house of the deceased, has not been firmly established.   

(v) The prosecution having not sent the blood stained earth which

was collected by P.W.17 for chemical examination, the defence

version must be held to have been proved.   

(vi) The prosecution witnesses should not be believed as inordinate

delay was caused in obtaining their statements.   

(vii) The station diary (Sanha) on the basis  whereof P.W. 17 was

said to have reached the place of occurrence having not been

produced,  the  appellants  were  seriously  prejudiced  wherefor

adverse inference should be drawn.

(viii) The materials brought on record cast a serious doubt in regard

to the time of recording of the fard-beyan as investigation had

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commenced even on the basis of the station diary, and thus the

FIR was inadmissible in evidence.

(ix) There was no reason for the injured to obtain treatment from a

private Hospital although there was Government hospital near

the place of occurrence.  

(x) The  courts  below  in  their  judgments  did  not  consider  and

discuss  the  evidence  as  regards  the  charge  of  forming  an

unlawful assembly, and thus, the prosecution must be held to

have  failed  to  prove  that  the  appellants  formed  a  common

object to commit the offence.   

(xi) Statements of the prosecution witnesses having been recorded

after the medical evidence was available to them, no reliance

thereupon shall have been placed by the courts below.

(xii) Statements  of  the  accused  persons  –  appellants  were  not

properly recorded under Section 313 of the Code of Criminal

Procedure which caused a grave prejudice.  

(xiii) The  courts  below  made  out  a  third  case  which  was  not

supported  by  the  evidence  on  record  and  which  is

impermissible in law.  

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(xiv) Wrong  description  of  weapons  in  the  FIR  had  affected  the

testimonial  value  of  the  witnesses  which  improbalize  the

prosecution case.   

(xv) Both the cases should have been tried by the same court and

one after another.  

(xvi) In any view of the matter, the appellants must be held to have

exercised their right of private defence in view of the injuries

sustained by them.

15. Mr. Ratan Kumar Choudhuri, learned counsel appearing on behalf of

the State of Jharkhad, on the other hand, would contend:

(i) As P.W. 17 has  been  examined by the  prosecution  who has

recorded the FIR, non-examination of the Investigating Officer

was not of much significance.

(ii) Statements  of  P.W.1,  P.W.  3  and  P.  7  could  not  have  been

recorded as they were admitted in the hospital.   

(iii) The injured persons and the deceased were taken to Chas as it

was found necessary that they receive treatment in the referral

hospital at Chas and the same having been found to be closed,

the injured were then admitted to the Nursing Home which was

at Chas.   

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(iv) The prosecution has proved the genesis of the occurrence.  

(v) The learned Sessions Judge as also the High Court arrived at

the finding of guilt of the accused, upon proper analysis of the

evidence adduced by the prosecution and in that view of the

matter the impugned judgment should not be interfered with.

(vi) Appellants  had  formed a common object  on  the  spot  and in

view of the nature of injuries inflicted on the deceased as also

on  the  injured  persons,  prosecution  must  be  held  to  have

proved formation of the unlawful assembly.   

16. The learned Sessions Judge as also the High Court did not record any

finding that all the accused persons formed a common object.   

There was no premeditation on the part of the accused.   Two of the

accused have been found guilty under Sections 302 and 148 of the Indian

Penal Code and other accused under Sections 326 and 148 thereof.   

Mr. Sengupta may be correct in his submission that the prosecution

has not come out with the genesis of the occurrence.  We also do not know

as to why both the cases were not taken up by the same court one after the

other.  We furthermore fail to understand as to how a criminal case of 1999

is still pending in the Court of Judicial Magistrate, Bokaro.   

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17. The learned Sessions Judge as also the High Court appeared to have

proceeded on the premise that as the appellants had not been able to prove

their  defence,  and therefore,  the  prosecution  version  should  be accepted.

The approach of the courts below was, thus, not correct.  

The  investigation  was  carried  out  in  a  slipshod  manner.   The  FIR

clearly  showed  that  even  before  lodging  of  the  FIR,  investigation  had

started.  The inquest was conducted, bloodstained grass and soil had been

seized and the dead body was sent for post-mortem.   

18. It is beyond anybody’s comprehension that if the incident had taken

place at about 2’O clock and it took about one and half hours for P.W. 17 to

reach the village Simultand, how the FIR was recorded at about 3.45 p.m.

while the inquest report was prepared at about 4.05 p.m. and blood stained

grass and soil was seized at about 5.00 p.m.  The injured persons received

grievous  injuries.   It  was  expected  that  they  would  be  rendered  some

medical help at the earliest.  They were unconscious and, thus, they should

have  been  sent  for  treatment  to  a  nearby  hospital.   It  was  absolutely

necessary that at least some medical help is rendered to them.  

They reached Dr. Kejriwal’s Nursing Home at about 7.00 p.m. The

following injuries were noticed by P.W.11, in his own words:

“On Gour Das I found following injuries:

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1. Incised  wound  in  left  palm 9  cm x  1  cm cutting or superficial (illegible)

2. Abrasion  on  left  shoulder  joint.   Aged within 6 hours. No. 1 by sharp instrument, 2nd by  hard  substance.  No.1  grievous  in nature and 2 simple.

On  Puran  Chand  Das  found  following injuries:

1. Lacerated wound on scalp 5 cm x 0.6 cm x . 5 cm avulsing on muscles.

2. Incised wound on (illegible) left scapula .10 cm x 1.2 cm.

3. Incised  wound  (illegible)  left  knee  joint  8 cm x 10 cm. age within 6 hrs.  Number one caused  hard  blunt  object  and  another  by sharp  instrument.   All  the  injuries  are grievous  the  two  injuries  re  in  pen  and signature Exh.4 and 4A.

In response to all the relevant questions, his standard answer was “I

do not remember”.   

19. If the prosecution case is correct that the dead body as also the injured

persons were brought to the referral hospital, the same having been found to

be closed,  the injured were admitted in the Nursing Home, there was no

reason as to why a police personnel  did not  accompany them.  It  is  also

strange that neither the exact location of injury on the head of the Puran Das

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was  stated  nor  description  of  the  said  injury  had  been  furnished  by the

Doctor.  He was also not in a position to say whether injury No. 3 was from

the  front  or  behind.   According  to  him all  injuries  could  be  caused  by

similar weapons.  He, in his injury report, even did not mention the colour

of injury.   

20. Whereas  all  the  other  prosecution  witnesses  were  admitted  in  the

hospital on the same day, P.W. 7 is said to have been admitted on the next

day although he had suffered a grievous injury.  It is not known whether he

had been given any medical aid or not.  Statement of none of the witnesses

was recorded either on the day on which the occurrence had taken place or

the day after.   

21. P.W. 1 was examined after the ‘Shradh Ceremony’ of deceased was

over which would be about twelve days after the death.  P.W. 3 stated that

he was examined after one month.  Statement of P.W. 7 was also taken after

he was discharged from hospital, i.e., at least after a week.   

The Investigating Officer in a case of this nature should have been

examined.  His examination by the prosecution was necessary to show that

there had been a fair investigation.  Unfortunately, even no site plan was

prepared.  There is nothing on record to show as to the exact place where

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the occurrence had taken place.  It is stated that the house of the parties is

divided by a road.  If that be so, it was all the more necessary to pin point

the exact place of occurrence to ascertain who was the aggressor.   

22. No doubt, a life is lost and two persons suffered grievous injuries but

we must also notice the injuries suffered by two of the appellants as was

disclosed by Dr. Virendra Kumar (D.W. 2) in his evidence.

“On  31.10.1997  I  was  posted  at  M.O.  at Chandankiyari.   On  that  day  at  9.30  p.m.  I examined  Ravishwar  Manjhi  s/o  Berga  Manjhi P.S.Chandankiyari,  District  Bokaro  and  found following injuries: 1) Incised wound 1 ½” x  1/6” x 1/6” over left

palm ventrally below (illegible) of thumb by sharp cutting substance.  

2) Scratches at four places over both sides of back and upper portions due to sharp cutting instrument 6” and 5”

3) Incised wound at two places over right palm posteriorly 4” x ½” x 1” deep and 2” x ¼” x ¼” by sharp cutting instrument.  

4) Age within 12 hours.  1 and 2 simple and 3 grievous.  

On the  same day I  examined  Jaleshwar  Manjhi, w/o  Berga  Manjhi  of  same  village  and  found following injuries. 1) Incised  wound  at  two  places  over  head

posterior  and  interior  by  sharp  cutting substance 3” x ½” x skin deep over top of head posteriorly.   

2) 2” x ¼” x skin deep over front head. 3) Complain  of  pain  on  whole  body  without

illegible.  Injury with 12 hours simple.  

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The patient Ravishwar Manjhi was referred for X- ray and on receipt  of the report  both injuries  on palm were found to be grievous.

23. The injuries being grievous in nature, the prosecution owed a duty to

explain the same.   

It is unfortunate that the High Court did not take serious notice of the

nature of injuries suffered by the appellants, relying on the decision of this

Court in  Ayodhya    Ram alias Ayodhya Prasad Singh and Ors  . vs. State of

Bihar [(1999) 9 SCC 139], wherein only minor injuries were suffered by the

accused persons.   

24. Out of  seven eyewitnesses,  P.W. 7 was not  believed by the courts

below. P.Ws. 4 and 5 were not present exactly at the place of occurrence.

They are said to have witnessed only a part of the occurrence.  All other

eyewitnesses were related to the deceased.  However, we do not hesitate to

add that only on that ground their evidences should not be disbelieved.   

Furthermore, there was no enmity between the parties.  Only a case

under Section 107 of the Code of Criminal Procedure was pending against

them.  Even in respect thereof, no documentary evidence was brought on

record to show as to when the said proceeding was initiated and at whose

instance. The prosecution witnesses merely supported the prosecution case

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that a death had taken place and two witnesses suffered grievous injuries but

it  was absolutely necessary in the facts and circumstances of this case to

show that  the  accused  were  the  aggressors.   It  was  for  that  reason  the

genesis of the prosecution case must be held to have grave significance.

25. The very fact that the appellants had gone back to their house to come

out with arms and caused injuries on the person of the deceased and injured

persons may or may not be correct, but even accepting the prosecution case

to be correct, evidently the prosecution party also went to their house and

brought weapons from their house.  If it is accepted that the appellants were

armed  with  such  deadly  weapons,  it  must  also  be  accepted  that  the

prosecution witnesses would also be armed with such weapons.  It is, inter

alia, for this reason the production of ‘Sanha’ entry was necessary.  We are

not  oblivious of the fact  that a mere information received on phone by a

Police Officer without any details as regards the identity of the accused or

the  nature  of  injuries  caused  by the  victims  as  well  as  the  name of  the

culprits  may not  be treated as FIR, but had the same been produced, the

nature of information received by the police officer would have been clear.

It is  interesting to  note that  the High Court  in its  judgment recorded the

following:

“The  explanation  given  by  the  prosecution witnesses that they could not notice the injuries, if

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any, on the person of the above named appellants on  account  of  the  fact  that  they  themselves  had sustained  injuries  and  one  of  their  own  having sustained fatal injuries had died at the spot and the assault continued hardly for less than five minutes whereafter the assailants had fled away, appears to be a reasonable explanation as far as the injured witnesses are concerned.  This, however, does not apply to the other eye witnesses, since they had an opportunity to see the entire occurrence from the beginning to end.  From the evidence adduced by the prosecution and that by the defence, it appears that  both sides had indulged in a free fight  with each other  in course of  which,  members of  both the parties had sustained injuries.  In the FIR of the  counter  case  instituted  by  the  appellant Ravishwar Manjhi, a feeble attempt to explain the injuries found on the person of the members of the prosecution party has been made.  It is contended that it was in exercise of right of private defence by  the  appellants  while  resisting  the  advances made by the deceased that some injuries may have been caused to the deceased and other members of his family.”

26. If there was a free fight which might have taken place and where both

the parties were armed with deadly weapons and suffered injuries, all the

appellants could not have been convicted under Section 302 of the Indian

Penal Code.  The entire case should have been viewed by the courts below

from that angle.  The case was required to be considered in the light of the

defence case. The High Court opined that the deceased was accosted by the

appellant  not  in their  house,  but  outside their  house on the road is  not  a

matter  of  moment,  particularly  when  the  High  Court  itself  recorded  that

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house  of  the  deceased  Nagender  Nath  Das  and  that  of  the  appellant

Ravishwar Manjhi were opposite to each other with a road (alley) dividing

the same.  If the dead body was lying on the alley, it  matters little  as to

whether it was in front of the house of the appellant or the deceased.   

27. The plea of the appellants as regards exercise of the right of private

defence has been negatived by the High Court only on the ground that the

right  to  private  defence  had  ceased  immediately  after  the  deceased  had

retreated from their house.   But what has not been considered is the causa

causan of the incident.  

Whether the outraging of modesty of a female member of the family

of the accused was the reason giving rise to the occurrence is a question

which should have been considered.  If that be so, it was for the prosecution

to prove that attempt on the part of the appellants to cause injuries was not

as a result of previous enmity but for a different purpose.   

If the allegations made in the FIR that the appellants were drunk was

correct, it was obligatory on the part of the P.W. 17 and consequently the

Investigating Officer to get the said fact established.  Medical evidence does

not suggest the same. This aspect of the matter was not brought to the notice

of the Doctor treating the accused.  There were, thus, two versions.  Both

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were  probable  and if  that  be  so,  the  plea  of  exercise  of  right  of  private

defence raised by the appellant deserved serious consideration.   

28. There was no material brought on records to show that the appellants

were the aggressors.  If everything had happened within a short span of time

as  is  alleged  by  the  prosecution,  namely,  the  appellants  were  causing

nuisance  which  was  objected  to  by  the  deceased;  they  went  to  their

respective houses; came armed and started assaulting the deceased and other

injured persons, it was also necessary for the prosecution to prove as to how

accused persons received injuries.  It is now a well settled principle of law

that the accused can show that they were entitled to exercise right of private

defence from the materials on records brought by the prosecution.   

29. The  places  where  the  injuries  had  been  inflicted  also  assume

significance.  If the prosecution witnesses are to be believed, the first injury

was caused on hand.  It was thereafter injuries were caused on other parts of

the person of the prosecution witnesses and the last injury was caused by

‘tenta’.   

In  Chanan Singh  vs.  State of  Punjab [(1979) 4 SCC 399, this Court

held:  

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“It is true that the defence case also has not been accepted  by the  High  Court  but  once  there  is  a probability  of  the  accused  having  acted  in  self- defence,  that  is  sufficient  to  entitle  him  to  an acquittal.”

In Bishna Alias Bhiswadeb Mahato & ors.  vs. State of W.B. [(2005)

12 SCC 657], this Court  noticed that a right  of private defence need not

specifically be taken and in the event the court on the basis of the materials

placed on record is in a position to come to such a conclusion, the court may

act thereupon.  It was held:    

“74.  'Right  of  private  defence'  is  not  defined. Nothing is an offence in terms of Section 96 of the Indian Penal Code, if it is done in exercise of the right of private defence. Section 97 deals with the subject matter of private defence. The plea of right of private defence comprises the body or property. It, however, extends not only to person exercising the right; but to any other person. The right may be exercised in the case of any offence against the body and in the case of offences of theft, robbery, mischief or criminal trespass and attempts at such offences in  relation to  property. Sections  96 and 98 confer a right of private defence against certain offences and acts. Section 99 lays down the limit therefor.  The  right  conferred  upon  a  person  in terms  of  Section  96  to  98  and  100  to  106  is controlled by Section 99.  In terms of Section 99 of  the  Indian  Penal  Code,  the  right  of  private defence, in no case, extends to inflicting of more harm than it is necessary to inflict for the purpose of defence. Section 100 provides that the right of private  defence  of  the  body  extends  under  the restrictions mentioned in the last preceding section to the voluntary causing of death or of any other

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harm  to  the  assailant  if  the  offence  which occasions the exercise of the right be of any of the descriptions  enumerated  therein,  namely,  "First  - Such  an  assault,  as  may  reasonably  cause  the apprehension  that  death  will  otherwise  be  the consequence of such assault; Secondly - Such an assault as may reasonably cause the apprehension that  grievous  hurt  will  otherwise  be  the consequence of such assault". To claim a right of private defence extending to voluntary causing of death,  the  accused  must  show  that  there  were circumstances  giving  rise  to  reasonable  grounds for apprehending that either death or grievous hurt would be caused to him. The burden in this behalf is on the accused.”

30. Yet again in Surendra & Anr. v. State of Maharashtra [(2006) 11 SCC

434], this Court held:

“26. We are not unmindful of the fact that in all circumstances  injuries  on  the  person  of  the accused  need  not  be  explained  but  a  different standard  would  be  applied  in  a  case  where  a specific plea of right of private defence has been raised.  It may be true that in the event prosecution discharges its  primary burden of proof,  the onus would shift on the accused but the same would not mean that  the  burden can be discharged only by examining defence witnesses.   27. The  learned  courts  below  committed  a manifest  error  of  law  in  opining  that  the Appellants  had  not  discharged the  initial  burden which is cast on them.  Even such a plea need not be specifically raised.  The Courts may only see as to whether the plea of exercise of private defence was probable in the facts and circumstances of the case.  

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32. In  regard  to  the  duty  of  the prosecution to explain the injuries on the part of the accused, this Court observed:

‘78. Section  105  of  the  Evidence Act casts the burden of proof on the accused who sets up the plea of self- defence and in the absence of proof, it may not  be possible  for  the court  to presume the correctness or otherwise of the said plea. No positive evidence although is required to be adduced by the accused; it is possible for him to prove  the  said  fact  by  eliciting  the necessary  materials  from  the witnesses  examined  by  the prosecution. He can establish his plea also  from  the  attending circumstances, as may transpire from the  evidence  led  by  the  prosecution itself. 79. In a large number of cases, this Court,  however,  has  laid  down  the law  that  a  person  who  is apprehending  death  or  bodily  injury cannot weigh in golden scales on the spur of the moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were  armed  with  weapons.  In moments of excitement and disturbed equilibrium  it  is  often  difficult  to expect  the  parties  to  preserve composure  and  use  exactly  only  so much  force  in  retaliation commensurate  with  the  danger apprehended to him where assault  is imminent  by  use  of  force.  All circumstances  are  required  to  be viewed  with  pragmatism  and  any hypertechnical  approach  should  be avoided.

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80. To put it simply, if a defence is made out, the accused is entitled to be acquitted  and  if  not  he  will  be convicted  of  murder.  But  in  case  of use of  excessive  force,  he would be convicted under Section 304 IPC.”

31. In Satya Narain Yadav v. Gajanand & Anr. [2008 (10) SCALE 728],

this Court held:

“14. As  noted  in  Butta  Singh  v.  The  State  of Punjab  (AIR  1991  SC  1316),  a  person  who  is apprehending death or bodily injury cannot weigh in golden scales in the spur of moment and in the heat  of  circumstances,  the  number  of  injuries required to disarm the assailants who were armed with  weapons.   In  moments  of  excitement  and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly  only  so  much  force  in  retaliation commensurate  with  the  danger  apprehended  to him where assault is imminent by use of force, it would be lawful to repel the force in self-defence and  the  right  of  private  defence  commences,  as soon  as  the  threat  becomes  so  imminent.   Such situations have to be pragmatically viewed and not with  high-powered  spectacles  or  microscopes  to detect slight or even marginal overstepping.  Due weightage has to be given to, and hyper technical approach has  to  be avoided  in  considering  what happens on the spur of the moment on the spot and keeping  in  view  normal  human  reaction  and conduct, where self-preservation is the paramount consideration.  But, if the fact situation shows that in  the guise  of  self-preservation,  what  really has been done is to assault the original aggressor, even after  the  cause  of  reasonable  apprehension  has disappeared,  the  plea  of  right  of  private-defence can legitimately be negatived.  The Court dealing with the plea has to weigh the material to conclude

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whether the plea is acceptable.  It is essentially, as noted above, a finding of fact.”

32. We may  notice  that  the  learned  Sessions  Judge,  while  examining

Jaleshwar Manjhi,  did not put  any question to him as to  whether  he had

killed the deceased or assaulted anybody.  

33. For  the  reasons  aforementioned,  we  are  of  the  opinion,  that  it  is

possible for the court to arrive at the conclusion that the appellants were

entitled to exercise their right of private defence.  The appeal is allowed.

Ravishwar Manjhi (accused No. 5), Jaleshwar Manjhi (accused No. 6) and

Kala Chandra Manjhi (acused No.3) who are in custody are directed to be

set at liberty and released forthwith unless wanted in connection with any

other case.   

The bail bonds of Santu Manjhi (accused No. 4) and Umakant Rajak

(accused No. 1) shall stand discharged.  

……………….…..………….J. [S.B. Sinha]

..………………..……………J. [Cyriac Joseph]

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NEW DELHI DECEMBER 12,  2008

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