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.

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 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;

(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 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.

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  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- 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  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:

(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 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.  

(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.   

(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.   

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:

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 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 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.  

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 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 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 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  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:  

“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 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.  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. 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  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]

NEW DELHI

DECEMBER 12,  2008

ITEM NO.1D                   COURT NO.4                SECTION IIA (For Judgment)                            RECORD OF PROCEEDINGS               S U P R E M E   C O U R T   O F   I N D I A

CRIMINAL APPEAL NO. 2020  OF 2008 (Arising out of SLP(Crl.) No. 2276/2007)

RAVISHWAR MANJHI & ORS. Appellant(s)

                       VERSUS

STATE OF JHARKHAND Respondent(s)

Date: 12/12/2008 This matter was called on for pronouncement  of Judgment today.

For Appellant(s) Mr. Anand, Adv. Mr. Azim H. Laskar, Adv.

Mr. Abhijit Sengupta,Adv.

For Respondent(s) Mr. Ratan Kumar Choudhuri,Adv.

Hon'ble  Mr.  Justice  S.B.  Sinha  pronounced  the  Judgment  of  the  Bench

comprising of His Lordship and Hon'ble Mr. Justice Cyriac Joseph.

Leave granted.

For the reasons mentioned in the singed judgment, the appeal is allowed.

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

Chandra Manjhi (accused 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.

(A.S. BISHT)           (PUSHAP LATA BHARDWAJ)   COURT MASTER                      COURT MASTER

 (Signed reportable judgment is placed on the file)