Onkarnath Singh & Ors Vs. The
State of U. P  INSC 94 (15 April 1974)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
BEG, M. HAMEEDULLAH
CITATION: 1974 AIR 1550 1975 SCR (1) 80
R 1979 SC 387 (9) RF 1988 SC 863 (12)
Criminal Trial--Faiture to give explanation
by prosecution witnesses of injuries on the accused--It total to prosecution
Private defence---Right of.--
The fact of the non-explanation of the
injuries on the accused person is a question of fact and not of law. Answer to
such a question depends on the circumstances of each case. The entire
prosecution case cannot be thrown overboard simply because the prosecution
witnesses had not explained the injuries on the person of the accused. Such
non-explanation is a factor which is to be taken into account in judging the
veracity of the prosecution witnesses and the Courts would scrutinise their
evidence with care.
Each case presents its own features. In some
cases the failure of the prosecution to account for the injuries of the accused
may undermine its evidence to the core and falsify the substratum of its story
while in others it may have little or no adverse effect on the persecution
case. It may also in a given case strengthen the plea of private defence set up
by the accused but it cannot be laid down as an invariable proposition of law
that as soon as it is found that the accused had received injuries in the same
transaction in which the complainant party was assaulted the plea of private
defence would stand prima facie established.
In every case, the question is' really one of
appraisal of total evidence and its effect. In the instance case, the totality
of the evidence on record neither establishes even with reasonable possibility
a right of private defence in favour of the appellants nor throw a cloud of
doubt on the prosecution case. A right of private defence is essentially one of
defence or self protection and not a right of reprisal or punishment. It is
subject to the restrictions indicated in section 99 which are as important as
the right itself. [89 1-H; 92 G-H]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 100 of 1971.
Appeal under Section 2(a) of the Supreme
Court Enlargement of Criminal Appellate Jurisdiction Act, 1970. Act 28 of 1970
from the Judgment and Order dated the 24th March, 1971 of the Allahabad High
Court in Government Appeal No. 449 of 19671.
Nuruddin Ahmed & Shiva Pujan Singh, for
the Appellants Nos.1 & 2.
V. K. Krishna Menon, K.- R. Nambiar, Shiva
Pujan Singh and R. K. Garg, for the appellants Nos. 3, 4 & 5.
D. P. Uniyal and O. P. Rana, for the
The Judgment of the Court was delivered by
SARKARIA, J.-This appeal is directed against the judgment, dated March 24,
1971, of the High Court of Judicature at Allahabad convicting the appellants,
by reversing their acquittal, on charges under ss. 302, 307 read with s. 149
and 148, Penal Code.
The prosecution case was that on May 18,
1965, at about 10 a.m., Girja Singh (P. W. 11) and Sidh Nath (P. W. 8) were
proceeding to the Ganga for a bath which runs at a distance of one mile 81 from
their village Tarapur. Onkarnath, appellant met them coming from the opposite
direction. He asked sidh Nath as to why he was walking chest high. Sidh Nath
replied that there was nothing abnormal in his gait. Onkarnath appellant then
slapped Sidh Nath and roughly handled him. Girja Singh intervened and
remonstrated. Onkarnath Singh slapped him, also.
Girja Singh was joint in residence and mess
with his cousins, Jagdish Narain Singh (P. W. 1) and Deep Narain Singh deceased
Jagdish Narain was employed _ in the Engineering College of the Benaras
University, and Deep Narain in 'the Diesel Locomotives Works, Varanasi. The
places of their work being only four or five miles from this village, they used
to return home daily after working hours.
On the day of occurrence, (May 18, 1965),
when Deep Narain returned home at about 4-30 p.m. Girja Singh complained to him
how Onkarnath had beaten him without any rhyme and reason. Deep Narain Singh
assured him that he would censure and correct Onkarnath appellant. When Jagdish
Narain (P.W. 1) reached home at about 4-45 p.m., Deep Narain told him how
Onkarnath had beaten Girja Singh at about noon.
Thereafter, the two brothers Jagdish Narain
and Deep Narain proceeded together to their cotton field situated towards the
east of the village. About 4-45 p.m., when they were coming back from the
field, near the Darwaza of Hanuman Prasad Singh they met Onkarnath and Chhabi
Nath appellants conversing with Ram Asrey (Primus) son of Gauri Shankar.
Deep Narain asked Onkarnath as to why he had
beaten Girja Singh. Onkarnath insolently replied that he had done so;
that he would rePeat the. feat and would see
what he (Deep Narain) could do. A scuffle ensued. Onkarnath grappled with Deep
Narain and Chhabi Nath with Jagdish Narain. Deep Narain and Jagdish Narain
being stronger threw and pinned down their adversaries to the ground. In the
meanwhile Ram Asrey (Secondus) son of Jang Bahadur arrived. Ram Asrey Secondus
and Ram Asrey Primus disengaged them. Both the parties then proceeded to their
respective houses. The deceased and his brother had hardly gone 70-80 paces and
reached near the Darwaza of Hanuman Prasad, when all the five appellants and
Amar Nath Singh, the acquitted accused, came there in a body and surrounded
them. Onkarnath was armed with a spear, Chbabi Nath with a gandasa. Basdeo
Singh and Gya Singh with lathis; while Parasnath Singh and Amar Nath Singh were
empty-handed. Basdeo Singh and Gya Singh struck Deep Narain with lathis while
Chhabi Nath hit him on the head with the gandasa. Onkarnath Singh plunged his
spear into the abdomen of Deep Narain. The alarm raised by the victims
attracted Vijai Bahadur Singh (P. W. 5), Hari Ram Pandey (P. W. 9) and Adit
Prasad Singh (P.W. 2) to the spot. These persons and Ram Asrey (Primus) shouted
to the appellants to desist. Chhabi Nath attempted gandasa blows on the head of
Jagdish Narain which the latter warded off on his hands Vijai Bahadur Singh
snatched away the gandasa from Chhabi Nath. The assailants 82 then ran I away
leaving Deep Narain and Jagdish Narain injured at the spot.
The injured were laid on cots and taken to
the Arar (cross- roads) of the village, for further removal to the hospital at
Varanasi. Deep Narain succumbed to his injuries at the Arar. His dead body was
left there while Jagdish Narain was sent further to S.S.P.G. Hospital in a
rickshaw. At the Arar, Adit Prasad Singh wrote the report, Exh Ka-1 and then
carried it to Bohania where he handed it over in the Police Station. There, on
its basis, a case under ss. 302/324, Penal Code was registered at 8-30 p.m.
Jagdish Narain was admitted to the S.S.P.G.
Hospital, Varanasi at 7-45 p.m. As his condition appeared to be serious, his
statement Exh.Ka-7 was recorded by the Magistrate in the Hospital, at 8-10
p.m., same day.
After registering the case, S. O. Mohd. Zubur
Khan (P. W.15), reached the spot at 11 pm. and started the investigation. He
found some blood and blood-stained tiles of an obsolete brick-kiln (awa) near
the Darwaza of Ram Kishore Singh. He took those tiles and blood-soakeld earth
into possession. He did not find any blood near the Darwaza of Hanuman Prasad
Singh. Vijai Bahadur produced the gandasa (Ext.P-1) and the investigating
officer took it into posses- sion. He recorded the statements of all the
material witnesses, and held the inquest on the same night and sent the dead
body for post mortem examination next morning. He searched for the accused but
could not find them.
Chhabi Nath was arrested from the Hospital of
Benaras University on May 18, 1965 at 9 p.m. The remaining accused were
proceeded. against under ss. 87/88 Cr.P.C. Onkarnath, Basdeo Singh and Gya
Singh surrendered in Court on May 26, 1965 and Paras Nath Singh and Amar Nath
Singh on May 27, 1965.
The autopsy was conducted by Dr. J. N. Bajpai
on May 19, 1965 at 11-30 a.m. There were four injuries on the dead body. Injury
No. 1 was an incised wound on the right side of head above the eye-brow. The
bone underneath was found cut. Injury 2 was a lacerated wound on the left side
of head. Injury 3 was another lacerated wound on the right hand. Injury 4 was a
punctured wound 1-1/4" X 3/4" going deep into the abdominal cavity. A
loop of intestine was protruding from the wound. Blood was coming out of the
Dr. S.D. Ohri found three incised wounds on
the person of Jagdish Naran Singh. Injury I was located on the left forearm and
the dersem of left-hand. Injury 2 on the right hand and Injury 3 also on the
right hand between the thumb and the index-finger.
Chhabi Nath appellant was examined by Dr. K.
P. Singh at the University Hospital on May 18, 1965 at 9 p.m. These injuries
were found on his person 83
1. Larerated injury scalp size 3" X 1/2
X :" in right frontoparietal bone about 3" above the right eye-brow.
2. Punctured wound in right elbow region on
the tip of the medical epicondyle 1/10" x 1/10".
3. Abrased contusion 4" X 1.5 " in
the left arm upper part 4" below the tip of the acromion.
4. Abrased contusion 1" X 2" in the
posterior aspect of left forearm 1.75" above the left ulnar styloid
Onkarnath appellant was examined by Dr. Udai
Singh on May 21, 1966 between 3-45 pm. and 4 p.m. and these injuries were found
on his person :
1. Scabbed abrasion 2" x 1-1/2" on
the back of right elbow.
2. Scabbed linear abrasion 3" on the
upper and outer part of right fore-arm.
3- Multiple small scabbed abrasions in an
area of 1" X 1/2" on the dorsem of the lower part of the right
fore-arm just above the right wrist-joint.
4. Scabbed abrasion 2" x 1" on the
inferior(?) angle of right accapula.
5. Scabbed abrasion 2" x 1/2" on
the second, third and fourth lumber spins.
Dr. Singh examined Parasnath appellant, also
and found two injuries. One was a scabbed abrasion on the lower and outer part
of left forearm just above the, left wrist-joint, and the other was a swelling
over the dorsem of the left hand. X-Ray examination revealed a fracture of the
head of the first metacarpal bone of the left hand under injury 2.
At the trial, Onkarnath and Chhabinath
admitted an incident but denied that it had taken place in the manner alleged
by the prosecution. Chhabinath stated "At about 6 p.m. (1) was inside my
Then I heard the alarm of my Baba, Deo Narain
Singh, which seemed to emanate from the Darwaza of Hanuman Prasad Singh.
Thereupon I ran to the Darwaza of Hanuman Prasad Singh, and saw Deep Narain and
Jagdish Narain beating Deo Narain Singh. I remonstrated with them.
Thereupon they started beating me. On being
beaten I fell down unconscious on the spat.
On regaining consciousness I found myself in
the University Hospital, where was arrested."' Onkarnath admitted that be
had on the day of occurrence at about 11 a.m. slapped Giria Singh, but added
that the reason for this slapping was that Girja Singh had taunted him, on his
failure to qualify in the examination.
He denied that he had slapped Sidh Nath. He
further stated 84 "On the same day at about 6 p.m. while I was going to
the Darwaza of Hanuman Prasad, Jagdish Narain and Deep Narain came from the western
direction having Gandasa and Lathi, respectively, and challenged me......
saying that they were giving me a taste for having beaten Girja Shankar.
Thereupon I raised alarm and wielded lathi in self-defence. In the meantime
accused Parasnath Singh arrived there and started snatching the Gandasa of
Jagdish Narain Singh. Accused Chhabinath also arrived at the scene of the
incident with spear. Accused Parasnath snatched the Gandasa from Jagdish Narain
Singh, Deep and Jagdish Narain started attacking accused Chhabinath Singh who
wielded his spear in self-defence.
Accused Parasnath Singh wielded the snatched
Gandasa in self-defence Accused Parasnath Singh left the gandasa on the spot.
Parasnath Singh Chhabinath Singh and I received the injuries in the marpit. We
got medically examined." The learned Additional Sessions Judge found that
the prosecution witnesses had not come out with a correct version as to how the
marpit started, and that they had failed to give a reasonable explanation for
the injuries found on the accused person. He therefore accorded the benefit of
doubt to the accused and acquitted them.
On appeal by the State, the High Court set
aside the acquittal and convicted the five appellants herein under s.
302 read with s. 149, Penal Code in respect
of the murder of Deep Narain and sentenced each of them to imprisonment for
life. The appellants were further convicted under s. 307 read with s.149, Penal
Code for the attempted murder of Jagdish Narain Singh and sentenced to seven
year's rigorous imprisonment, each. They were convicted under s. 148, Penal
Code, also. It was directed that the sentences would run concurrently. The
acquittal of Amar Nath singh, was, however, maintained. Hence this appeal by
the convicts under s.2(a) of the Supreme Court Enlargement of Criminal
Appellate Jurisdiction Act, 1970.
Mr. Nuruddin Ahmed, appearing on behalf of
Onkarnath and Chhabinath appellants, contends that the High Court had erred in
reversing the well considered judgment of the trial. It is stressed that the prosecution
had not given any explanation whatever of the injuries found on Onkarnath,
Chhabinath and Parasnath appellants and that the learned Judges of the High
Court had invented an explanation for those injuries which was nobody's case.
It is urged that Deep Narain and Jagdish Narain were the aggressors as they had
come with the avowed object of avenging the beating of their cousin, Girja
Singh. It is submitted that though the appellants in their examination under s.
342, Cr.P.C. had not come forward with a full and correct version yet it was
manifest that the injuries to the deceased and his brother Jagdish Narain were
caused in self-defence. In any case, maintains the Counsel, the circumstances
on record establish such a degree of probability in favour of this plea of
private defence that the entire prosecution case becomes doubtful, and in the
ultimate analysis, it must be held that the prosecution had failed to bring
home the charges to the appellants beyond doubt. It is further argued that, in
fact, there was only one occurrence 85 near the Darwaza of Ram Kishore Singh,
in the course of which, both sides received injuries, because the distance
between the Darwaza of Hanuman Prasad Singh and the Darwaza of Ram Kishore
Singh was hardly 70-80 paces (about 365-420 ft) and there was no appreciable
interval of time between the alleged grappling and the main occurrence. It is
also pointed out that in his statement recorded as "dying
declaration" (Ka-7) dated May 18, 1965. Jagdish Narain P.W.1 had not
specifically named Gya Singh and Basdeo Singh as two of the assailants-, and in
the F.I.R.. Adit Narain Singh (P.W.) did not mention the presence of Parasnath
and Amarnath at the scene at all. It is urged that these omissions show that
subsequent additions to the number of assailants had been made by the
Mr. R. K. Garg, appearing on behalf of
Basdeo, Parasnath and Gaya Singh appellants, contends that once it is found
that these injuries were caused by the complainant party in the same occurrence
or transaction, the prosecution must fail unless it proves, as a matter of law,
that those injuries were caused by the complainant party to the accused party
in the exercise of their right of private defence. Reference in this connection
has been made to certain observations, made by one of us (Beg J.) in Rishikesh
Singh and ors. v.The State(1).
In reply, Mr. Uniyal argues that the
reasoning of the learned trial Judge was manifestly erroneous and the High
Court was right in reversing the same. Learned Councel has referred to the
evidence of the medical officers who had examined the injuries of Chhabinath,
Onkarnath and Amar Nath, and pointed out that those injuries excepting one
injury on Parasnath were all superficial and could be easily fabricated; that
in any event, the injuries found on Chhabinath and Onkarnath were such that
could have been received by them in the course of the scuffle with Jagdish
Narain and Deep Narain. According to the Counsel, the twin circumstances,
namely, that Deep Narain and Jagdish Narain were unarmed and that the incident
of grappling and the main occurrence were separated by time and distance
clearly showed that no right of private defence had ever accrued to any of the
appellants, who deliberately attacked the deceased and his companion to avenge
their humiliation in the grappling. Attention has been invited to Onkarnath's
examination under s. 342, Cr.P.C. wherein an incident in front of the Darwaza
of Hanuman Prasad was admitted. The entire prosecution case, it is submitted,
could not be thrown out simply on the ground that the prosecution witnessess
did not explain the doubtful and superficial injuries of the appellants,
particularly when a plausible explanation is implicit in the vary story of
grappling propounded by the prosecution. In this connection, reference has been
made to Bankey Lal and Ors. v. State of U.P.(2) Munney Khan v. State of.M.P.(3)
and Kishan v. State of M.P.(4) At the outset, we may note that the case against
Parasnath Basdeo Singh and Amarnath accused was clearly distinguishable (1)
A.I.R. 1970 All 51(F B.) (2) A.T.R. 1971 S.C. 2233.
(3)  1 S.C.R. 943. (4) A.I.R. 1974 S.C.
86 from that of Onkaarath and Chhabinath
appellants. In the F.I.R. which Wm lodged by Adit Narain Singh, an eye-witness,
Parasnath Singh and Amar Nath Singh accused were not named at all. In the
so-called 'dying declaration Ex.Ka-7, which was recorded on May 18, 1965, in
the Hospital, Jagdish Narain Singh (P.W.) did not specifically name Basdeo
Singh and Gaya Singh among the assailants. of course he stated there that in
addition to the four accuse-d name therein, "his uncle etc." were
also there. It was argued by Mr.Uniyal. that the expression "uncle
etc". was meant to cover Gaya Singh and Basdeo Singh and that Jagdish
Narain could not specifically name all the assailants, nor give other material
details of the occurrence because he was in intense pain at that time.
Undoubtedly, there is some force in this argument. But in Ka-7 Jagdish Narain
clearly stated that "uncle etc." were not beating but were only
shouting. Tile fact remains that in his earliest statement Jagdish Narain PW
did not ascribe any part in the actual assault to Parasnath and Amarnath.
Amarnath's acquittal was maintained by the
High Court, because his participation "appears to be doubtful through he
was also present at the time of the incident". The reasoning was :
"He is not named in the First Information Report. He is said to have been
empty-handed. It was only in the 'dying-declaration' that it was said that he
was also with Chhabinath Singh. Furthermore, it has come in the prosedution
evidence that he and Parasnath Singh moved aside after Basdeo Singh and Gaya
Singh had given lathi blows".
But the benefit of the same doubt was not
given to Parasnath Singh because it was thought that his participation
"has been proved by the defence evidence and also by the fact that he had
received the injuries". With respect, this reasoning and the distinction
drawn on its basis appears to us to be entirely unsustainable. The prosecution
had to stand on its own legs; it could not take advantage of the weakness of
the defence. The injuries found on Parasnath were more compatible with the
conclusion that he was a victim rather than a participant in the assault.
Nor could 'Basdeo Singh and Gaya Singh be
denied the same benefit of doubt which was accorded to Amar Nath Singh.
They were not named even as associates of the
assailants by Jagdish Narain in Ex. Ka-7. In the F.I.R. Ex. Ka-29, Adit Narain
did not say that these two appellants 'had caused any injury to Deep Narain and
Jagdish Narain All that was said was that they exhorted Onkarnath and
Chhabinath to assault the deceased and his brother Jagdish. At the trial,
however, Adit Narain improved upon the F.I.R. and said that these two appellants
had also dealt lathi blows to the vic- tims. This improvement had to be
Thus, the case against Parasnath Singh,
Basdeo Singh and Gaya Singh, more or less stood on the same footing as that of
Amar Nath. We would, therefore, give the benefit of doubt to these three,
appellants also and acquit them.
87 Now remains the case of Onkarnath aid
Chhabinath. The first question to be considered is : Were the injuries found on
these appellants received by them in the course or the same transaction in which
Deep Narain and Jagdish Narain were injured? It is common ground that at about
11 A.M. on the day of occurrence Onkarnath had slapped and manhandled Girja
Singh, cousin of the deceased. It is further in evidence (vide, Jagdish Narain
P. W. 1) that as soon as Deep Narain returned home at about 4-30 p.m. Girja
Singh complained to him about his unmerited beating at the hands of Onkarnath.
Deep Narain then told Girja Singh that he would correct Onkarnath, the actual
words used by him were "samjha doonga". These words were evidently
spoken in ironic and sardonic tone. The object was to assure the complaining
boy that Onkarnath would be suitably censured and moderately chastised for his
misbehaviour. It is significant that soon after hearing this complaint, the two
brothers, Deep Narain and Jagdish Narain set out, and at about 5-45 p.m. met
Chhabinath and Onkarnath appellants in front of the Darwaza of Hanuman Prasad
Singh. According to Jagdish Narain PW, they were returning from their cotton
field when they per chance met the appellants. But it may not be safe to accept
his ipse dixit on this point as no independent evidence which was available-was
produced to show that they had any cotton crop in their field at that time.
There was no past enmity between the parties
and the, slapping incident in which only the teenagers were involved, was not
such a serious matter that would have impelled, the deceased and his brother to
beat Onkarnath with weapons.
All that they intended was to rebuke and slap
Onkarnath so that he realised his mistake and promised to behave in future. But
to their surprise they found Onkarnath in a defiant mood. Being in the company
of his elder ,.brother, Chhabinath, he not only refused to apologise for the
beating of Girja, but proclaimed that he would beat him again. This exchange of
hot words developed into a violent-scuffle.
Deep Narain and Jagdish Narain became
interlocked with Onkarnath and Chhabinath respectively. In that grappling, the
deceased and his brother who were admittedly stronger, severely dealt with
their adversaries. They knocked down and pinned the appellants to the ground.
Evidently, in the hostile grappling, more violent than 'all-in-wrestling', the
appellants being the weaker party, were worsted and probably subjected to a
grinding operation against the ground.
Dr. Udai Singh (PW 3) explained that all the
simple injuries found on Onkarnath could have been caused by friction against
some hard substance on May 18, 1965 at 6 p.m. He did not rule out the
possibility of injuries 1, 4 and 5 having been caused, with a lathi. He was
positive that injuries 2 and 3 could not be caused with a lathi. Cross-examined
by the State Counsel, Dr. Udai Singh opined that the injuries of Onkarnath
could be caused by his fall on ground having kankars and brickbats. He
significantly added that his injuries could also be 'made up' i.e. fabricated.
88 Dr. K. P. Singh,, DW 1, was the Medical
Officer of Benaras Hindu University wherein Chhabinath was employed. He
examined Chhabinath on May 18, 1965 at 9 p.m. and found four simple fresh
injuries on him. Injury 1, was located on the frontoparietal region. It was a
lacerated injury with irregular margins. Its size as noted in the medico-legal
report was 3x1/2". In the Bed-Head ticket, however, the dimensions of this
injury was noted as : 4"x1/2"X1/4". Dr.K. P. Singh was unable to
explain this discrepancy, because the Bed-Head ticket was in the hand of Dr.
Mehta. All the injuries were however, simple and excepting No. 2 could be
caused with a blunt weapon. Regarding injury, 2, he stated that it had no depth
and could be caused by a nail prick.
He significantly opined that this injury
could also be "made up". It is to be noted that this Doctor who
examined the injuries at 9 p. in. found them "fresh". That is to say,
he found them fresh even three hours after the occurrence.
If the grappling incident was true, and we
have no doubt that it was so, then looking at the location and nature of the
injuries and the violent manner in which the, appellants must have been thrown
down, floored and thrashed against the ground, it appears to be probable that
these injuries, mostly superficial were received by Onkarnath and Chhabinath in
the course of that grappling or scuffle.
The evidence of this grappling incident near
the Darwaza of Hanuman Prasad Singh, was given by Jagdish Narain (P. W. 1) and
Ram Asrey (Primus) (P. W. 7). The latter was an independent witness. He had no
axe to grind against the appellants. He emerged unshaken from a gruelling
cross- examination. The reason given by Ram Asrey for his presence at the spot
was that he was returning after giving a message to Vijay Bahadur Singh at the.
latter's house that he should carry the meals of his brother to the University
Even the learned trial judge held :
"There is nothing improbable in his evidence on the point and I believe
it"., The High Court also found his evidence reliable. Even according to
the defence version given by these appellants and D.W. 4, the, trouble started
with an incident in front of the Darwaza of Hanuman Prasad Singh. In agreement
with the High Court, therefore, we have no hesitation in accepting the
prosecution story with regard to the grappling incident near the Darwaza of
Hanuman Prasad Singh.
Evidence with regard to the main occurrence
which took place some minutes after the grappling was given by P.Ws. Jagdish
Narain, Ram Asrey Primus, Vijay Bahadur Singh and Hari Ram Pandey. The sum and
substance of their testimony was that Deep Narain and Jagdish Narain while
going back to their houses were surrounded by all the appellants and Amar Nath
near the Darwaza of Ramkishore Singh, and there Onkarnath and Chhabinath
belaboured them with a spear 'and a gandasa, respectively, which they had
brought from their nearby house after the scuffle. P.Ws. Vijay Bahadur Singh
and Hari Ram Pandey stated that they were on their way to their houses when
they saw the occurrence. Their evidence was assailed before the trial Judge on
the ground that the scene of the 89 crime does not lie on the direct route to,
The learned trial Judge repelled this
contention in these terms "I made local inspection at the request of the
defence vide my inspection note on the record.
On local inspection I find that the route
which passes by the Darwaza of Ram Kishore Singh was more convenient to Vijay
Bahadur Singh and Hari Ram Pandey to reach their respective houses than the
routes suggested by the defence." On the basis of the evidence of P.Ws.
Jagdish Narain, Vijay Bahadur Singh, Ram Asrey (Primus) and Hari Ram Pandey,
the trial Judge found that "all the six accused were participants in the
marpit which took place at the Darwaza of Ramkishore Singh." He however
rejected the consistent and otherwise impeccable evidence of these
eye-witnesses mainly on the ground that they had failed to give an explanation
of the injuries of Onkarnath, Chhabinath and Parasnath appellants.
We have already expressed that the
explanation for the injuries of Chhabinath and Onkarnath was apparent from the
circumstance that they were manhandled, floored and violently dealt, with by
the physically stronger Deep Narain and Jagdish Narain in the grappling. It is
only with regard to the grievous injury of Parasnath that it can be said that
there is no explicit or implicit explanation from the side of the prosecution.
The question is, what is the effect of this
non-explanation of the injuries of Parasnath ? This is a question of fact and
not one of law. Answer to such a question depends upon the circumstances of
each case. This Court has repeatedly pointed out that the entire prosecution
case cannot be thrown overboard simply because the prosecution witnesses do not
explain the injuries can the person of the accused (see Bankey Lal v. State of
U.P.) (supra) and Bhagwan Tana Patil v. State of Maharashtra Criminal Appeal 78
of 1970 decided on 9-10-73.
Such non-explanation, however, is a factor
which is to be taken into account in judging the veracity of the prosecution
witnesses, and the Court will scrutinise their evidence with care. Each case presents
its own features.
In some cases, the failure of the prosecution
to account for the injuries of the accused may undermine its evidence to the
core and falsify the substratum of its story, while in others it may have
little or no adverse effect on the prosecution case. It may also, in a given
case, strengthen the plea of private defence set up by the accused. But it
cannot be laid down as an invariable proposition of law of universal
application. that as soon as it is found that the accused had received injuries
in the same transaction in which the complainant party was assaulted, the plea
of- private defence would stand prima facie established and the burden would
shift on to the prosecution to prove that those injuries were caused to the
accused in self-defence by the complainant party. For instance where two
parties come armed with a determination to 90 measure their strength and to
settle a dispute by force of arms and in the ensuing fight both sides receive
injuries, no question of private defence arises.
The observations of one of us (Beg J.) in
Rishikesh Singh's case (supra) on which Mr. Garg relies should not be torn out
of the context to deduce a cast-iron rule of law out of a matter which is
essentially one of fact. A reading of the whole opinion of Beg J. in Rishikesh
Singh's case will show that the real question under consideration in that case
was whether the evidence present in a case which may support the existence of a
right of private defence must be excluded altogether from consideration where
the accused fails to establish his defence by a "preponderance of
probabilities", or, it must be taken into account to determine whether the
prosecution has established its case beyond reasonable doubt. It was held there
that evidence as a whole must be considered, whether it comes from the side of
the prosecution or the defence, to determine whether the infliction of injuries
for which an accused is prosecuted were either proved by a "balance of
probabilities" to have been inflicted in the course of exercise of a right
of private defence, or, even if the accused fails to do that, it is sufficient
to makethe prosecution case doubtful on an ingredient of the offence. Itis only
in one of these two possible situations that the accused could get an 'acquittal.
If circumstances which 'seem to support the plea of private defence are
satisfactorily explained away by the prosecution on the evidence in the case,
so as to be consistent with the prosecutionversion, the case may still result
in a conviction. In every case, thequestion is really one of appraisal of total
evidence and its effect.
This was pointed out by Beg J. in Rishikesh
Singh's, case (supra inpara 111, p. 85) where two cases Emperor v. U.
Damapala(1) and Thein v. The King(2 ) were
referred to as illustrations of kinds of situations on facts in which the
prosecution case would become doubtful on an ingredient of the offence. The
meaning of "reasonable doubt" and the manner in which the evidence
has to be sifted were also indicated (para 112, p. 85 and paras 128 to 130, p.
It was also pointed out that mere removal of
the obligatory presumption at the end of s. 105 of the Evidence Act, by showing
that some circumstances did exist to support a plea of private defence, may not
be enough to secure an acquittal (para 161, pp. 97-98). The view taken there
was that the obligatory presumption at the end of s. 105 merely imposes a duty
upon the accused of showing that certain circumstances exist which remove this
presumption. It was held there that, despite the removal of this special
presumption at the end of s. 105, Evidence Act, by showing that some
circumstances of the kind mentioned there did exist in the case, the accused
may fail to discharge the burden of proving his plea of private defence by balance
of probabi- lities. Nevertheless, despite the failure of the accused to prove
his plea of private defence, the effect of the totality of the evidence may (1)
A.I.R. 1937 Rang. 83 (F.B.) (2) A.I.R. 1941 Rang. 1975.
91 be to throw an ingredient of the offence
in the region of doubt. That ingredient, in a case ;in which private defence is
set up so that the commission of the injurious act is admitted :even
indirectly, is the required "mens rea". This was also pointed out
there (paras 143 to 148 at p. 93-94).
In either words, the result or the effect of
the total evidence is to be judged by taking the whole evidence into account.
No single feature of the evidence will determine the fate of the case.
In the instant case, the totality of the
evidence on record neither establishes even with reasonable possibility a right
of private defence in favour of the appellants nor throw a cloud of doubt on
the prosecution case.
Parasnath Singh appellant had two injuries,
one a scabbed abrasion on the lower, outer part of the left forearm, and the
other a swelling over the dorsem of left hand with a fracture underneath.
According to Dr. Udai Singh, P.W. 3, these injuries could be caused with a
blunt weapon, including a lathi. But in cross-examination by the State, Counsel,
the Doctor explained that an abrasion with a lathi blow is possible only when
the surface of the lathi is rough and the blow is a light one and, the lathi
slips away from the place of its contact. He added that when a lathi blow is
delivered and there is a full impact thereon on the person hit, it will always
result in a contused wound or confusion. He also stated that injury No. 1
appeared to have been caused by friction against hard substance. The age of
these injuries, in the Doctor's opinion, appeared to be the same as those found
on Jagdish Narain (P. W. ).
Dr. Udai Singh's opinion could be relied upon
to hold that Parasnath appellant received these injuries near about the time of
occurrence; but his opinion was not definite and cogent enough to base a
finding that these injuries were caused to the appellant with a lathi or like
weapon. The version of Onkarnath was that Jagdish Narain and Deep Narain were
armed with gandsa and lathi respectively and Parasnath had snatched the gandasa
and wielded it in self-defence.
This version was manifestly incredible. There
was no cut- wound on any of the appellants. The very story of grappling and the
nature of the injuries received by Chhabinath and Onkarnath were inconsistent
with the defence suggestion that the deceased and his companion were armed with
In our opinion, the presence of injuries on
the person of Parasnath, which could have been. caused at or about the time of
occurrence, coupled with the failure of the prosecution to explain those injuries,
was on the facts of this case far from sufficient to establish even a
reasonable possibility of the injuries to the deceased and his companion having
been caused in repelling an attack on Parasnath.
The key to the problem is in the question :
Where and pre- cisely when were these injuries caused to Parasnath ? Were they
92 caused in the grappling that took. place in front of the Darwaza of Hanuman
Prasad Singh, or, subsequently in the course of the occurrence near the Darwaza
of Ram Kishore Singh ? Parasnath Singh curiously enough, in his examination
under s. 342, Cr. P.C. did not allege, how and where he had received these
injuries, although Q. No. 25 with reference to the medical evidence was put to
him. Q. No. 13 specifically related to. the assault on the deceased and Jagdish
Narain by Chhabinath and Onkarnath with a gandasa and spear, respectively, in
front of the Darwaza of Ram Kishore. In reply, the appellant emphatically
,denied his presence at the scene of occurrence. Onkarnath's version was that
Parasnath received the injuries in the marpit in front of the Darwaza of
Hanuman Prasad Singh. According to Dr. Udit Narain Singh (D.W. 4), these
injuries on Parasnath were inflicted by the deceased following a quarrel in
front of the Darwaza of Hanuman Prasad Singh.
As already discussed, the prosecution had
established by cogent and convincing evidence that, in fact, two incidents took
place, one was the grappling in front of the Darwaza of Hanuman Prasad Singh
and the other was the occurrence in which fatal injuries were caused to the
deceased near the Darwaza of Ram Kishore by the appellants. The distance
between the Darwaza of Hanuman Prasad Singh and Ram Kishore is about 70-80
paces i.e. 365 to 420 ft. There was an interval of a few minutes between the
grappling and the fatal assault. The two incidents were separated by time and
distance. There was no continuity of action.
Assuming that Parasnath received the injuries
in or about that grappling incident, then he could not be said to have,
received them in the course of the same occurrence in which the deceased was
fatally assaulted. After their disengagement, both the parties had proceeded
from the Darwaza of Hanuman Prasad Singh towards their respective houses. The
houses of the appellants were in the vicinity, while those of the complainant
party were farther away.
'The complainant party had already retreated
and gone away to a distance of about 365 to 420 ft. when Chhabinath and
Onkarnath returned. armed with deadly weapons from their nearby houses and then
pursued, overtook, surrounded and made a murderous assault on the deceased and
In such a situation a right of private
defence never accrued to them. The question of exceeding that right simply did
A right of private defence given by the Penal
Code is essentially one of defence or self-protection and not a right of
reprisal or punishment. It is subject to the restrictions indicated in s. 99,
which are as important as the right itself. One of them is that the harm
inflicted in self-defence must be no more than is legitimately necessary for
the Purpose of defence. Further, the right is co- terminus with the
commencement and existence of a reasonable apprehension of danger to body from
an attempt or a threat to commit the offence (see s. 102). It avails only
against a danger, real, present and 93 imminent. Such a danger did not exist
here. There was no reasonable apprehension of harm, much less of grievous hurt
or death even if at any anterior time there was any-to the appellants from the
fleeing complainant party when the latter were attacked by the former.
Evidently, this assault with intrinsically dangerous weapons was made by
Chhabinath and Onkarnath appellants on the deceased, and his brother by way of
vendetta to gratify the feeling of revenge that had burst into a blaze within
them. The assault on the deceased and his brother was exceedingly vindictive
and maliciously excessive. The force used was out of all proportion to the
supposed danger, which no longer existed, from the complainant party. Under
these circumstances, therefore, the appellants were neither entitled to a right
of private defence, nor to the benefit of Exception 2 to s. 300, Penal Code,
and the offence committed in respect of Deep Narain was nothing short of
Ordinarily, this' Court does not enter upon a
detailed examination of the evidence. But in the peculiar circumstances of this
case, we have analysed the evidence and reached conclusions on it to, show that
neither the trial court was justified in acquitting all the accused on the
ground that this was a case in which it was not reasonably possible to
determine where the truth Jay, nor was the High Court right in accepting the
prosecution version in to without demur, and, indeed, by speculating excessively
in attempting explanations of the injuries of the accused. Courts of justice
must endeavour to reach conclusions which are reasonably possible to arrive at
without stretching the imagination beyond the bounds of reason.
In the light of the above discussion, we
would dismiss the appeal of Onkarnath Singh and Chhabinath Singh and uphold
their conviction and sentence. But for reasons already stated-, we accept the
appeal of Parasnath Singh, Basdeo Singh and Gaya Singh appellants and set aside
their convictions and sentences. They may be set at liberty, if not otherwise
P.H.P. Appeal partly allowed.