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CASE NO.: Appeal (crl.)  331 of 1997

PETITIONER: Shriram                                                          

RESPONDENT: State of Madhya Pradesh                                  

DATE OF JUDGMENT: 24/11/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT,J

       The appellant along with seven others faced trial for alleged  commission of offence punishable under Sections 147, 302 and 323 of the  Indian Penal Code, 1860 (for short the ’IPC’). The appellant was found  guilty of offence punishable under Sections 147 and 302 IPC. Other seven  persons were found guilty for offences punishable under Sections 147,  302 read with 149 IPC. Accused Mangilal, Durilal, Bhagatram and Ganpat  were also found guilty of offence punishable under Section 323. All were  also found guilty of offence punishable under Sections 147 and 302 read  with Section 149 IPC. The appellant was sentenced to undergo  imprisonment for life with several other custodial sentences. In appeal,  one Ganpat whose name did not appear in the first information report was  acquitted.  All other except appellant-Shriram were convicted under  Sections 304 Part II IPC and 323 read with 149 IPC and others were  convicted under Section 323 read and 149 IPC but were acquitted of the  offence punishable under Section 302 read with Section 149 IPC.  Custodial sentence of five years was imposed on the appellant-Shriram  with fine of Rs.5000/- with default stipulation. Because of passage of  time already spent in custody instead of custodial sentence, fine was  imposed on each one of the other accused.  During pendency of appeal  before the High Court one Chainram died and the appeal so far he is  concerned stood abated.   

In a nutshell the prosecution case as unfolded during trial is as  follows:

       On 4.9.1987 at about 8.00 p.m. informant Laxmansingh,  Piyarsingh,  Mansingh, Ghansi, Ratan, Machan Singh, Madan and Lalu had gone to the  house of Hemraj Mina (hereinafter referred to as ’deceased’) for  participation in a Bhajan on the festival of Dol-Gyaras.  After  participating in the Bhajan programme all of them were returning to  their village.  While returning as such, they were required to go  through a road which passes nearby the house of accused-appellant  Shriram Jat.  The moment they reached in front of his house, all the  accused persons and their associates including some women assaulted and  caused injuries to complainant party by lathi and stones.  One Ratan  escaped and went to Sarpanch Dulasingh and came along with him in a  jeep.  Laxmansingh, Piyarsingh, Ghansi, Mansingh Narain and Hemraj  sustained injuries.  Deceased Hemraj was seriously injured.         Information was lodged at the police station and injured witnesses  were examined.  The accused persons also claimed to have sustained  injuries and were also examined. According to accused persons, the  prosecution witnesses who claimed to have been injured were aggressor  since without any reason they started assaults and they pelted stones to

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protect themselves. Alternatively, it was pleaded that since fight took  place and specific roles were not attributed to any particular accused,  they were entitled to the benefit of doubt.  The trial Court after  considering material on record convicted the accused persons as noted  above. Appeal was preferred by the accused persons before the Madhya  Pradesh High Court.  

The High Court after consideration of the submissions made came to  hold that the accused persons were the aggressors and merely because  they claimed to have sustained injuries which were simple in nature,  this was not a case of free fight and they were rightly held guilty by  the trial Court.  However, considering the nature of the evidence  brought on record it was held that case under Section 302 IPC was not  made out and the same was altered to Section 304. The judgment is under  challenge in the present appeal.  

       Learned counsel for the appellant submitted that the witnesses PWs  2, 8, 9 and 11 were interested witnesses and related to the deceased  and, therefore, their evidence was partisan. Non-examination of  independent witnesses renders prosecution version unacceptable.   Moreover, the injuries on the accused persons were not explained and,  therefore, adverse inference should have been drawn.  

In response, learned counsel for the State submitted that the  evidence of eyewitnesses have been carefully analysed by the trial Court  and the High Court. As the defence took the plea of their relationship,  after carefully analyzing the evidence it has been found cogent and  credible and, therefore, the trial Court and the High Court were  justified in accepting the prosecution version.  Further, merely because  the accused persons have sustained minor injuries as is evident from  doctor’s evidence, that does not in any manner affect the prosecution  version. It was also submitted that the High Court has considered the  evidence and come to the right conclusion that the appellant was the  main architect of the crime and has been rightly convicted and  sentenced.  

So far as relationship of eyewitnesses, that they being  interested and/or the so-called familiarity with the deceased it does  not render per se their evidence suspect.  All that is required to be  done in such case is to carefully analyse the evidence and if after  deeper scrutiny it is found acceptable to act on it.  The trial Court  and the High Court have done it.  Nothing infirm would be pointed out as  to how the evidence suffers from any unreality or infirmity in law.   

       We shall next deal with the aspect relating to injuries on accused  and the question of right of private defence. The number of injuries is  not always a safe criterion for determining who the aggressor was.  It  cannot be stated as a universal rule that whenever the injuries are on  the body of the accused persons, a presumption must necessarily be  raised that the accused persons had caused injuries in exercise of the  right of private defence. The defence has to further establish that the  injuries found were suffered in the same occurrence and that such  injuries on the accused probabilise the version of the right of private  defence.  Non-explanation of the injuries sustained by the accused at  about the time of occurrence or in the course of altercation is a very  important circumstance.  But mere non-explanation of the injuries by the  prosecution may not affect the prosecution case in all cases.  This  principle applies to cases where the 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 credit- worthy, that it far outweighs the effect of the omission on the part of  the prosecution to explain the injuries. [See Lakshmi Singh v. State of  Bihar (AIR 1976 SC 2263)]. A plea of right of private defence cannot be  based on surmises and speculation.  While considering whether the right  of private defence is available to an accused, it is not relevant

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whether he may have a chance to inflict severe and mortal injury on the  aggressor. In order to find whether the right of private defence is  available to an accused, the entire incident must be examined with care  and viewed in its proper setting. Section 97 deals with the subject  matter of right of private defence. The plea of right comprises the body  or property (i) of the person exercising the right; or (ii) of any other  person; and 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. Section 99 lays down the limits of the right of private  defence. Sections 96 and 98 give a right of private defence against  certain offences and acts. The right given under Sections 96 to 98 and  100 to 106 is controlled by Section 99. 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 is on the accused to show that he had a right of private  defence which extended to causing of death. Sections 100 and 101, IPC  define the limit and extent of right of private defence.

       Sections 102 and 105, IPC deal with commencement and continuance  of the right of private defence of body and property respectively. The  right commences, as soon as a reasonable apprehension of danger to the  body arises from an attempt, or threat, or commit the offence, although  the offence may not have been committed but not until that there is that  reasonable apprehension.  The right lasts so long as the reasonable  apprehension of the danger to the body continues. In Jai Dev. v. State  of Punjab (AIR 1963 SC 612), it was observed that as soon as the cause  for reasonable apprehension disappears and the threat has either been  destroyed or has been put to route, there can be no occasion to exercise  the right of private defence.

In order to find whether right of private defence is available or  not, the injuries received by the accused, the imminence of threat to  his safety, the injuries caused by the accused and the circumstances  whether the accused had time to have recourse to public authorities are  all relevant factors to be considered. Similar view was expressed by  this Court in Biran Singh v. State of Bihar (AIR 1975 SC 87). (See:  Wassan Singh v. State of Punjab (1996) 1 SCC 458, Sekar alias Raja  Sekharan v. State represented by Inspector of Police, T.N. (2002 (8) SCC  354).

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 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 a finding of fact.

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       One of the pleas is that the prosecution has not explained the  injuries on the accused. 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 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 and Bharath Rai v. The State of Bihar (1968 (3) SCR  525), it was observed:

       "...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."

In another important case Lakshmi Singh and Ors. v. State of Bihar (1976  (4) SCC 394), after referring to the ratio laid down in Mohar Rai’s case  (supra), this Court observed:

               "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."

It was further observed that:

       "In a murder case, the non-explanation of the  injuries sustained by the accused at about the time  of the occurrence or in the 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 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."

In Mohar Rai’s case (supra) 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’s case (supra)  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 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

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by this Court in Vijayee Singh and Ors. v. State of U.P. (AIR 1990 SC  1459).

       Non-explanation of injuries by the prosecution will not affect  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 prosecution to  explain the injuries. As observed by this Court in Ramlagan Singh v.  State of Bihar (AIR 1972 SC 2593) prosecution is not called upon in all  cases to explain the injuries received by the accused persons.  It is  for the defence to put questions to the prosecution witnesses regarding  the injuries of the accused persons.  When that is not done, there is no  occasion for the prosecution witnesses to explain any injury on the  person of an accused.  In Hare krishna Singh and Ors. v. State of Bihar  (AIR 1988 SC 863), 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 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. In the case at hand, trifle and  superficial injuries on accused are of little assistance to them to  throw doubt on veracity of prosecution case.  

In view of the legal position highlighted above, there is no  substance in the plea relating to non-explanation of injuries on the  accused persons.  The High Court has rightly convicted the appellant  under Section 304 Part II IPC and sentence of 5 years imprisonment  cannot, by any stretch of imagination, be termed to be harsh. The appeal  fails and is dismissed.