Mano Dutt & ANR. Vs.
State of U.P.
[Criminal Appeal
No.77 of 2007]
J U D G M E N T
Swatanter Kumar, J.
1.
The
present appeal is directed against the judgment and order dated 21st March, 2006
of the High Court of Judicature at Allahabad, Lucknow Bench, which had partially
accepted the appeal by acquitting the accused persons of the offence under
Section 323 read with Section 34 of the Indian Penal Code, 1860 (hereafter, `IPC'),
but affirmed the imposition of life imprisonment for the offence under Section 302
read with Section 34, IPC as awarded by the learned trial court vide its judgment
dated 6th January, 1982.
The trial court had found
the four accused Ram Dutt (now dead), Thakur Prasad, Mano Dutt and Ram Narain
guilty of an offence under Section 302, read with Section 34, IPC and also
offence under Section 323, read with Section 34, IPC and had awarded them life imprisonment
for the first offence and a fine of Rs.1,000/- for the second, in default of
which, to undergo rigorous imprisonment for three months.
2.
This
is a case where the incident, on 22nd October, 1977, which resulted in the death
of Siya Ram, is admitted between the parties. The primary question that falls
for determination is, as to which of the parties was the aggressor, besides determining
the merits of the contentions raised on behalf of the appellant.
Before noticing the
prosecution version, we may notice that in the present case, six accused were charged
and tried for an offence under Sections 302 and 323, both read with Section 34
IPC. Learned trial court, vide its judgment dated 6th January, 1982 had acquitted
accused Sher Bahadur and Jagdish, while it convicted Ram Dutt, Thakur Prasad, Mano
Dutt and Ram Narain for both the afore- 2stated offences. During the pendency
of the appeal before the High Court, Ram Dutt died and the Court convicted the other
accused vide its judgment under appeal.
3.
Thakur
Prasad had filed a separate appeal challenging the said judgment of the High
Court, being SLP (Crl.) No.3929 of 2006 titled Thakur Prasad v. State of U.P.
which came to be dismissed by order of this Court dated 18th August, 2006. In other
words, the conviction of the accused Thakur Prasad under Section 302 read with
Section 34 IPC attained finality. However, vide the same order, this Court granted
leave to appeal in the case of Mano Dutt and Ram Narain. This is how the
present appeal has come up for final hearing before us.
4.
The
case of the prosecution is that Mano Dutt, Ram Narain and Jagdish are real
brothers while Ram Dutt and Thakur Prasad are their cousins. On 22nd October, 1977
during day time, Siya Ram was doing earth filling in front of his sariya (a place
of tethering cattle). The four accused, namely, Ram Dutt, Thakur Prasad, Ram
Narain and Mano Dutt out of the six named accused had come there and asked Siya
Ram not to do earth filling. Siya 3Ram told them that it was his land and he
would not stop the work of land filling.
Thereupon, Siya Ram called
certain villagers. The matter was discussed with the villagers, all of whom said
that the land was that of Siya Ram and he could carry on with land filling on
his own land. After deciding this, the villagers went away and Siya Ram resumed
the filling of the earth. Accused Ram Dutt, Thakur Prasad, Mano Dutt, Ram
Narain, Jagdish and Sher Bahadur, armed with lathis, came there and chased Siya
Ram. They said that they would finish Siya Ram. Siya Ram was able to run for a short
distance away, whereafter all the accused surrounded him in front of the house of
one Fateh Mohmad. Accused Ram Dutt, Thakur Prasad, Mano Dutt and Ram Narain
started beating Siya Ram with their lathis.
The father of Siya
Ram, Nankoo and brother Salik Ram rushed towards Siya Ram to rescue him. Accused
Sher Bahadur and Jagdish intercepted them in front of one Chiddan's door and beat
them with their lathis. Siya Ram fell down after getting the lathi blows. Siya
Ram raised alarm, but still these accused persons continued to beat him and in the
meanwhile, Smt. Sangam Devi, Bhurey and Pradhan came there. The Pradhan
snatched the lathis of the four accused, who then fled away from the scene. Siya
Ram 4sustained serious injuries. Nankoo and Salik Ram also sustained injuries. Pradhan
and the other villagers took the injured to the Police Station.
5.
The
incident was narrated in the form of a report of occurrence, by the deceased
Siya Ram, who was in an injured state at that time. The same was transcribed by
Panna Lal Pandey, PW3 and submitted to the Police Station, where a First Information
Report (hereafter, `FIR') Exhibit Ka7 was prepared.
6.
On
this statement, the officer present at the police station had registered a case
under Section 308, IPC and the investigation was taken over by C.R. Malviya. During
investigation, C.R. Malviya recorded the statements of a number of witnesses as
well as sent Siya Ram to the hospital. Siya Ram succumbed to his injuries on
24th October, 1977 at about 8.00 a.m. in the District Hospital, Faizabad. Upon
his death, the offence was converted to one under Section 302, IPC. The Investigating
Officer visited the spot, recovered blood-stained earth, Ex. Ka-8 and prepared
the site plan, Ext. Ka-9 and examined various witnesses.
After completion of
the investigation, the charge sheet was filed before the court of 5competent jurisdiction.
The trial Court vide its order dated 30th July, 1980 charged the accused with
offences under Sections 147, 304/149 and 323/149. However, subsequently, the charge
was amended and all the accused were charged with offences under Sections 302/149-147
and 323/149, IPC. The accused pleaded not guilty and faced trial before the
Court of Sessions.
As already noticed, out
of the six accused, four were convicted by the trial court. One accused, namely
Ram Dutt, died during pendency of the appeal before the High Court and all the other
accused were acquitted of the offences under Section 323/34 IPC, but convicted
for offences under Section 302/34 IPC. For the reasons afore-recorded in the
present appeal, we are only concerned with the two accused, namely Mano Dutt,
and Ram Narain.
7.
The
prosecution had examined Smt. Sangam Devi, PW-1 (wife of the deceased), Salik Ram,
PW-2 (injured witness). Panna Lal Pandey, PW-3 (scribe of Siya Ram's statement)
and two doctors, Dr. S.N. Rai (P.W.-4) and Dr. Surya Bhan Singh (P.W. 5), besides
examining the formal witnesses.
8.
Dr.
Surya Bhan Singh, PW-5 had examined Salik Ram when he was brought to the
hospital on the evening of 22nd October, 1977 at about 4.30 p.m. He had noticed
lacerated bone-deep wound, 3 cm x 0.5 cm, on the frontal region of the scalp, from
which blood was oozing. The doctor described the injuries on the body of the
deceased as follows:- "(1) Lacerated wound mark 3 cm x 0.5 cm on the left side
of head on the parietal region. (2) Bruise 9 cm x 1.5 cm in the left scapula region.
(3) Bruise 12 cm x 1.5 cm in the right scapula region of scalp. (4) Bruise 9 cm
x 2 cm in the right scapular region of scalp. (5) Bruise 19 cm x 2 cm in the right
scapular region of scalp."
9.
This
very doctor had examined Salik Ram, son of Nankoo and had noticed as many as five
injuries on his body. He had also examined Nankoo and noticed four injuries on his
person. The injuries on the bodies of Nankoo and Salik Ram both were found to
be simple injuries and were caused with blunt object like lathi, while Siya Ram
was transferred to the specialist for obtaining expert opinions on his injuries
and for his treatment.
10.
After
the death of Siya Ram on 24th October, 1977, the post-mortem on the body of the
deceased was performed by Dr. S.N. Rai, PW-4, who noticed four ante-mortem
injuries as follows:-
i.
"Lacerated
wound 2.5 cm x > cm x bone deep, on Rt. side head, 6.5 cm above the eyebrow
of right eye.
ii.
Lacerated
wound 2.5 cm x 1 cm x bone deep injures 1-2 cm on the left side of the head.
iii.
Contusion
6 cm x 4 cm in the right side of the face involving whole orbital area.
iv.
Diffused,
swelling on the Rt. Side of head parietal region."
11.
Upon
internal examination of the body of the deceased, he also found the following
internal injuries:-
i.
"Comminuted
fracture in the area of 11.5 cm x 10 cm on the right Parietal Region of the
skull.
ii.
Comminuted
fracture in the area of 6.5 cm x 6.5 cm in the frontal Bone was found.
iii.
Comminuted
fracture in the area of 10 cm x 4 cm on the left side of temporo parietal
Region was found.
iv.
Large
quantity of blood was accumulated on the right side of head between skin and
bone."
12.
The
doctor stated that, in his opinion, the cause of death was a shock due to ante-mortem
injuries and loss of blood. He specifically stated that all the injuries are possible
by blows of lathis. In his cross-examination, he clearly stated that these
injuries are ordinarily sufficient to cause death.
13.
It
needs to be noticed that one of the appellants, namely Ram Dutt, had also allegedly
lodged a report against the deceased Siya Ram, injured Nankoo, and two other sons
of Nankoo, i.e., Salik Ram and Ram Dhiraj. After registering the FIR, the
Investigating Officer in his report had also stated that the accused Ram Dutt
had sustained some injuries on his person.
14.
The
conviction of the accused and the impugned judgment have been challenged inter alia,
but primarily, on the following grounds:-
i.
The
prosecution did not examine the material witnesses like the investigating officer
as well as other witnesses who, as per the case of the prosecution, were actually
present at the time of occurrence of the incident.
ii.
According
to the prosecution, PW-1 and PW-2 both are eye- witnesses but they are the widow
and brother of the deceased, and therefore, are interested witnesses and their statement
cannot be relied upon by the Court.
iii.
The
accused persons themselves had lodged a counter report against the deceased,
PW-2 and other relations of the deceased, alleging attack/aggression. This was not
a counter blast but a true and correct happening of events as reported by the accused,
against the complainants, in which the accused Ram Dutt had suffered injuries. For
these reasons, the accused should be entitled to the benefit of doubt and
consequently, to an order of acquittal.
iv.
Even
if the entire prosecution story is assumed to be correct, even then it does not
constitute an offence under Section 302, IPC. In the facts and circumstances of
the case, at the worst, the accused could be held guilty of an offence
punishable under Section 304, Part-I, IPC.
v.
The
deceased had only three injuries, therefore, on the one hand, the story that six
accused had assaulted him with lathis even when he was lying on the ground is not
physically possible and on the other hand, the prosecution has failed to explain
the injuries suffered by Ram Dutt, accused. Thus, it creates a specific doubt
in the story of the prosecution.
vi.
Lastly,
it is contended that the dismissal of the other Special Leave Petition filed by
Thakur Prasad does not have any bearing on the fate of the present appeal,
inasmuch as the Court is vested with wide powers in terms of Section 38, IPC, to
deal with the case of the present appellants on distinct and different footing.
Even if Thakur Prasad's conviction for an offence under Section 302 read with Section
34 IPC has attained finality, the appellants may still be acquitted.
15.
We
have already noticed that the incident in question is admitted. According to the
accused, the fight was started by the deceased and his relations and they had exercised
their right of private self-defence, to protect themselves. To the contrary,
according to the witnesses of the prosecution as well as according to the version
given by the deceased, the accused were aggressive and had attacked the deceased
and his family members after deliberately planning to assault and kill them.
It is not a case
where the circumstances, even remotely, can be construed to have satisfied the
ingredients of self-defence. We may examine few of the circumstances in this
case. From the record, it appears that Ram Dutt had lodged a complaint of the
incident that took place on 22nd October, 1977 at about 12.00 p.m. According to
this report the accused in that complaint (i.e., the deceased and his family
members) had been putting earth on Ram Dutt's sariya, which he had forbade. There
was verbal altercation between the parties and then the accused in that complaint
(i.e., the deceased herein) 12started assaulting him with lathis and it was only
by raising an alarm that the people of the village came to the place of
occurrence and his life was saved. According to this complaint, he had suffered
injuries on his head.
16.
Firstly,
this complaint had not been proved by Ram Dutt during the trial. Accordingly, the
concurrent view taken by the courts below, that this document cannot be relied in
evidence, cannot be faulted with. Furthermore, Ram Dutt did not examine a
single witness in his defence to prove that he was attacked by the deceased and
his family members or that they were putting earth at the door of Ram Dutt's sariya.
No doubt, Ram Dutt was subjected to medical examination by the Medical Officer vide
Ex.Kha 1.
It was noticed that he
had suffered lacerated wounds on the central and other regions of skull, and had
complained of pain in left leg. This would show that Ram Dutt had suffered some
injuries but where and how these injuries were suffered, was for him to
establish, particularly when he had taken a specific stand that the deceased
and his family members were at fault and were aggressive. He claims that they
had caused serious injuries to his person and this incident happened in the presence
of the villagers. It is a settled canon of evidence jurisprudence that one who
alleges a fact must prove the same.
It is also his case
that the prosecution has not explained the injuries on his person and, therefore,
the argument impressed upon the Court is that the attack with lathis was in
exercise of self-defence and the failure of the prosecution to explain injuries
on the person of Ram Dutt is a circumstance which creates a serious doubt in the
story of the prosecution. We are not impressed with this contention primarily
for the above reasons and also because of the fact that if the police was not
investigating into the complaint, Ram Dutt was not helpless or remediless in
law. He could have filed an application before the concerned Magistrate in
accordance with the provisions of Code of Criminal Procedure, 1973 (Cr.P.C.)
for directing the police to investigate and even to summon the accused in that
complaint.
But none of the
accused, including Ram Dutt, took any of the steps available to them in law. When
a person claims exercise of private self-defence, the onus lies on him to show
that there were circumstances and occasions for exercising such a right. In
other words, these basic facts must be established by the accused. Just because
one circumstance exists amongst the various factors, which appears to favour
the person claiming right of self-defence, does not mean that he gets the right
to cause the death of the other person. Even the right of self-defence has to
be exercised directly in proportion to the extent of aggression.
17.
As
per the medical report, the injuries on the body of Ram Dutt were found to be `simple
in nature'. On the other hand, we have a complete version of the prosecution, duly
supported by witnesses, out of which PW1 and PW2 are eye-witnesses to the
occurrence. The bone of contention between the parties was the statement of the
deceased, that he was filling the earth over some land, which he claimed to be
his land; according to the accused, the earth-filling was carried out in front of
the door of Ram Dutt.
According to both the
parties, the villagers came to the spot. Out of the two versions, the one put forward
by the prosecution and the other in the defence of the accused, the version of
the prosecution, as has been disclosed by the eye-witnesses, is trustworthy,
reliable and entirely plausible in the facts and circumstances of the case. The
mere fact that the Investigating Officer has not been produced, or that there is
no specific explanation on record as to how Ram Dutt suffered these injuries,
would not vitiate the trial or the case of the prosecution in its entirety.
These claims of the
accused would have been relevant considerations, provided the accused had been
able to establish the other facts alleged by them. It is not always mandatory
for the prosecution to examine the Investigating Officer, provided it can
establish its case beyond reasonable doubt even in his absence. The present case
certainly falls in the latter class. Where the accused lead no defence, they
cannot take benefit of the fact that the prosecution did not examine any independent
witnesses. The accused would be deemed to have been aware of the consequences in
law when they gave a statement admitting the occurrence but attributing aggression
and default to the deceased and his family members.
18.
Accused
Thakur Prasad is also stated to own a sariya and was also allegedly using his lathi
in self-defence, as according to their story, four persons with the deceased
and his family members had attacked them. Strangely, Thakur Prasad suffered no
injury. These are the circumstances which, examined cumulatively, would provide
support to the case of prosecution.
19.
Another
contention raised on behalf of the accused/appellants is that only family members
of the deceased were examined as witnesses and they being interested witnesses cannot
be relied upon. Furthermore, the prosecution did not examine any independent
witnesses and, therefore, the prosecution has failed to establish its case
beyond reasonable doubt. This argument is again without much substance. Firstly,
there is no bar in law in examining family members, or any other person, as witnesses.
More often than not, in
such cases involving family members of both sides, it is a member of the family
or a friend who comes to rescue the injured. Those alone are the people who
take the risk of sustaining injuries by jumping into such a quarrel and trying to
defuse the crisis. Besides, when the statement of witnesses, who are relatives,
or are parties known to the affected party, is credible, reliable, trustworthy,
admissible in accordance with the law and corroborated by other witnesses or documentary
evidence of the prosecution, there would hardly be any reason for the Court to
reject such evidence merely on the ground that the witness was family member or
interested witness or person known to the affected party.
There can be cases
where it would be but inevitable to examine such witnesses, because, as the events
occurred, they were the natural or the only eye witness available to give the
complete version of the incident. In this regard, we may refer to the judgments
of this Court, in the case of Namdeo v. State of Maharashtra, [(2007) 14 SCC 150].
This Court drew a clear distinction between a chance witness and a natural
witness. Both these witnesses have to be relied upon subject to their evidence
being trustworthy and admissible in accordance with the law.
This Court, in the
said judgment, held as under: "28. From the aforesaid discussion, it is clear
that Indian legal system does not insist on plurality of witnesses. Neither the
legislature (Section 134 of the Evidence Act, 1872) nor the judiciary mandates that
there must be particular number of witnesses to record an order of conviction against
the accused.
Our legal system has always
laid emphasis on value, weight and quality of evidence rather than on quantity,
multiplicity or plurality of witnesses. It is, therefore, open to a competent court
to fully and completely rely on a solitary witness and record conviction. Conversely,
it may acquit the accused in spite of testimony of several witnesses if it is
not satisfied about the quality of evidence. The bald contention that no conviction
can be recorded in case of a solitary eyewitness, therefore, has no force and must
be negatived.
29. It was then contended
that the only eyewitness, PW 6 Sopan was none other than the son of the deceased.
He was, therefore, "highly interested" witness and his deposition should,
therefore, be discarded as it has not been corroborated in material particulars
by other witnesses. We are unable to uphold the contention. In our judgment, a
witness who is a relative of the deceased or victim of a crime cannot be characterised
as "interested". The term "interested" postulates that the witness
has some direct or indirect "interest" in having the accused somehow or
the other convicted due to animus or for some other oblique motive."
20.
It
will be useful to make a reference of another judgment of this Court, in the case
of Satbir Singh & Ors. v. State of Uttar Pradesh, [(2009) 13 SCC 790],
where this Court held as under: "26. It is now a well-settled principle of
law that only because the witnesses are not independent ones may not by itself be
a ground to discard the prosecution case. If the prosecution case has been supported
by the witnesses and no cogent reason has been shown to discredit their statements,
a judgment of conviction can certainly be based thereupon.
Furthermore, as noticed
hereinbefore, at least Dhum Singh (PW 7) is an independent witness. He had no animus
against the accused. False implication of the accused at his hand had not been suggested,
far less established."
21.
Again
in a very recent judgment in the case of Balraje @ Trimbak v. State of Maharashtra
[(2010) 6 SCC 673], this Court stated that when the eye-witnesses are stated to
be interested and inimically disposed towards the accused, it has to be noted that
it would not be proper to conclude that they would shield the real culprit and
rope in innocent persons. The truth or otherwise of the evidence has to be weighed
pragmatically. The Court would be required to analyse the evidence of related witnesses
and those witnesses who are inimically disposed towards the accused. But if
after careful analysis and scrutiny of their evidence, the version given by the
witnesses appears to be clear, cogent and credible, there is no reason to
discard the same.
22.
As
per PW5, Dr. Surya Bhan Singh, he had examined Salik Ram Yadav as well as Nankoo
on 22nd October, 1977 itself and noticed as many as five injuries on Salik Ram and
four injuries upon the person of Nankoo. He stated that the deceased was the
son of Nankoo, while Salik Ram was his brother. These injuries were suffered by
them from a blunt object. Salik Ram was examined as PW2 and his statement is cogent,
coherent, reliable and fully supports the case of the prosecution. However, the
other injured witness, Nankoo, was not examined.
23.
In
our view, non-examination of Nankoo, to which the accused raised the objection,
would not materially affect the case of the prosecution. Normally, an injured witness
would enjoy greater credibility because he is the sufferer himself and thus,
there will be no occasion for such a person to state an incorrect version of the
occurrence, or to involve anybody falsely and in the bargain, protect the real culprit.
We need not discuss more elaborately the weightage that should be attached by
the Court to the testimony of an injured witness. In fact, this aspect of
criminal jurisprudence is no more res integra, as has been consistently stated by
this Court in uniform language.
We may merely refer to
the case of Abdul Sayeed v. State of Madhya Pradesh [(2010) 10 SCC 259], where
this Court held as under: "28. The question of the weight to be attached
to the evidence of a witness that was himself injured in the course of the
occurrence has been extensively discussed by this Court. Where a witness to the
occurrence has himself been injured in the incident, the testimony of 21such a witness
is generally considered to be very reliable, as he is a witness that comes with
a built-in guarantee of his presence at the scene of the crime and is unlikely
to spare his actual assailant(s) in order to falsely implicate someone.
"Convincing evidence
is required to discredit an injured witness." [Vide Ramlagan Singh v.
State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab,
Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar
v. State of U.P. (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v.
State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v.
State of Maharashtra.] 29. While deciding this issue, a similar view was taken in
Jarnail Singh v. State of Punjab, where this Court reiterated the special
evidentiary status accorded to the testimony of an injured accused and relying on
its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) "28. Darshan
Singh (PW 4) was an injured witness.
He had been examined by
the doctor. His testimony could not be brushed aside lightly. He had given full
details of the incident as he was present at the time when the assailants reached
the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka this Court has
held that the deposition of the injured witness should be relied upon unless there
are strong grounds for rejection of his evidence on the basis of major contradictions
and discrepancies, for the reason that his presence on the scene stands established
in case it is 22 proved that he suffered the injury during the said incident. 29.
In State of U.P. v. Kishan Chand a similar view has been reiterated observing that
the testimony of a stamped witness has its own relevance and efficacy.
The fact that the witness
sustained injuries at the time and place of occurrence, lends support to his testimony
that he was present during the occurrence. In case the injured witness is subjected
to lengthy cross-examination and nothing can be elicited to discard his testimony,
it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the
considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied
upon by the courts below."
30. The law on the point
can be summarised to the effect that the testimony of the injured witness is accorded
a special status in law. This is as a consequence of the fact that the injury
to the witness is an inbuilt guarantee of his presence at the scene of the crime
and because the witness will not want to let his actual assailant go unpunished
merely to falsely implicate a third party for the commission of the offence. Thus,
the deposition of the injured witness should be relied upon unless there are strong
grounds for rejection of his evidence on the basis of major contradictions and discrepancies
therein."
24.
To
the similar effect is the judgment of this Court in the case of Balraje @
Trimbak (supra).
25.
Another
argument with regard to appreciation of evidence is that the material witness
having not been examined and the entire prosecution story being based upon the statements
of PW1 and PW2, who are the interested witnesses, the entire prosecution
evidence suffers from a patent infirmity in law.
26.
Again,
we are not impressed by this contention, primarily for the reasons afore-recorded.
Furthermore, it may also be noticed that non-examination of any independent witness,
in the facts of the present case, is not fatal to the case of the prosecution. The
Court can convict an accused on the statement of a sole witness, even if he was
a relative of the deceased and thus, an interested party. The condition precedent
to such an order is that the statement of such witness should satisfy the legal
parameters stated by this Court in a catena of judgments.
Once those parameters
are satisfied and the statement of the witness is trustworthy, cogent and corroborated
by other evidence produced by the prosecution, oral or documentary, then the
Court would not fall in error of law in relying upon the statements of such
witness. It is only when the Courts find that the single eye-witness is a 24wholly
unreliable witness that his testimony is discarded in toto and no amount of corroboration
can cure its defect. Reference in this regard can be made to the judgment of this
Court, in the case of Anil Phukan v State of Assam [(1993) 3 SCC 282].
27.
Now
we may examine as to the place and manner in which the incident occurred. It is
a very important aspect of this case that the FIR itself was lodged by the deceased
along with PW3 Panna Lal Pandey who transcribed the same at the police station itself.
The deceased was seriously injured, but was fully aware of what he was doing and
he had no reason to falsely implicate any person. His father and brother had also
been injured in the occurrence. It is specifically recorded in the statement of
these witnesses that when the appellant Mano Dutt and other accused came for the
second time, to the place where the deceased was filling the earth at the
sariya, they gave a lalkar `Maro sale ko' and then assaulted him with lathis.
When he tried to run
away, he fell to the ground near the house of one Fateh Mohd. The blood-stained
earth was collected from the front of Fateh Mohd. doors by the Investigating
Officer vide Ext. Ka-8. Thereafter, the villagers had come and taken the lathis
away from the accused persons. The deceased was taken to the police station and
then to the hospital, where he died on 24th October, 1977. It is evident that
all the accused persons had come prepared, mentally and physically, to assault the
deceased and in furtherance to their common intention, had even given a lalkar to
kill the deceased.
This incident was
witnessed by natural witnesses Nankoo and PW2 Salik Ram, as well as PW1 Smt. Sangam
Devi. Nankoo and Yadav even intervened and tried to protect their son/brother, but
in the process, they also received number of injuries, as is clear from the
medical evidence produced on record. During the course of argument, the learned
counsel for the appellant tried to take advantage of the fact that the deceased
ought to have suffered a number of injuries, if six people had, at the same
time, attacked him with lathis, but he had actually received only three
injuries. Thus, the story of the prosecution was improbable.
28.
We
have no hesitation in rejecting this argument, primarily for the reason that,
as per the medical report and statement of PW5 Dr. Surya Bhan Singh, the
deceased had suffered a number of injuries and not only three. The collection
of the bloodstained earth itself is 26a relevant piece of evidence and provides
the link in the commission and the place of crime. In the case of Kartar Singh v.
State of Punjab [AIR 1961 SC 1787] this Court took the following view: "13.
It follows therefore that the finding of the courts below that the appellant's party
formed an unlawful assembly and that the appellant is constructively liable of
the offences under ss. 302 and 307 IPC, in view of Section 149, is correct.
14. The second contention
that in a free fight each is liable for an individual act cannot be accepted in
view of the decision of this Court in Gore Lal v. State of U.P. This Court said
in that case: "In any event, on the finding of the court of first instance
and of the High Court that both the parties had prepared themselves for a free
fight and had armed themselves for that purpose, the question as to who attacks
and who defends is wholly immaterial," and confirmed the conviction under Section
307 read with Section 149 IPC It may, however, be noted that it does not appear
to have been urged in that case that each appellant could be convicted for the
individual act committed by him. When it is held that the appellant's party was
prepared for a fight and to have had no right of private defence, it must follow
that their intention to fight and cause injuries to the other party amounted to
their having a common object to commit an offence and, therefore, constituted them
into an unlawful assembly. The injuries they caused to the other party are caused
in furtherance of their common object.
There is then no good
reason why they be not held liable, constructively, for the acts of the other
persons of the unlawful assembly, in circumstances which makes s. 149 IPC,
applicable to them. 15. Even if the finding that there were more than five persons
in the appellant's party be wrong, we are of opinion that the facts found that the
appellant and his companions who were convicted had gone from the village armed
and determined to fight, amply justified the conclusion that they had the common
intention to attack the other party and to cause such injuries which may result
in death. Darshan had two incised wounds and one punctured wound.
Nand Lal had two incised
wounds and one punctured wound and two abrasions. The mere fact that Kartar Singh
was not connected with the dispute about the plot of land is not sufficient to hold
that he could not have formed a common intention with the others, when he went with
them armed. The conviction under ss. 302 and 307 read with s. 149, can be converted
into one under ss. 302 and 307 read with s. 34 IPC 16. We, therefore, see no force
in this appeal and accordingly dismiss it."
29.
The
question, raised before this Court for its consideration, is with respect to
the effect of non-explanation of injuries sustained by 28the accused persons. In
this regard, this Court has taken a consistent view that the normal rule is
that whenever the accused sustains injury in the same occurrence in which the complainant
suffered the injury, the prosecution should explain the injury upon the accused.
But, it is not a rule without exception that if the prosecution fails to give
explanation, the prosecution case must fail. Before the non-explanation of the injuries
on the person of the accused, by the prosecution witnesses, may be held to affect
the prosecution case, the Court has to be satisfied of the existence of two
conditions:
i.
that
the injuries on the person of the accused were also of a serious nature; and
ii.
that
such injuries must have been caused at the time of the occurrence in question.
30.
Where
the evidence is clear, cogent and creditworthy; and where the court can
distinguish the truth from falsehood, the mere fact that the injuries on the
person of the accused are not explained by the prosecution cannot, by itself, be
a sole basis to reject the testimony of the prosecution witnesses and
consequently, the whole case of the prosecution. Reference in this regard can be
made to Rajender Singh & Ors. v. State of Bihar, [(2000) 4 SCC 298], Ram Sunder
Yadav & Ors. v. State of Bihar, [(1998) 7 SCC 365, and Vijayee Singh v.
Stateo of U.P. [(1990) 3 SCC 190].
31.
PW4
had clearly noticed that injury on the person of the deceased, Salik Ram Yadav
and Nankoo were all caused by a blunt weapon. He had specifically observed that
the injuries were sufficient, in the ordinary course of time, to cause death
and had, in fact, resulted in the death of the deceased.
32.
The
High Court and the trial court have recorded reasons for returning the concurrent
finding of guilt. The learned counsel for the appellant strenuously argued that
one of the accused, namely Ram Dutt, who is now dead, had in his statement under
Section 313 Cr.P.C., stated that the land in between the house of the parties
was his and that despite his protest, Salik Ram, Siya Ram, Ram Dhiraj and Nankoo
were putting earth on that land when he again objected, all of them ran after him,
rounded him up at the door of Fateh Mohd. and started beating him. Thakur Prasad,
cousin of Ram Dutt, came and in response, wielded the lathi in his defence. To similar
effect is the statement of Thakur Prasad. In 30view of this stand, the other accused
cannot be said to have been involved in the commission of the crime.
This argument is a
self-serving submission. All the accused are related to each other. Once the plea
of self-defence is disbelieved, then a statement of a co-accused under Section
313 CrPC cannot be of any advantage to the co-accused, as the prosecution has been
able to establish its case beyond any reasonable doubt. In the present case, in
the chain of events, nowhere does the plea of self-defence as sought to be raised
by the appellant-accused or other accused, fit in. The defence has miserably failed
to prove any fact or any need for resorting to commission of the offence in self-defence.
To begin with, the police
had charged this accused for an offence under Section 302 read with Section 149
and 323 of the IPC. However, two of the accused were acquitted by the trial court
and the remaining were convicted of an offence under the said Sections 302/34
and 323/34, IPC. The High Court acquitted all the accused of offence under
Section 302/34 IPC and unfortunately, Ram Dutt died during the pendency of that
appeal. Because the alleged number of accused had become less than five, nature
of the offences were changed from offence under Section 149 to Section 34, IPC.
In face of the acquittal of the two accused, which was not assailed by the
State, it must be taken that they were not present. Then remain three accused, Thakur
Dass and the present appellants.
Thus, in the circumstances
of the case, the possibility of presence of all other persons in the appellants'
party cannot be excluded. It is also not quite possible that the accused have
deposed incorrectly before the Court in regard to the number of persons and their
participation. Even where there are less than five persons who are accused, but
the facts and the evidence of the case is convincing as in the present case, where
the accused had returned to the place of occurrence with complete preparedness
and after giving lalkar had attacked the deceased there, they have to be held liable
for commission of the crime (Refer: Kartar Singh vs. State of Punjab, AIR 1961 SC
1787).
The learned counsel for
the respondent-State also relied upon the judgment in the Yunis @ Kariya v. State
of M.P. [(2003) 1 SCC 425] to contend that an overt act on the part of one of the
accused is immaterial when his presence, as part of the unlawful assembly, is established.
This case was for an offence under Section 302/149 IPC and, therefore, would
not squarely apply to the present case as it has been held by 32the Court that the
accused was not constituting an unlawful assembly of five or more persons. However,
it cannot be ignored that the extent of participation, even in a case of common
intention covered under Section 34 IPC would not depend on the extent of overt act.
If all the accused have committed the offence with common intention and inflicted
injuries upon the deceased in a pre-planned manner, the provisions of Section 34
would be applicable to all.
33.
The
learned counsel had also relied upon the judgment of this Court in Marimuthu &
Ors. v. State of Tamil Nadu [(2008) 3 SCC 205] to contend that this was a fight
at the spur of the moment and the conviction of the appellants could be
converted into that under Section 304, Part I of the IPC. This judgment is
distinguishable on facts and has no application to the present case. It was not
a dispute which arose at the spur of the moment as the evidence clearly shows that
the accused had gone again to the site in question with a common intention and with
the preparedness to assault and even kill the deceased.
Even the site plan, Ex.Ka9
clearly shows that all these places, i.e. the land on which the deceased was putting
the earth, the house of Fateh Mohd., the house of the accused and that of the deceased
were all nearby. This is even fully corroborated by the oral evidence. Thus, on
the basis of the documentary and ocular evidence, we are fully satisfied that the
prosecution has been able to prove its case beyond reasonable doubt and has brought
home the guilt of the accused under Section 302 read with Section 34, IPC.
34.
Having
come to the above finding, we do not consider it necessary to dwell on the
question as to what is the effect in law of dismissal of Thakur Prasad's Special
Leave Petition by this Court, vide Order dated 18th August, 2006.
35.
What
shall be the correct interpretation of Section 34 with reference to Section 38
IPC, in view of the facts of the present case, or even otherwise, is left
undecided.
36.
For
the reasons afore-recorded, this appeal is dismissed.
.................................J.
(A.K. Patnaik)
.................................J.
(Swatanter Kumar)
New
Delhi,
February
29, 2012
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