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PETITIONER: JAGDISH

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT28/02/1979

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA REDDY, O. CHINNAPPA (J)

CITATION:  1979 AIR 1010            1979 SCR  (3) 428  1979 SCC  (2) 178  CITATOR INFO :  RF         1988 SC 863  (13,14)

ACT:      Penal Code-Sec. 302-Mutual assault-Injuries on the body of deceased  very severe-Injuries  on the  person of accused superficial-Conditions requisite  to prove  mutual  assault- What are.

HEADNOTE:      The appellant  and four  other accused who were charged with an  offence under  s. 302  IPC were  acquitted  of  the charge but  the appellant  alone was convicted and sentenced under s.  304 read with s. 34 IPC. Rejecting the view of the trial court  that since  some of the accused had injuries on their bodies  it was a case of mutual assault and that there was no  intention to  cause murder, the High Court convicted the appellant  under s.  302 IPC  and sentenced  him to life imprisonment.      Dismissing the appeal, ^      HELD :  The High  Court was  right in pointing out that the findings  of the  Sessions Judge  were not  based  on  a proper appreciation of evidence. The injuries on the persons of the  accused were  extremely  superficial  and  could  be easily explained.  The accused  had not established that the injuries on  their bodies  were sustained  in the  course of altercation which  resulted in the death of the deceased, so as to  lay the  burden on  the prosecution  to  explain  the presence of  the injuries.  Before this obligation is placed on the  prosecution two  conditions must  be satisfied viz., (i) that the injuries on the person of the accused were very serious and  severe and  not superficial  and (ii)  that the injuries had  been caused  at the  time of the occurrence in question. [429 A-H]      In the present case neither condition is satisfied. The injuries were extremely superficial and there was nothing to show that they were caused during altercation which resulted in the death of the deceasd. [430 A-B]

JUDGMENT:

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    CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 150 of 1972.      (From the  Judgment and  Order dated  3-3-1972  of  the Rajasthan High Court in D. B. Criminal Appeal No. 354/69 and S. B. Criminal Appeal No. 121/69).      L. N. Gupta, (A.C.) for the Appellant.      Sobhagmal Jain for the Respondent.      The Judgment of the Court was delivered by 429      FAZAL ALI,  J.-In this  appeal under  the Supreme Court (Enlargement of  Criminal Appellate  Jurisdiction), Act, the appellant was  convicted along  with other  accused  by  the Sessions Judge  under s.  304 Pt.  1 read  with s. 34 of the I.P.C. and  sentenced to  five years R.I. The State filed an appeal to  the High  Court  against  the  acquittal  of  the appellant under  s. 302  I.P.C. and  other accused. The High Court while  allowing  the  appeal  of  other  accused  also allowed the  appeal  of  the  State  against  the  appellant Jagdish and  set aside his acquittal under s. 302 I.P.C. and convicted him  under s. 302 I.P.C. and sentenced him to life imprisonment. We  have gone through the judgment of the High Court which  has given  cogent reasons  for holding that the Trial Court  Judge was  absolutely wrong  in acquitting  the appellant of  the charge  under s.  302 I.P.C.  The injuries found on  the deceased  were very  severe which  resulted in fracture of  the scalp  on the left perietal bone and also a fracture of  the temporal  bone. These were the two injuries which according  to the  prosecution were  the cause  of the death of  the deceased Jairam. The Sessions Judge was of the opinion that  as  some  of  the  accused  persons  had  also injuries it  was a  case of  mutual assault  and  therefore, there was  no intention  to cause murder. The High Court has rightly pointed  out that the findings of the Sessions Judge are not  based on  a proper appreciation of the evidence. It is true that the accused had some injuries on their persons. The injuries on their persons were extremely superficial and could be easily explained. As regards Nanda, it is true that he had  five injuries  out of which two are contused wounds. It was  the evidence of D.W. 1 that he examined the injuries on 25-6-67 i.e. two to four days after the occurence. It has not been  proved that all the injuries sustained by him were sustained in the course of altercation which resulted in the death of  the deceased,  so as  to lay  the  burden  on  the prosecution to  explain the presence of these injuries. Even the contusions  are not  of serious  nature. 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;           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. 430 In the instant case, none of these conditions are satisfied. The injuries  are extremely superficial and there is nothing to show  that they  were caused during the altercation which resulted in  the  death  of  the  deceased.  Having  regard, therefore,  to  the  circumstances  of  the  case,  we  find ourselves in  complete agreement  with the view taken by the

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High Court  in convicting  the appellant under s. 302 I.P.C. We find no force in this appeal. It is dismissed. N. K. A.                                   Appeal dismissed. 431