Hare
Krishna Singh & Ors Vs. State of Bihar
[1988] INSC 57 (24
February 1988)
Dutt,
M.M. (J) Dutt, M.M. (J) Shetty, K.J. (J)
CITATION:
1988 AIR 863 1988 SCR (3) 1 1988 SCC (2) 95 JT 1988 (1) 423 1988 SCALE (1)405
ACT:
Sections
34, 96, 100, 302 and 379-Common intention is not by itself an offence-It
creates a joint and constructive liability for the crime committed in
furtherance of such common intention-Guilt of accused-Burden of proof is on
prosecution-Not necessary for prosecution to explain how and in what
circumstances injuries inflicted on person of accused.
Indian
Evidence Act, 1872: Section Test Identification parade-Failure to identify
accused by P.W. effect of on case of prosecution.
HEAD NOTE:
% The
prosecution case as appearing from the Fardbeyan or the FIR lodged by P.W. 3, a
social worker was that on 12.12.1987 at about 7.00 A.M. he was going to his
brother- in-law and just as he reached the main gate of the Sadar Hospital, he
saw seven persons:
(1)
Hare Krishna Singh.
(2) Sheo
Narain Sharma,
(3)
Ram Kumar Upadhyaya,
(4) Jagdish
Singh's nephew-Paras Singh of Birampur,
(5)
Hare Krishna Singh's brother-in-law, Paras Nath Singh of Dhobaha, the
appellants and two more whom he could not identify. All these persons were
armed with rifle, gun and pistol and were standing near the northern side of
the eastern gate, of the Hospital. At that time two Rickshaws were coming from
the eastern side. In the front rickshaw the deceased-Jitendra Choudhary, was
sitting along with another person and in the rear rickshaw were his two
sisters, PW I and PW 2. As the rickshaw of the deceased came close to these
seven persons, Hare Krishna Singh fired at the deceased from his gun, whereupon
the latter fell down from the rickshaw with the rifle which he was carrying.
The other persons also fired upon the deceased as a result of which he died.
After that Hare Krishna Singh picked up the rifle of the deceased and took to
his heels. After investigation by PW 9, the charge sheet was submitted against
all the appellants and they were put up for trial.
The
prosecution examined as many as 9 witnesses of whom PWs. 1, 2, 3 and 8 were eye
witnesses. The defence of the appellant-Hare 2 Krishna Singh was that while he
was going to Patna along with appellant-Ram Kumar Upadhyaya and one Madan Singh
in a rickshaw, and that when the rickshaw in which the deceased was travelling
came close to him, the deceased fired at him and that he sustained injuries. He
examined five witnesses DWs. 1 to 5, to prove the nature of injury sustained by
him.
The defence
of Paras Singh of Dhobaha was that he had not visited the village for the last
fifteen years, while the defence of the other remaining appellants was a denial
of their complicity in the crime.
The
Additional Sessions Judge accepted the prosecution case, and convicted and
sentenced the appellants to various periods of imprisonment.
On
appeal by the appellants the High Court affirmed the convictions and sentences.
In the
appeals by certificate to this Court it was contended: (a) on behalf of Hare
Krishna Singh, appellant in Crl. A. No. 690/82 that the prosecution having
failed to explain the injury sustained by Hare Krishna Singh in the same
occurrence, such injury being a serious one, the prosecution witnesses should
be disbelieved, and that in such circumstances it should be held that the plea
of the appellant of self-defense shall be probabilised and that the prosecution
must have withheld the true facts as to the genesis and origin of the
occurrence, and that in any event a great doubt had been cast on the
prosecution case and the benefit of that doubt should go to the appellant.
(b) on
behalf of Paras Singh of Birampur, the nephew of Jagdish Singh, the sole
appellant in Cr. A. No. 616/82 that in the FIR his name was not mentioned, that
PW 3 failed to identify him in the T.I. Parade, that PW 8 did not attend the
T.I. Parade, and that he was not present at the time of occurrence.
(c) on
behalf of Sheo Narain Sharma the remaining appellant in Crl. A. No. 690/82 and
Ram Kumar Upadhayaya sole appellant in Crl. A. No. 615/82, that no specific
overt act had been attributed to either of them and the fact that they were
found in the company of Hare Krishna Singh and Paras Singh of Dhobaha could not
be sufficient to impute common intention to them.
Dismissing
Criminal Appeal No. 690 of 1982 in so far as it relates to Hare Krishna Singh
and Paras Singh of Dhobaha, and allowing it in 3 respect of Sheo Narain Sharma
and acquitting him of all the charges; and allowing Crl. A. Nos. 615 and 616 of
1982 and setting aside the convictions and sentences of Ram Kumar Upadhayaya
and Paras Singh of Birampur and acquitting them of all the charges.
^
HELD:
1. It is not an invariable rule that the prosecution has to explain the
injuries sustained by the accused in the same occurrence. The burden of proving
the guilt of the accused is undoubtedly on the prosecution. The accused is not
bound to say anything in defence. The prosecution has to prove the guilt of the
accused beyond all reasonable doubts. If the witnesses examined on behalf of
the prosecution are believed by the court in proof of the guilt of the accused
beyond any reasonable doubt, the question of the obligation of the prosecution
to explain the injuries sustained by the accused will not arise. [12E-F]]
2.
When the prosecution comes with a definite case that the offence has been
committed by the accused and proved its case beyond any reasonable doubt, it
becomes hardly necessary for the prosecution to again explain how and in what
circumstances the injuries have been inflicted on the person of the accused.
[12G]
3.
Simply because the accused has received injuries in the same occurrence, it
cannot be taken for granted that the deceased or the injured person was the
aggressor and consequently, he had to defend himself by inflicting injury on
the deceased or the injured person. [13B-C]
4. It
is not the law or invariable rule that whenever the accused sustains an injury
in the same occurrence the prosecution has to explain the injuries failure of
which will mean that the prosecution has suppressed the truth and also the
origin and genesis of the occurrence. [13D-E]]
5.
Common intention under section 34 IPC is not by itself an offence. But, it
creates a joint and constructive liability for the crime committed in
furtherance of such common intention. [16E-F]
6. As
no overt act whatsoever has been attributed to the appellants, Ram Kumar Upadhyaya
and Sheo Narain Sharma, it is difficult to hold, in the facts and circumstances
of the case, that they had shared the common intention with Hare Krishna Singh
and Paras Singh of Dhobaha. When these two appellants were very much known to
the eye witnesses PW 3 and 8 non-mention of their names in the evidence as to 4
their participation in firing upon the deceased, throws a great doubt as to
their sharing of the common intention.
The
conviction and sentences of these two appellants cannot therefore be sustained.
They are therefore acquitted of all the charges. [16F-G]
7. The
Additional Sessions Judge has not believed the case of R Hare Krishna Singh
that he had sustained a bullet injury in the same occurrence and he has given
reasons therefor. The High Court has, however, come to the finding that Hare
Krishna Singh was admitted in the hospital in an injured condition immediately
after the occurrence. In the facts and circumstances of the case the
prosecution is not obliged to account for the injury and that the failure of
the prosecution to give a reasonable explanation of the injury would not go
against or throw any doubt on the prosecution case. All the eye witnesses have
stated that the appellant Hare Krishna Singh had fired on Jitendra Choudhary as
a result of which he died. The prosecution witnesses have been believed by the
Additional Sessions Judge and High Court. In these circumstances it cannot be
thought that the materials on record including the statement of Hare Krishna
Singh under section 313 Cr. P.C. probablise any case of self defence or that
the deceased had inflicted on him the injury by firing at him from his rifle.
The appellant Hare Krishna Singh has therefore, been rightly convicted and
sentenced. [13E-G; 14B-C, F]
8. As
regards Paras Singh of Dhobaha he was found with the accused persons including
Hare Krishna Singh. It is not disputed that he is the brother-in-law of Hare
Krishna Singh as has been described in the FIR. It is the categorical evidence
of PWs. 1, 2, 3 and 8 that Paras Singh of Dhobaha had fired at the deceased. He
has been identified by PW1 in the T.I. Parade. In these circumstances there is
no reason to interfere with the order of conviction and sentence passed by the
Courts below. [14F-G]]
9. The
prosecution has not been able to identify the appellant Paras Singh of Birampur
with the description of Jagdish Singh's nephew as given in the FIR. PW. 3
failed to identify the appellant in the T.I. Parade. PW. 8 did not attend the
T.I. Parade. In such circumstances, the High Court was not justified and
committed an error of law in relying upon the statements of PWs 3 and 8 made
before the police mentioning the names of Paras Singh of Birampur. The
prosecution has failed to prove the complicity of Paras Singh of Birampur in
the crime and that he was present at the time of occurrence. His conviction and
sentence cannot therefore be sustained and are set aside. He is acquitted of
all the charges. [15C-F] 5 Bhaba Nanda Sharma v. State of Assam, [1977] 4 SCC 396;
Ramlagan
Singh v. State of Bihar, [1973] 3 SCC 881; Onkarnath Singh
v. State of U.P., [1975] 3 SCC 276; Bankey Lal v.
State of U.P., [1971] 3 SCC 184 and Bhagwan Tana Patil
v. State of Maharashtra, [1974] 3 SCC 536, relied on.
Lakshmi
Singh v. State of Bihar, [1976] 4 SCC; 394; Mohar Rai v. State of Bihar; [1968] 3 SCR 525; Jagdish v. State
of Rajasthan, [1979] 3 SCR 428; Munshi Ram v.
Delhi Administration and State of Gujarat v. Bai Fatima, [1975] 3 SCR 993, distinguished.
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal No. 690 of 1982 etc.
From
the Judgment and order dated 20.5.1982 of the Patna High Court in Criminal
Appeal No. 329 of 1980.
R.K. Garg,
R.K. Jain, Rajendra Singh, S.N. Jha, R.P. Singh, Rakesh Khanna, Md. Israeli and
Ranjit Kumar for the Appellants.
Pramod
Swaroop and Mrs. G.S. Misra for the Respondents.
B.B.
Singh (Not Present) for the Respondents.
A.K.
Panda for the Complainant in all the appeals.
The
Judgment of the Court was delivered by DUTT, J. These appeals are directed
against the judgment of the Patna High Court affirming the order of the First
Additional Sessions Judge, Arrah, convicting all the appellants under sections
302/34 IPC and section 27 of the Arms Act and sentencing each of them to
rigorous imprisonment for life and rigorous imprisonment for three years
respectively and further convicting the appellant Hare Krishna Singh under
section 379 IPC and sentencing him to rigorous imprisonment for three years;
all the sentences are to run concurrently. The accused included two persons
having the same name Paras Singh, one of Village Dhobaha, brother- in-law of
Hare Krishna Singh, one of the appellants in Criminal Appeal No. 690 of 1982,
and the other of Village Birampur and nephew of Jagdish Singh, the appellant in
Criminal Appeal No. 616 of 1982. We shall hereinafter refer to 6 the said two
persons as 'Paras Singh of Dhobaha' and 'Paras Singh of Birampur' respectively.
The
prosecution case as appearing from the Fardbeyan or the FIR lodged by one Sarabjit
Tiwary (P.W. 3), a social worker, on 12.12.1987 in the Arrah Sadar Police
Station, was that on that day at about 7.00 A.M. he was going to his brother-in-law
Raghubir Mishra and just he reached near the main gate of the Sadar Hospital,
he saw seven persons, namely,
"(1)
Hare Krishna Singh, resident of Dhanpura;
(2) Sheo
Narain Sharma, resident of Berkhembe Gali;
(3)
Ram Kumar Upadhyaya, resident of village Dumaria;
(4) Jagdish
Singh's nephew of Birampur in military service;
(5)
brother- in-law of Hare Krishna Singh of Dhobaha in military service" and
two more persons whom he could not identify. All the said persons were armed
with rifle, gun and pistol, and were standing near northern side of the eastern
gate of the hospital. At that time, two Rickshaws were coming from the eastern
side. In the front Rickshaw, Jitendra Choudhary and another person named Lallan
Rai, Resident of village Maniya, were sitting and in the rear Rickshaw there
were two girls.
As the
Rickshaw of Jitendra Choudhary came near the persons mentioned above, all of a
sudden, Hare Krishna Singh fired at Jitendra Choudhary from his gun, whereupon
the latter fell down from the Rickshaw with the rifle which he was carrying
with him. The other persons also fired upon Jitendra Choudhary along with Hare
Krishna Singh, as a result of which he died. After that Hare Krishna Singh
picked up the rifle of Jitendra Choudhary and touching his body said, "He
is dead, let us take to our heels". It may be mentioned here that the two
girls referred to in the Fardbeyan or FIR are Premlata Choudhary (P.W. 1) and Sobha
Choudhary (P.W. 2), sisters of the deceased Jitendra Choudhary.
After
investigation by P.W. 9, the chargesheet was submitted against all the
appellants and they were put up for trial. The prosecution examined as many as
9 witnesses, of whom P.Ws. 1, 2, 3 and 8 were eye witnesses. The defence of
Hare Krishna Singh was that he was going to Patna along with the appellant Ram Kumar Upadhyaya and one Madan Singh in a
Rickshaw and when the Rickshaw reached near the shop of Sita Ram, he received a
bullet from behind and fell down. He looked back and saw that one Dipu Prasad
and Ram Lal were firing. He also saw the deceased Jitendra Choudhary, Chhatu Choudhary
and Lallan Rai (P.W. 8) firing from the eastern gate of the Hospital. He
examined five witnesses, D.Ws. 1 to 5, to prove the nature of injury sustained
by him.
7 The defence
of Paras Singh of Dhobaha was that he had not visited the village Dhanpura for
the last fifteen years.
The defence
of other appellants is also a denial of their complicity in the crime.
The
learned Additional Sessions Judge, after an elaborate discussion and analysis
of the evidence adduced on behalf of the parties, accepted the prosecution case
and convicted and sentenced the appellants as mentioned above.
Regarding
the injury sustained by Hare Krishna Singh, the learned Additional Sessions
Judge was of the view that such injury had been deliberately introduced by him
and held that he was not injured in the occurrence. On appeal by the
appellants, the High Court affirmed their convictions and sentences. Hence
these appeals be special leave.
It is
contended by Mr. Garg, learned Counsel appearing on behalf of Hare Krishna
Singh, one of the appellants in Criminal Appeal No. 690 of 1982, that the
prosecution having failed to explain the injury sustained by the appellant in
the same occurrence, such injury being a serious one, the prosecution witnesses
should be disbelieved. Counsel submits that in such circumstances, it should be
held that the plea of the appellant of self-defence has been probabilised, and
that the prosecution must have withheld the true facts as to the genesis and
origin of the occurrence. Further, it is submitted that in any event, it has
cast a great doubt on the prosecution case and the benefit of that doubt should
go to the appellant.
The
question, however, is whether it is an invariable rule that whenever an accused
sustains an injury in the same occurrence, the prosecution is obliged to
explain the injury and on the failure of the prosecution to do so, the
prosecution case should be disbelieved. Before answering the question we may
refer to a few decisions of this Court cited at the Bar. Mr. Garg has placed
much reliance upon the decision of this Court in Lakshmi Singh v. State of
Bihar, [1976] 4 SCC 394. In that case, the accused sustained injuries in the
same occurrence. Fazal Ali, J., who delivered the judgment of the Court,
observed that no independent witness had been examined by the prosecution to
support the participation of the appellant in the assault.
Further,
it was observed that the evidence of P.Ws. 1 to 4 clearly showed that they gave
graphic description of the assault with regard to the order, the manner and the
parts of the body with absolute consistency which gave an impression that they
had given a parrot-like version acting under a conspiracy to depose to one set
of facts and one set of facts only. In view of the nature of evidence of P.Ws.
1 to 4, this 8 Court accepted the contention made on behalf of the accused,
particularly taking the entire picture of the narrative given by the witnesses,
that P.Ws. 1 to 4 had combined together to implicate the accused falsely
because of the long-standing litigation between them and the said witnesses.
Thereafter, the Court considered the injuries that were inflicted on the person
of the accused Dasrath Singh and laid down that where the prosecution fails to
explain the injuries on the accused, two results follow: (1) that the evidence
of the prosecution witness is untrue; and (2) that the injuries probabilise the
plea taken by the appellants. The principle of law laid down in the earlier
decision of this Court in Mohar Rai v. State o f Bihar, [1968] 3 SCR 525 was
followed.
In Mohar
Rai's case it has been laid down 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 case 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
principles that have been laid down in Lakshmi Singh's case have to be read in
the context of the facts of that case. It has been already pointed out that the
prosecution witnesses have been disbelieved by this Court before it considered
the question of failure of the prosecution to explain the injuries sustained by
one of the accused. If the prosecution witnesses had been believed in that
case, the non-explanation of the injuries sustained by the accused would not
have affected the prosecution case.
Indeed,
it has been laid down in Lakshmi Singh's case that the non-explanation of the
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 far outweighs the effect of the omission on the part of
the prosecution to explain the injuries.
In Mohar
Rai's case (supra), the first appellant Mohar Rai was convicted under section
324 IPC for shooting and injuring P.W 1 at the instigation of the second
appellant Bharat Rai, who was himself convicted of an offence under section 324
read with section 109 IPC.
9 The
prosecution proceeded on the basis that the revolver (Ex. III), which was
recovered from Mohar Rai, was the weapon that was used by him in the commission
of the offence. The ballistic expert, who was examined as D.W. 1, was positive
that the seized empties as well as the misfired cartridge could not have been
fired from Ex. III. The evidence of D.W. 1 was accepted both by the trial court
as well as by the High Court. This Court rejected the prosecution case that Mohar
Rai had fired three shots from Ex. III. This Court held that once it was proved
that the empties recovered from the scene could not have been fired from Ex.
III, the prosecution case that those empties were fired from Ex. III by Mohar Rai
stood falsified. Thereafter, the injuries sustained by the two appellants, Mohar
Rai and Bharath Rai, were considered by the Court and it held that the
prosecution had failed to explain the injuries sustained by the appellants and
observed that the failure of the prosecution to offer any explanation in that
regard showed that the evidence of prosecution witnesses relating to the
incident was not true or, at any rate, not wholly true.
Thus,
in this case also the question of non-explanation of the injuries on the
accused was considered by the Court after it had rejected, on a consideration
of evidence, the prosecution case that Mohar Rai had fired from the revolver
(Ex. III). In other words, if the prosecution case had been believed that the
appellant Mohar Rai had fired from Ex. III injuring P.W. 1, the non-explanation
of the injuries sustained by the accused would not have affected the
prosecution case.
On the
other hand, in Bhaba Nanda Sharma v. State of Assam [1977] 4 SCC 396 it has
been categorically laid down by this Court that the prosecution is not obliged
to explain the injuries on the person of the accused in all cases and in all
circumstances. It depends upon the facts and circumstances of each case whether
the prosecution case becomes reasonably doubtful for its failure to explain the
injuries on the accused. In Ramlagan Singh v. State of Bihar, [1973] 3 SCC 881
this Court again examined the question and it has been laid down that 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 of the accused persons. When that is not done,
there is no occasion for the prosecution witnesses to explain the injuries on
the person of the accused. In the instant case also, the injury sustained by
the appellant Hare Krishna Singh, has not been put to the prosecution witnesses
and so they had no occasion to explain the same.
In
such circumstances, as laid down in Ramlagan Singh's case, the non-mention of
the injuries on the person of the appellant in the prosecution evidence would
not 10 affect the prosecution case, which-has been accepted by the courts
below.
In Onkarnath
Singh v. State of U. P., [1975] 3 SCC 276 this Court has reiterated its view as
expressed in Bankey Lal v. State of U.P., [1971] 3 SCC 184 and Bhagwan Tana Patil
v. State of Maharashtra, [1974] 3 SCC 536 that the entire prosecution case
cannot be thrown overboard simply because the prosecution witnesses do not
explain the injuries on the person of the accused. Thereafter, it was observed
as follows:
"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 case, the failure of the prosecution to
account for the in juries 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 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.
Much
reliance has been placed by Mr. Garg on the following observation of Fazal Ali,
J. in Jagdish v. State of Rajasthan, [1979] 3 SCR 428:
"It
is true that where serious injuries are found on the person of the accused, as
a principle of appreciation of evidence, it becomes obligatory on the
prosecution to explain the injuries, so as to satisfy the Court as to the
circumstances under which the occurrence originated. But before this obligation
is placed on the prosecution two conditions must be satisfied;
11
1. that
the injuries on the person of the accused must be very serious and severe and
not superficial;
2. that
it must be shown that these injuries must have been caused at the time of the
occurrence in question." In Jagdish's case, the High Court believed the
prosecution witnesses and accepted the prosecution case that the injuries found
on the deceased were very severe which resulted in his death and this Court
agreed with the view taken by the High Court in convicting the appellant under
section 302 IPC.
In
regard to this point we may cite two other decisions relating to the plea of
the accused of private defence. In Munshi Ram v. Delhi Administration, [1968] 2
SCR 455 it has been held by this Court that although the accused have not taken
the plea of private defence in their statements under section 342 Cr. P.C.,
necessary basis for that plea had been laid in the cross examination of the
prosecution witnesses as well as by adducing defence evidence. It has been
observed that even if an accused does not plead self- defence, it is open to
the court to consider such plea if the same arises from the material on record.
The burden of establishing that plea is on the accused and that burden can be
discharged by showing preponderance of probabilities in favour of that plea on
the basis of the material on record.
Munshi
Ram's case arises out of a dispute over the possession of land. The case of the
appellants that their relation was a tenant of the disputed land for over
thirty years and that his tenancy was never terminated, was accepted by this
Court. In other words, the appellants were found to be in lawful possession of
the land in question and that P.Ws. 17 and 19 had gone to the land with their
friends, P.W. 19 being armed with a deadly weapon, with a view to intimidating
the relation of the appellants, whose tenancy was not terminated. They were
held to be guilty of criminal trespass and of constituting an unlawful
assembly.
In the
context of the above facts, this Court made the observation that it is open to
the court to consider the plea of private defence even though the same does not
find place in the statement under section 342 Cr. P.C.
The
next case that has been relied upon by Mr. Garg is that of State of Gujarat v. Bai
Fatima, [1975] 3 SCR 993 in that case, on behalf of the appellants the decision
in Munshi Ram's case (supra) was relied 12 upon in regard to the question of
the plea of private defence. In rejecting the contention of the accused, this
Court pointed out that not only the plea of private defence was not taken by
the accused in their statements under section 342 Cr. P.C., but no basis for
that plea was laid in the cross-examination of the prosecution witnesses or by
adducing any defence evidence. As regards the injuries sustained by one of the
accused, this Court observed as follows:
"In
material particulars the evidence of the three eye witnesses as also the
evidence of dying declaration of the deceased before P.W. Gulamnabi is so
convincing and natural that no doubt creeps into it for the failure of the
prosecution to explain the injuries on the person of respondent No. 1. The
prosecution case is not shaken at all on that account.
We
have referred to the above decisions in extenso in order to consider whether it
is an invariable proposition of law that the prosecution is obliged to explain
the injuries sustained by the accused in the same occurrence and whether
failure of the prosecution to so explain the injuries on the person of the
accused would mean that the prosecution has suppressed the truth and also the
genesis or origin of the occurrence. Upon a conspectus of the decisions
mentioned above, we are of the view that the question as to 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.
The
burden of proving the guilt of the accused is undoubtedly on the prosecution.
The accused is not bound to say anything in defence. The prosecution has to
prove the guilt of the accused beyond all reasonable doubts. If the witnesses
examined on behalf of the prosecution are believed by the court in proof of the
guilt of the accused beyond any reasonable doubt, the question of the
obligation of the prosecution to explain the 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 in what circumstances injuries have been inflicted on the
person of the accused.
The
accused may take the plea of the right of private defence which means that he
had inflicted injury on the deceased or the injured 13 person in exercise of
his right of private defence. In other words, his plea may be that the deceased
or the injured person was the aggressor and inflicted injury on the accused and
in order to defend himself from being the victim of such aggression, he had
inflicted injury on the aggressor in the exercise of his right of private defence.
As has been held in Munshi Ram's case (supra) the burden of establishing the
plea of private defence is on the accused and the burden can be discharged by
showing preponderance of probabilities in favour of that plea on the basis of
the material on record.
It,
therefore, follows that simply because the accused has received injuries in the
same occurrence, it cannot be taken for granted that the deceased or the
injured person was the aggressor and consequently, he had to defend himself by
inflicting injury on the deceased or the injured person.
All
the decisions of this Court which have been referred to and discussed above,
show that when the court has believed the prosecution witnesses as convincing
and trustworthy, the court overruled the contention of the accused that as the
prosecution had failed to explain the injuries sustained by the accused in the
same occurrence, the prosecution case should be disbelieved and the accused
should be acquitted. Thus, it is not the law or invariable rule that whenever
the accused sustains an injury in the same occurrence, the prosecution has to
explain the injuries failure of which will mean that the prosecution has
suppressed the truth and also the origin and genesis of the occurrence.
The
learned Additional Sessions Judge has not believed the case of Hare Krishna
Singh that he had sustained a bullet injury in the same occurrence and he has
given reasons therefor. The High Court has, however, come to the finding that
Hare Krishna Singh was admitted in the hospital in an injured condition
immediately after the occurrence. We do not propose to reassess evidence on the
question as to whether Hare Krishna Singh had sustained any injury or not.
We may
assume that he had sustained a bullet injury in the same occurrence. But, even
then, in the facts and circumstances of the case the prosecution, in our
opinion, is not obliged to account for the injury and that the failure of the
prosecution to give a reasonable explanation of the injury would not go against
or throw any doubt on the prosecution case.
The
injury that was sustained by Hare Krishna Singh was on the back. The P.Ws. 1
and 2, the two sisters of the deceased Jitendra Choudhary, denied the
suggestion put to them on behalf of Hare Krishna Singh that their brother Jitendra
Choudhary had been shoot- 14 ing from his rifle. P.W. 3, who is an independent
witness and was present on the scene of occurrence, also denied the suggestion
of the defence that there was firing on Hare Krishna Singh. P.W. 8 Lallan Rai
also denied such suggestion of the defence. Hare Krishna Singh made a statement
under section 313 Cr. P.C. It is not his case that in self-defence he had fired
at the deceased Jitendra Choudhary. He denied that he had any fire-arms with
him or that he had fired at Jitendra Choudhary. He also denied that none of the
accused had any weapon with him. All the eye-witnesses have stated that the
appellant Hare Krishna Singh had fired on Jitendra Choudhary as a result of
which he died. The prosecution witnesses have been believed by the learned
Additional Sessions Judge and the High Court. In the circumstances, we do not
think that the materials on record including the statement of Hare Krishna
Singh under section 313 Cr. P.C., probabilise any case of self-defence or that
the deceased had inflicted on him the injury by firing at him from his rifle.
It may
be that two empties were found by the side of the dead-body of the deceased,
but the High Court has rightly observed that the presence of the empties does
not necessarily mean that the deceased had fired. The High Court points out that
three live cartridges were also recovered from the pocket of the deceased at
the time of inquest and observes that keeping of empty cartridges by the side
of the body of the deceased cannot be ruled out. We do not find any infirmity
in the view expressed by the High Court. It is not at all amenable to reason
that the deceased had started from his house along with his two sisters with a
view to fighting with the accused. In the circumstances, we are of the view
that the appellant Hare Krishna Singh has been rightly convicted and sentenced
as above.
Now we
may deal with the case of Paras Singh of Dhobaha, one of the appellants in
Criminal Appeal No. 690 of 1982. He was found with the accused persons
including Hare Krishna Singh. It is not disputed that he is the brother-in- law
of Hare Krishna Singh, as he has been described in the FIR. It is the
categorical evidence of P.Ws. 1, 2, 3 and 8 that Paras Singh of Dhobaha had
fired at the deceased Jitendra Choudhary. He has been identified by P.W. 1 in
the T.I. Parade. In the circumstances, we do not find any reason to interfere
with the order of conviction and sentence passed by the courts below.
So far
as Paras Singh of Birampur, the nephew of Jagdish Singh and the sole appellant
in Criminal Appeal No. 616 of 1982, is concerned, his case stands on a
different footing. Indeed, Mr. Rajender 15 Singh, the learned Counsel appearing
on behalf of the appellant, has challenged the very presence of the appellant, Paras
Singh of Birampur, at the time of occurrence.
In the
FIR, his name has not been mentioned, it has only been stated "Jagdish
Singh's nephew who is in military job of Birampur". Jagdish Singh may have
more than one nephew. The I.O. (P.W. 9) in his evidence has stated that before
the arrest of Paras Singh of Birampur, he did not know his name and he cannot
say how many nephews Jagdish Singh has. The only distinctive particular for
identification, as given in the FIR, is that the nephew is in military service.
The prosecution has not adduced any evidence to show that the appellant is in
military service, and that no other nephew of Jagdish Singh is in such service.
Thus, the prosecution has not been able to identify the appellant Paras Singh
of Birampur with the description of Jagdish Singh's nephew as given in the FIR.
The most significant fact is that P.W. 3 failed to identify the appellant in
the T.I. Parade. P.W. 8 did not attend the T.I. Parade. His case is that he was
not called to attend the T.I. Parade. On the other hand, it is the defence case
that P.W. 8 was called but he did not attend the T.I. Parade.
Whatever
might have been the reason, the fact remains that no attempt was made by the
prosecution to have Paras Singh of Birampur identified by P.W. 8. In such
circumstances, the High Court was not justified and committed an error of law
in relying upon the statement of P.Ws. 3 and 8 made before the police
mentioning the name of Paras Singh of Birampur.
It is
true that P.Ws. 3 and 8 identified Paras Singh of Birampur in court, but such
identification is useless, particularly in the face of the fact that P.W. 3 had
failed to identify him in the T.I. Parade. In the circumstances, the
prosecution has failed to prove the complicity of Paras Singh of Birampur in
the crime. Indeed, the prosecution has failed to prove that Paras Singh of Birampur
was present at the time of occurrence. His conviction and sentence cannot,
therefore, be sustained.
Now we
may consider the cases of the remaining two accused, namely, Sheo Narain
Sharma, the remaining appellant in Criminal Appeal No. 690 of 1982, and Ram
Kumar Upadhaya, the sole appellant in Criminal Appeal No. 615 of 1982. These
two appellants have been convicted as a consequence of their sharing the common
intention to murder the deceased Jitendra Choudhary. Both of them have been
named in the FIR. It is submitted by the learned Counsel appearing on behalf of
these two appellants that no specific overt act has been attributed to either
of them. It may be that they were found in the company of Hare Krishna Singh
and Paras Singh of Dhobaha but, the 16 learned Counsel submits, that fact will
not be sufficient to impute common intention to them.
So far
as the appellant Ram Kumar Upadhaya is concerned, there is evidence that he
went with Hare Krishna Singh, but there is no evidence that he had also left
the place of occurrence with him. It is the evidence of all the eye-witnesses,
namely, P.Ws. 1, 2, 3 and 8 that Hare Krishna Singh had fired a shot at the
deceased Jitendra Choudhary, hitting him in the face and he rolled and fell
down from the Rickshaw in front of the gate. Thereafter, Paras Singh of Dhobaha
also fired at the deceased. After specifically mentioning the names of Hare
Krishna Singh and Paras Singh of Dhobaha as persons who had fired at the
deceased, P.W. 3 stated that thereafter two/three firings took place and all
the accused went to the shop of Sita Ram in front of the gate on the road from
where they also fired upon Jitendra Choudhary. P.W. 8 in his evidence has also
made a general statement that all the accused started firing upon Jitendra Choudhary.
It is not readily understandable why the witnesses did not specifically mention
the names of Sheo Narain Sharma and Ram Kumar Upadhaya, if they had also fired
at the deceased. Except mentioning that these two appellants were present, no
overt act was attributed to either of them.
The
question is whether the crime was committed by Hare Krishna Singh and Paras
Singh of Dhobaha in furtherance of the common intention of these two appellants
also. Common intention under section 34 IPC is not by itself an offence.
But,
it creates a joint and constructive liability for the crime committed in
furtherance of such common intention. As no overt act whatsoever has been
attributed to the appellants, Ram Kumar Upadhaya and Sheo Narain Sharma, it is
difficult to hold, in the facts and circumstances of the case, that they had
shared the common intention with Hare Krishna Singh and Paras Singh of Dhobaha.
When these two appellants were very much known to the eye witnesses, non-
mention of their names in the evidence as to their participation in firing upon
the deceased, throws a great doubt as to their sharing of the common intention.
The convictions and sentences of these two appellants also cannot, therefore,
be sustained.
For
the reasons aforesaid, the convictions and sentences of Hare Krishna Singh and Paras
Singh of Dhobaha are affirmed. Criminal Appeal No. 690 of 1982, in so far as it
relates to Hare Krishna Singh and Paras Singh of Dhobaha, is dismissed.
17 The
conviction and sentence of Sheo Narain Sharma are set aside A and he is
acquitted of all the charges. Criminal Appeal No. 690 of 1982, in so far as it
relates to Sheo Narain Sharma, is allowed.
Criminal
Appeal No. 615 of 1982 is allowed. The conviction and sentence of Ram Kumar Upadhaya
are set aside and he is acquitted of all the charges.
Criminal
Appeal No. 616 of 1982 is allowed. The conviction and sentence of Paras Singh
of Birampur are set aside and he is acquitted of all the charges.
N.V.K.
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