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CASE NO.: Appeal (crl.)  132 of 2008

PETITIONER: Shaikh Majid  and Anr

RESPONDENT: State of Maharashtra and Ors

DATE OF JUDGMENT: 21/01/2008

BENCH: Dr. ARIJIT PASAYAT & AFTAB ALAM

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.   132 OF 2008 (Arising out of S.L.P.(Crl.) No.2809 of 2007)

DR. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the judgment of the  Division Bench of the Bombay High Court at Aurangabad,  dismissing the appeal filed by the appellants.  By a common  judgment two appeals were disposed of.  Both the appeals  were directed against the judgment and order passed by  learned Third Additional Sessions Judge, Aurangabad, in  Sessions Case No. 39 of 1990. Originally there were 37  accused persons in the Sessions Case who faced trial for  offences punishable under Sections 302, 307, 395, 436, 324,  323, 147, 148 and 149 of the Indian Penal Code, 1860 (in  short the ’IPC’), Section 25 of the Indian Telegraph Act,   (in  short the ’Telegraph Act’) and Section 3 of Prevention of  Damage to Public Properties Act, 1984 (in short the ’Public  Property Act’) and Sections 3 and 4 of the Religious  Institutions (Prevention of Misuse) Act, 1988 (in short the  ’Religious Institutions Act’).  Learned Trial judge convicted the  present appellants who were accused Nos.1 and 26  respectively for the offences punishable under Section 302  read with Section 34 and Section 324 read with Section 34  IPC.  Imprisonment for life and fine of Rs.1,000/- with default  stipulations and three years imprisonment and fine of  Rs.1,000/- with default stipulation were imposed.  Appellant  No. 2-Shaikh Abbas was also convicted for offences  punishable under Section 452 read with Section 149 IPC and  was sentenced to five years’ rigorous imprisonment and fine of  Rs.1000/- with default stipulation.  He was also convicted for  offences punishable under Section 435 read with Section 149  IPC, and for offences punishable under Section 323 read with  Section 149 IPC. The sentences were directed to run  concurrently and it was further directed that in case the fine  amount was realized, part of it, i.e. Rs.10,000/-, was to be  paid to the widow of Jaynarayan (hereinafter referred to as the  ’deceased’).  Three prosecution witnesses were also directed to  be paid compensation of Rs.1,000/-.  Law was set into motion  on the basis of the statement given by the one Krishna (PW4),  Sandu, Police Inspector (PW-11), recorded the statement  which was treated as the First Information Report (in short the  ’FIR’).  The information given by him was to the following  effect:

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"Krishna PW4 has alleged in the first  information report Exhibit 63 that the  occurrence in the question took place on  10.10.1989.  On that day at about 4 P.M., he  along with about 200 villagers had been to a  temple for darshana and also for performing  pooja on the even of Deshara festival.  All of  them went to temple and Shami tree near the  cremation ground on the outskirts of village  Balanagar, Tq. Paithan. As usual, the villagers  had been to the place of pooja in a procession  with drums etc. After pooja they entered the  gate of village (Ves) and had been to the Ram  and Maroti temples for offering their prayers.  At this time, about 250-300 people from  mosque, adjacent to Ram temple, had started  pelting stones at them. While pelting stones  they were exhorting that it was a time for  offering prayer (Namaz) and therefore, these  people should leave the place immediately.   Krishna PW4, deceased Jaynarayan,   Pandharinath, Babasaheb and other villagers  have noted the presence of about 3-32 accused  persons. According to them, these 32 accused  persons along with 200-250 persons assaulted  them with sticks, stones, knives etc. the  assault was on the people belonging to Hindu  religion.  PW 4 Krishna had been assaulted by  accused No. l Shaikh Majid and accused No.26  Shaikh Abbas with knives. Such assault was  on his right hand and below shoulder, on right  shoulder as well as in the stomach.  He  suffered wounds.  Such stabbing is suffered by  Ranganath, Laxman, Harichand, Gorakh,  Hanuman, Uttarm, Bhausaheb, Badri Narayan  and Dr. Gopi Kisan as well as Laxman  Shamrao.  Other persons also sustained  serious injuries.

3.      As noted above, on the basis of information given by  Krishna, (PW-4) case was registered under Sections 307,147,  148, 149 and 323 IPC.  Investigation was undertaken and on  completion thereof charge sheet was filed.  At this juncture, it  is to be noted that another FIR was lodged at about 6 p.m. by  appellant \026accused No.1 against Krishna (PW4) and others.  Charge sheet thereafter was filed. Undisputedly, there was  order of acquittal in the said case.  The trial Court placing  reliance on the evidence adduced, held present appellants  guilty of offence committed punishable under Section 302 read  with Section 34 IPC.  They were also found guilty of having  committed offence punishable under Section 324 in relation to  the injury caused to Krishna PW4.  As noted above, appellant- Shaikh Majid was also convicted under various other  provisions.  The stand of the appellants before the High Court  was that the evidence of the so called eye witnesses PWs. 4, 5,  6 & 7 was not consistent.  Only one blow was given and that  in course of a sudden quarrel, injuries were sustained by the  accused persons.  The prosecution has, therefore, suppressed  the truth.  The plea was not accepted and as noted above their  appeal was dismissed.  

4.      The stand taken by the appellant before the High Court  was reiterated.  

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5.      Learned counsel for the State supported the judgment of  the trial Court as affirmed by the High Court.  6.     One of the pleas is that the prosecution has not  explained the injuries on the accused. The issue is, if there is  no such explanation what would be its effect? We are not  prepared to agree with the learned counsel for the defence that  in each and every case where the prosecution fails to explain  the injuries found on some of the accused, the prosecution  case should automatically be rejected, without any further  probe. In Mohar Rai v. State of Bihar (AIR  1968 SC 1281)   it  was observed: (AIR p.1284, para 6)  "In our judgment the failure of the prosecution  to offer any explanation in that regard shows  that evidence of the prosecution witnesses  relating to the incident is not true or at any  rate not wholly true. Further those injuries  probabilise the plea taken by the appellants."  

7.      In another important case Lakshmi Singh v. State of Bihar  (1976 (4) SCC 394) after referring to the ratio laid down in  Mohar Rai case  (supra)  this Court observed: (SCC p.401, para  12):  "Where the prosecution fails to explain the  injuries on the accused, two results follow: (1)  that the evidence of the prosecution witnesses  is untrue; and (2) that the injuries probabilise  the plea taken by the appellants."  

8.      It was further observed that: (SCC p.  401, para 12)  "In a murder case, the non-explanation of the  injuries sustained by the accused at about the  time of the occurrence or in the course 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 omission on the part of the prosecution to  explain the injuries on the person of the  accused assumes much greater importance  where the evidence consists of interested or  inimical witnesses or where the defence gives a  version which competes in probability with  that of the prosecution one."   9.     In Mohar Rai case it is made clear that failure of the  prosecution to offer any explanation regarding the injuries  found on the accused may show that the evidence related to  the incident is not true or at any rate, not wholly true.  Likewise in Lakshmi Singh case, it is observed that any non- explanation of the injuries on the accused by the prosecution  may affect the prosecution case. But such a non-explanation  may assume greater importance where the defence gives a  version which competes in probability with that of the  prosecution. But where the evidence is clear, cogent and

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creditworthy and where the court can distinguish the truth  from falsehood, the mere fact that the injuries are not  explained by the prosecution cannot by itself be a sole basis to  reject such evidence, and consequently, the whole case. Much  depends on the facts and circumstances of each case. These  aspects were highlighted by this Court in Vijayee Singh v.  State of U.P. (1990 (3) SCC 190).  10.     Non-prosecution of 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 outweighs the  effect of the omission on the part of the prosecution to explain  the injuries. As observed by this Court in Ramlagan Singh v.  State of Bihar (1973 (3) SCC 881) 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 on the accused  persons. When that is not done, there is no occasion for the  prosecution witnesses to explain any injury on the person of  an accused. In Hare Krishna Singh v. State of Bihar (1988 (2)  SCC 98), it was observed that 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. If the witnesses examined on behalf of the  prosecution are believed by the court in proof of guilt of the  accused beyond reasonable doubt, question of obligation of the  prosecution to explain 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  under what circumstances injuries have been inflicted on the  person of the accused. It is more so when the injuries are  simple or superficial in nature.  11.     The residual question is the applicability of Section 302  IPC. As noted above it was submitted that only one blow was  given and that too in the course of a sudden quarrel.

12.     In essence, the stand of learned counsel for the appellant  is that Exception IV to Section 300 IPC would apply to the  facts of the case.      

13.     For bringing in operation of Exception 4 to Section 300  IPC, it has to be established that the act was committed  without premeditation, in a sudden fight in the heat of passion  upon a sudden quarrel without the offender having taken  undue advantage and not having acted in a cruel or unusual  manner.    14.     The Fourth Exception to Section 300 IPC covers acts  done in a sudden fight. The said Exception deals with a case of  prosecution not covered by the First Exception, after which its  place would have been more appropriate. The Exception is  founded upon the same principle, for in both there is absence  of premeditation. But, while in the case of Exception 1 there is  total deprivation of self-control, in case of Exception 4, there is  only that heat of passion which clouds men’s sober reason and  urges them to deeds which they would not otherwise do. There  is provocation in Exception 4 as in Exception 1; but the injury  done is not the direct consequence of that provocation. In fact  Exception 4 deals with cases in which notwithstanding that a  blow may have been struck, or some provocation given in the

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origin of the dispute or in whatever way the quarrel may have  originated, yet the subsequent conduct of both parties puts  them in respect of guilt upon equal footing. A "sudden fight"  implies mutual provocation and blows on each side. The  homicide committed is then clearly not traceable to unilateral  provocation, nor in such cases could the whole blame be  placed on one side. For if it were so, the Exception more  appropriately applicable would be Exception 1. There is no  previous deliberation or determination to fight. A fight  suddenly takes place, for which both parties are more or less  to be blamed. It may be that one of them starts it, but if the  other had not aggravated it by his own conduct it would not  have taken the serious turn it did. There is then mutual  provocation and aggravation, and it is difficult to apportion the  share of blame which attaches to each fighter. The help of  Exception 4 can be invoked if death is caused ( a ) without  premeditation; ( b ) in a sudden fight; ( c ) without the offender  having taken undue advantage or acted in a cruel or unusual  manner; and ( d ) the fight must have been with the person  killed. To bring a case within Exception 4 all the ingredients  mentioned in it must be found. It is to be noted that the "fight"  occurring in Exception 4 to Section 300 IPC is not defined in  IPC. It takes two to make a fight. Heat of passion requires that  there must be no time for the passions to cool down and in  this case, the parties have worked themselves into a fury on  account of the verbal altercation in the beginning. A fight is a  combat between two or mo re persons whether with or without  weapons. It is not possible to enunciate any general rule as to  what shall be deemed to be a sudden quarrel. It is a question  of fact and whether a quarrel is sudden or not must  necessarily depend upon the proved facts of each case. For the  application of Exception 4, it is not sufficient to show that  there was a sudden quarrel and that there was no  premeditation. It must further be shown that the offender has  not taken undue advantage or acted in cruel or unusual  manner. The expression "undue advantage" as used in the  provision means "unfair advantage".  15.     The above position is highlighted in Sandhya Jadhav v.  State of Maharashtra (2006) 4 SCC 653).   16.     It cannot be said that whenever a single blow is given,  that would not attract Section 302 IPC.   

17.     In the instant case considering the background facts and  the nature of the weapon used i.e. small knife the appropriate  conviction would be under Section 304 Part I IPC and not  Section 302 IPC.  Accordingly the conviction is altered,  custodial sentence of ten years would suffice.

18.     The appeal is allowed to the aforesaid extent.