JUDGMENT
S.H.S. Abidi, J.
1. Appellant Ramjas Ahir has preferred this appeal against his conviction under Sections 323/147 of the Indian Penal Code and sentence of six years rigorous imprisonment under the each court. Kesho Ahir and Suraj Raut alias Suraj Kurmi have also preferred this appeal against his conviction and sentence under Sections 323/148 of the Indian Penal Code and sentence of one year each to each under such counts. The other accused persons have been acquitted of the charges levelled against them.
2. In short, the prosecution case is that one Jagdish Kurmi being the settlee of the disputed land of Khata No. 2, plot No. 359 from State Government, on 4.5.1975 was getting paddy transplanted along with others. Suddenly 70-80 persons variously armed with lathi, bhala and garasa came there. Sk. Ishaque (now dead) leading the mob, ordered the mob to kill, thereupon all the members of the mob started assault with lathi, bhala, pharsa and stones. The informant Shankar Sah. P.W. 9 was assaulted by Habibullah with bhala and by Ramjas with a stone. Kesho Ahir assaulted Mama of Jagdish with bhala, Suraj Kurmi assaulted Baijnath with bhala. Ramjas set the school to fire. The informant, identified besides the above named persons, also Dasarath, Bhola, Sk. Wazir, Sk. Adham, Sk. Bagar, Sk. Karmullah, Sk. Habibullah and Munni Lal. Shankar Sah. P.W. 8 gave a written report to the officer-in-charge of Sheikarpur police station on 4.5.1975 which become the basis of the First Information Report, The case was investigated by Chandrama Prasad Singh, A.S.I. (P.W. 12) who after completing the investigation, submitted charge sheet against the appellant and the others. Another first information report (Ext. B) is said to have been filed on 4.5.1975 at about 5 p.m. by one Sanaullah. This has been prove I by P.W. 12 also, the Investigating officer of this case saying that he had also recorded the same. From that counter F.I.R. (Ext. 8), it appears that the informant in that case was claiming his possession over the disputed land. On 4.5.1975 at about 2 p.m. the informant and others of that case had gone to plough the land and were sloughing the same on which Jagdish Kurmi reaching there orderred to assault two persons, namely, Sk. Adhara and Habibullah sons of Rahmatulla and Sudan Mian respectively who are said to have died in this case. D.W. 1 Sk. Sadique has been examined by the defence to prove two injury reports, Exts. A and Al.
3. The prosecution, in support of its case, has examined 16 witnesses namely, Janak Raut, Keshwar Raut, Shankar Raut, P.Ws. 1, 2 and 3 out of whom P.Ws. 2 and 3 are injured. P.W. 4 Rameshwar Raut has been tendered. Sugandhi Raut, Baijnath Raut, Shankar Sah. P.Ws. 5, 7 and 9 are other injured eye-witnesses. Besides, them, Fuldeo Raut and Jagdish Kurmi P.Ws. 6 and 10 are the eye-witnesses. P.W. 11 Dr. Jogesh Kumar had examined the injured and has submitted the injury reports Ext. 1 series. P.W. 12, Chandrama Prasad Singh, is the Investigating Officer of this case. One Md. Hafiz, P.W. 13 is a formal witness, who has submitted the charge sheet in both the cases. Gopal Prasad, Jagamath Prasad and Hira Pandey P.Ws. 14, 15 and 16 are other formal witnesses.
4. The learned trial court, after considering the entire material on the record, has convicted and sentenced the appellants as said above.
5. The learned Counsel appearing for the appellants has urged that in this case, the prosecution has failed to give out about the death of two persons namely, Sk. Adham and Habibullah during the course of same transaction of marpit and so, on account of non-explanation of the injuries on the side of the defence, the details of the occurrence has not been given out, so the case of the prosecution may not be accepted, fn support of this contention, the learned Counsel for the appellant has referred to the decisions in the cases of Mohar Rai v. State of Bihar AIR 1968 SC 1261; Laxmi Singh v. State of Bihar AIR 1976 SC 2263; Sonelal v. The State of Uttar Pradesh AIR 1981 SC 1379. He has also contended that event the right of self defence have been proved by the appellants which was made out from the material on the record though no specifically pleaded. The learned Counsel for the appellants has also referred the cases of Vijayee Singh v. State of Uttar Pradesh 1990 Cr LJ 1510 and Deo Narain Rai and Ors. v. The State of Bihar, 1988 BBCJ 86. It was also contended that the counter F.I.R. Ext. B can be looked into which has been brought on the record and has been proved by P.W. 12 who had recorded the same.
6. To appreciate the contentions of the learned Counsel for the appellants, first the evidence lead by the prosecution will have to be scrutinized/and then the contentions in the light of the observations made by the Supreme Court will be considered.
7. Shankar Sah, P.W. 9 is the informant in this case who says that on the date of the occurrence Jagdish Kurmi along with his labourers had gone to get paddy transplanted in the land in dispute. He was also there to take Khaini. At about 2 p.m. a mob of about 70-80 from various villages came to the land. The mob was being leaded by one Sk. Ishaque who ordered to kill Jagdish Kurmi, on which the mob attacked Jagdish Kurmi and others lathi bhala, farm and railway stones. HabibulJah assaulted the informant with bhala on his left hand. Kesho assaulted Mama of Jagdish with bhala, Suraj assaulted Baijnath with bhala, other persons started pelting stones kept by the side of the Railway line. Ramjas set the school to fire. The informant besides the above named persons identified Dashrath, Bhola, Sic. Wazir, Sk. Adham, Sk. Bagar, Sk. Kannullah, Sk. Habibullah and Munni Lal.
8. The next eye-witness is P.W. 1 Janak Rant who is not an injured witness and has said that he was in his house from where, he saw the accused persons going and so he followed them and saw the occurrence. He knew Jagdish Kurmi. There was a cross case against Jagdish Kurtni in which his brother Keshwar Raut is accused. He has said that there was no marpit from the side of Jagdish Kurmi and he had not seen the marpit though there were mob. He went to the village and got information about the death of two persons after two hours. This witness later on said that he had not seen Habibullah and Sk. Adham on the spot. He denies that there was any school in the Marai. He said that Sk. Ishaque had kept his Marai for looking after his field. There was Government School in the village in the verandah of Nathuni. He denied that he was in collusion with Jagdish Kurmi.
9. P.W. 2 is an injured eye-witness who has said that he was working as labourer of Jagdish Kurmi and planting paddy in the field. Jagdish Kurmi, Shankar Sah and Baijnath Raut and other labourers were there and they also saw the occurrence. Keshwer assaulted him by bhala on the left leg. In cross-examination he has said that he was also an accused in the cross case. Jagdish had fixed Bagicha which was cut by Ishaque and so he was also accused with Jagdish and the appeal is pending in the High Court. He said that he had seen Sk. Adham and Habibullah but had not seen the injured or dead persons. He had received injuries of stones but he had become unconscious. He went away to the village and not come back. In the evening, he got information about the death of two persons. He has denied the defence suggestions.
10. Shankar Raut, P.W. 3 is also an eye-witness and has deposed on the point of assault over different persons exactly in the same manner as said by P.W. 10 and 9 that P. Ws. 2 and 3 are accused in the counter case and are injured while P.W. 1 Janak Raut is neither accused in the counter case nor an injured. He has further stated about the assault made by Ramjas, Kesho, Suraj and Habibullah. He also identified almost all the accused in the dock. He said that he came to know about the death of Habibullah and Sk. Adhatn in the evening. P.W. 5 Sugandhi Raut is also an injured witness wino said that he was working as a labourer when the mob came and on the order of Sk. Ishaque, the mob started assaulting the prosecution party. Appellant Kesho Ahir assaulted him by bhala but he did not get any injury. Habibullah attacked on him by bhala and so he stopped by which cut (sic) take get injury his hand. He said that Sk. Ishaque lud given order to get the Marai fire. He also said that there was no school in the Marai and that he was seeing the possession of Jagdish over the disputed land for the last fifty year is since his age of discretion. He had seen Sk. Adham and Habibullah but he could not say as to who killed them. He admits that he was also an accused in the cross case.
11. P.W. 6 Fuldeo Raut the other injured eye-witness said that he had gone there to arrange for a bullock cart where he saw the mob coming and Ishaque ordering to kill. Kesho assaulted aim in his stomach by bhala. He said that there was no enmity with accused. He had fallen down on being injured. He and others were lifted by the villagers and taken on bullock cart. He could also not say as to who killed Adham and Habibullah. He said that he was also an accused in the cross case. P.W. 7 Baijnath Raut has also deposed about the occurrence as said by other P.Ws. He said that appellant Suraj Kurmi had assaulted him by bhala (sic) on his head and shoulder. In the hospital he had heard about the death of two persons. He did not remember as to who assaulted him further. He has said that there was a proceeding under Section 144, Cr.P.C. between the informant and the appellants. He denied that there was any school in the Marai. He denied the suggestions of the defence.
12. P.W. 9 Shankar Sah has said that he was at the place of occurrence and supported the statement made by him in the written report. He said that Nathuni, (Ishaque) leading a mob of 70-80 persons, came armed with bhala, garasas and other weapons. Regarding assault he stated that Sk. Ishaque ordered for the assault as a result of which Habibullah (now dead) assaulted Shankar Sah with bhala. Ramjas assaulted Shankar Sah with stone on the front portion of the head, Suraj Kurmi assaulted Baijnath Kurmi and Shankar Kurmi with bhala on the different parts of the body. Kesho assaulted Fuldeo, Keshwar and Sugandhi with bhala and caused injuries on the different parts of the body. He denied that the disputed land was being used as field and added that he identified all the accused persons as members of the mob in the dock. He stated that his father was granted rent receipt by Bettiah Raj regarding the disputed land but the same has not been produced in the court. He has also admitted that two persons namely, Habibullah Mian and Sk. Adham Ali died at the spot. He has admitted that his eye sight was weak for the last four years. He denied to have any knowledge about the proceedings under Sections 144, 107 or 88 of the Code of Criminal Procedure in respect of the land in dispute. He did not remember if he was an accused in the cross case.
13. P.W. 10 Jagdish Kurmi is also an eye witness and says that he had taken settlement of the land in the year 1976 and the land is in his possession since the death of his father. There was a dispute about this land so proceedings under Sections 107, 188 and 144 Cr.P.C. were there, On the date of occurrence when he was planting paddy in his field with P.Ws. 3, 4, 7 and 9, and the others labourers then Habibullah came with a mob, armed with lathis, bhalas and garasas and ordered to kill. Habibullah assaulted Shankar by bhala which hit him in his hand, while appellant Ramjas assaulted Shankar Sah by stones, Suraj assaulted Baijnath by bhala over his head and shoulder. Suraj also assaulted Shankar by bhala hitting on his head. Kesho had hit Keshwar by bhala on his shoulder and leg. Kesho had hit Sugandhi by bhala on the shoulder and stomach. Others were also assaulted by stones and lathis. Dhan was being uprooting when marpit was going on. Ishaque claimed that there was school in the Marai and that there was play ground. Habibullah and Adham had been killed. He was examined after about half a month. He denied to have seen Habibullah and Sk. Adham being assaulted, Marpit was only once. There was no medical examination oa his injuries. After assault, Fuldeo Raut and others have also fallen down but they ran towards west after getting up. He met the injured in the hospital about 4/4-30 p.m. He denied the allegations made in this case and denied tue suggestion of the defence.
14. P.W. 11 Dr. Jogesh Kumar who has said that he had examined five injured on 5.5.1975 and submitted injury reports Ext. 1 series. He had found injuries on all the injured persons to be simple caused by lathi, bhala and stones. P.W. 12 is the Investigating Officer who has said that on 4.5.1975 a written report was given to him and so he instituted the first information report Ext. 4. He recorded the statements of the injured and reached Narkatiaganj hospital where he received OD slip of the compounder and he found there Fuldeo, Keshwar, Baijnath, Sugandhi and Shankar who were accused in the cross case. At about 8 p.m. he left for the place of occurrence and he inspected the site in the light of torch at five places. He found on the road the bodies of Habibul Jah and Sk. Adham Ali, towards the southern portion of the disputed land. Scattered railway stones were also there. He was then transferred and so the investigation was given over to the 2nd I.O. Md. Hafiz ASI who later on, submitted charge-sheet. In the cross-examination, he said that in the counter case, against 11 accused, P.Ws. 2, 3, 5, 6, 7, 8, and 9 and one Jumrati are the accused as mentioned in the counter report, which has been recorded by him. He says that on Ext. B there is thumb-impression of Sanaullah, taken in the presence of the witnesses. He also said that the place of occurrence of both the cases in the same.
15. In defence, the appellant had examined one witness namely, Sic. Sadique, D.W. 1 who has only proved two rent receipts (Exts. A and A/1). It has been found that Ext. A has been marked once for the receipt said to have been provide by D.W. 1 and then again for the injury report of Sanaullah, which shows that it has been marked for two receipts of different dates. Injury report (Ext. A) of Sanaullah has been marked on 16.12.1983 and Ext. A/1 has been marked on 11.3.1985. Ext. D is the survey map.
16. The first contention of the learned Counsel for the appellants is that the deaths of two persons and the injuries caused to the accused side have not been explained thus, the prosecution case does not give out the genesis of the occurrence and so, it is liable to be disbelieved. The learned Counsel for the appellants has relied on the already referred decisions in the cases of Mohar Rai, Sonelal, Vijayee Singh and Laxmi Singh. In Hart Krishna singh v. State of Bihar 1988 SC 863, the Supreme Court has considered not only the decisions in Mohar Rai and Laxmi Singh but other decisions also in detail. While referring to the decision of Mohar Rai, their Lordships have observed at page 866 (para 8):
“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 alteration 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 moat material point and therefore their evidence is unreliable (3) that in case there is defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on prosecution case. In para 9 at the same page about Laxmi Singh’s case, it was observed. “The principles that have been laid down in Laxmi Singh’s case, AIR 1976 SG 2263 have to be read with 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 Laxmi Singh’s case that the non-explanation of the injuries by the prosecution will not affect the prosecution case where the injuries sustained by the accused are minor and superficial or when the evidence is so clear and cogent, so independent and disinterested, so probable, consistent creditworthy that it far out-weighs the affect of the omissions on the part of the prosecution to explain the injuries”…. Their Lordships have also referred to the case of Bhaba Nanda Sarma v. State of Assam AIR 1977 SC 2252 at p. 8(6 (para 11) and said it has been categorically laid down that the prosecution is not obliged to explain the injuries on the persons 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. Ramlagan Singh v. State of Bihar AIR 1972 SC 2593, 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 para (12) at page 867, their Lordship continued: In Onkarnath Singh v. State of Uttar Pradesh (1976) 3 SCC 276 : AIR 1974 SC 1550 this Court has reiterated its view as expressed in Bankey Lal v. State of Uttar Pradesh (1971) 3 SCC 184 : AIR 1971 SC 2233 and Bhagwan Tarna Patil v. State of Maharashtra (1974) 3 SCC 936 : AIR 1974 SC 21 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; (at page 1557 of AIR) “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 scrutinize their evidence with care.” Each case presents its own features. In some cases the failure to account for the injuries of the accused may undermine its evidence to the case and falsify the subtraction of its story, while in other it may have little or no adverse affect 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 transposition of law of universal application that as soon as it is found that the accused had received injuries in the same transaction is 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 these 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 side receive injuries no question of private defence arises.
Their Lordship have also referred the case of Jagdish v. State of Rajas than, AIR 1979 SC 1010 in which it has been laid down that “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:
(1) that the injuries on the person of the accused must be very serious and severe and not superficial; and
(2) that it must be shown that these injuries must have been caused at the time of the occurrence in question.
Again their Lordships have referred to the case of Munshi Ram v. Delhi Administration AIR 1968 SC 702 wherein it has been laid down 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.”
Their Lordships have further referred (in para 17) to the case of State of Gujrat v. Bat Fatma AIR 1976 SC 1476 wherein rejecting the contention of the accused the court has observed 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. In the end the Supreme Court observed at page 868, Hare Krishna’s, case at paragraph 18 as follows:
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 defence 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.
17. Then the Supreme Court in the latest decision in, Vijayee Singh v. State of U.P., 1990 Cr LJ 1510 at page 1517 (para 9) observed: “In Mohar Rai’s case, 1968 Cr LJ 1749, it is made clear that failure of the prosecution to offer any explanation regarding the injuries found on the accused may show that the evidence related to the incident is not true or at any rate not wholly true.” Likewise in Laxmi Singh’s case, 1976 Cr LH 1736 also it observed that any non-explanation of the injuries on the accused by the prosecution may affect the prosecution case. But such a non-explanation may assume greater importance where the defence gives a version which competes in probability with that of the prosecution, but where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence, and consequently the whole case. Much depends on the facts and circumstances of each case. “Their Lordships after considering the evidence (in vijayee Singh’s case) held at page 1518 in paras 9 and 10 as follows:
(9). …We have carefully considered their evidence and nothing material is elicited in the cross-examination which renders their evidence wholly untrustworthy. No doubt they have not explained the injuries found on accused Nos. 13 and 14. From this alone it cannot be said that the prosecution has suppressed the genesis and origin of the occurrence and has not presented true version…. Though they are interested, we find that their evidence is clear, cogent and convincing. The only reasonable inference that can be drawn is that the two accused persons received the injuries during the course of the occurrence which were inflicted on them by some members of the prosecution party.
(10) As discussed above we are satisfied in this case that non-explanation of injuries on these two accused persons does not affect the prosecution case as a whole but in a case of this nature what all that the defence can contend on the basis of non-explanation of injuries found on these two accused is that the accused could have had a right of private defence or at any rate a reasonable doubt arises in this regard.
In the case of Sone Lal v. State of U.P. (supra) relied on by the learned Counsel for the appellant, the Supreme Court found that the findings of the courts were that the accused were aggressors and were also armed with various weapons, whereas victims were unarmed and injuries were found on the person of the accused and the incident had taken place on the land belonging to the victims. So the deceased were held entitled to the right of private defence, while accused could not claim such right and so the plea that the injuries of the accused were unexplained was not maintainable. In the case of Deo Narain Rai v. State of Bihar (supra) a Division Bench of this Court has held that “it shall be enough to extend benefit of reasonable doubt to the defence if it is found that prosecution’s explanation do not completely make the defence version improbable.
18. Thus from all these, it is clear that the burden of proving the guilt of the accused beyond reasonable doubt is upon the prosecution and the prosecution and the prosecution is not obliged to explain the injuries sustained by the accused. When the prosecution comes with a definite case that the offence has been committed by the accused, then it becomes hardly necessary for prosecution to explain circumstances in which the injuries have been inflicted on the accused. The failure to explain the injuries cannot be a ground to throw away the prosecution’s case as not giving out the genesis of the occurrence or concealing the fact. The fact cannot be lost sight of that the accused is not bound to say anything in defence. When the evidence given by the witnesses is interested or inimical or when the defence given out by the accused competes in probability with the case of the prosecution then the non explanation of the injuries of the accused assumes importance. But when the evidence is clear, trustworthy and, reliable then the non-explanation of the injuries of the accused cannot by itself be a basis to reject the prosecution evidence. The court is to scrutinize the evidence as to how far the evidence of interested or inimical witnesses has ring of truth and inspires confidence. If during the course of such scrutiny of the evidence, some material comes out giving a right of self-defence whether pleaded or not, then the benefit of the same has to be given to the accused.
19. In the instant case, it appears that the occurrence had taken place on 4.5.1976 and in the same transaction and at the same time, the occurrence given out by the defence had taken place, the counter report (Ext. B) has been lodged on the same day. The Investigating Officer (P.W. 12) had also reached the spot and found two dead bodies lying on the road. Both the cases were investigated by P.W. 12 and in both of them, charge-sheets have been submitted by the Investigating Officer as admitted by him. Ext. B has been brought on record by the defence and the Investigating Officer admits that it is the same first information report which had been written by one Sanaullah who had put his thumb-impression on it but he has not been examined. It has come in paragraph 6 of the grounds of appeal that on the basis of the first information report (Ext. B), Sessions Trial No. 83 of 1977 proceeded and the judgment has been delivered on 22.7.1985 by Shri S.K. Verma whereby accused Baijnath Kurmi and Shankar Kurmi have been convicted for committing the murder of Habibullah and S.K. Adham Ali and other accused as said above. In spite of the fact that the judgment dated 22.7.1985 is said to be in existence, no copy of that judgment has been brought on record by the appellants in this case. It is also clear that the order of conviction of that case has not been controverter by the State. But the fact remains that Ext. 8 is there which has been proved by the Investigating officer to have been written by him and signed by him. In the case of Mithulal v. State of M.P. the Supreme Court has said at page 151 (para 4) as follows:
It is elementary that each case must be decided on the evidence recorded in it and evidence recorded in another case cannot be taken into account in arriving at the decision. Even in Civil cases this cannot be done unless the parties are agreed that the evidence in one case may be treated as evidence in the other. Much more so in criminal cases would this be impermissible. It is doubtful whether the evidence recorded in one Criminal Case can be treated as evidence in the other, even with the consent of the accused. But here there was clearly no consent of the appellants to treat the evidence recorded in the cross-case against Ganpat and Rajdhar as evidence in the case against them. The High Court was, therefore clearly in error in taking into consideration the evidence recorded in the cross case against Ganpat and Rajdhar. The High Court ought to have decided the appeal before it only on the basis of the evidence recorded in the present case and ought not to have allowed itself to be influenced by the evidence recorded in the cross case against Ganpat and Rajdhar. It is regrettable that the High Court should have fallen into such an obvious error. The judgment of the High Court, must, therefore, be set aside and we must proceed to consider whether, on the evidence recorded in the present case-without looking into the evidence recorded in the other cross case-+the conviction and sentence recorded against the appellants can be sustained.
In the case of Girjananda Bhattacharyya and Anr. v. The State of Assam and Ors. 1978 Cr. LJ 259 for the trial of the case and counter case, a learned single judge has said:
Prime reasons for trial of cases and counter cases arising out of the same incident by a presiding officer therefore, may be summed up as under:
(1) it staves off the danger of an accued being convicted before his whole case is before the court.
(2) it deters conflicting judgments being delivered upon similar fact; and
(3) in reality the case and the counter case are to all intents and purposes different or conflicting version of one incident.
In the case of Dev Narain Rai and Ors. v. State of Bihar reported in 1988 BBCJ 86 at page 90 it has been observed:
Section 43 of the Evidence Act says that all judgment orders or decrees, other than those mentioned in Sections 40, 42 and 43 are irrelevant unless the existence of such judgment, order or decree, is a fact in issue, or in relevant under some other provision of the Act. Appellants who were neither the prosecutor nor the accused in the counter case cannot be described a party to the said case. None of the provisions contained in Sections 40 to 43 of the Evidence Act can be applied to a counter case about the occurrence and a judgment in the counter case cannot be allowed to be used for the purposes envisaged therein. The judgment in the counter case in which the appellants were not on trial cannot prevent the court from taking cognizance’s of the offence alleged against them. It cannot also be used to effect the legal character or the rights of the State to prosecute and the accused to defend. Such a judgment cannot also be described as one relating the matters of a public nature relevant to the enquiry. In terms of Section 43 of the Evidence Act the only use to which the judgment in the counter case can be put is that the informant and others have been acquitted of the charges levelled against them. In absence of any fact suggesting relevancy of anything contained therein under any other provision of the Evidence Act no further use of the judgment is possible Courts have taken notice of the admissions evidence of conduct or evidence as to right or custom recognized in a previous judgment as a relevant fact in the subsequent proceeding or trial because under one or the other provision of the Evidence Act they are made admissible.
The law, stated in no ambiguous words, makes the use of evidence in the counter case impermissible. The evidence as understood in terms of the provision of the Evidence Act is always statements of a fact in relation to the fact under enquiry. Inferences from proved facts are also facts, which will require only a logical extension. Therefore, of the law stated by the Supreme Court in Mithulal (supra) to include the fact recorded by way of inferences from the facts proved in the case to be termed as evidence and thus evidence in the counter case. Although no case distinctly laying down the principle have been brought to our notice, I am of a respectful agreement with the views by P.K. Mohanti, J. in the case of Ram Chandra v. Gajadhar Maopatra who has considered the question of admissibility of a previous judgment in a case not interparty with reference to Section 13 of the Evidence Act has said:
A judgment in the previous suit though not conclusive is admissible in evidence like any other fact to be weighed in the balance. It is not the correctness of the previous decision but the fact that there has been a previous decision that is established by the judgment. The finding of the fact arrived at on the evidence in one case cannot be evidence of that fact in another case.
20. Thus, when a first information is lodged about an occurrence and the there is a counter first information report by the accused in respect of the same matter and both gives out their own version and different from each other, then both the cases be tried together as far as possible and so far as permissible under law by the same presiding officer so as to avoid any conflicting judicial pronouncement. But when this is not done or is not possible, then each case should be tried separately on the basis of evidence recorded in each case. Evidence of one case cannot be treated as evidence in the other case. Even by consent, such a thing is not allowed in a criminal case. Similarly, judgment in the counter case cannot be used to effect the right of the prosecutor to prosecution or the accused to defend himself. The only relevancy of such judgment will be to show as to whether there was conviction or acquittal of the case in that case, but the finding arrived at in the counter case will not have any for or against effect on prosecution or defence. The court while considering the case will have to base his judgment solely on the basis of the evidence of that case and not on the evidence or judgment of the counter case.
21. In the instant case from the evidence Jed by the prosecution, it appears that the occurrence had taken place in which a mob of 70-80 persons lead by Habibullah had assaulted the people from the side of the informant of this case. The details of the assault had been given out by the witnesses out of whom six are injured ones including the informant. From the scrutiny of their evidence it appears that there is no material to reject the same, though they are interested and inimical. On account of their injuries, simply because some of the persons are accused in the cross-case, their statement cannot be discarded. Their evidence has been scrutinized and has been found to be reliable and trustworthy. So, the prosecution has been able to establish its case. But still the question remains whether any question of self-defence is made out, from this evidence, even though no such specific plea has been taken by the appellant. There is nothing to show that these witnesses and the injured persons had used weapons in their defence. No question had been put nor any suggestion had been made that the appellants had used any weapon. It appears from the statement of one of the witnesses i.e. P.W. 7 that a mob had come. What happened between the villagers and the accused has not come in evidence. But nothing has been done by the prosecution party. Yet it can be said that there was something between the villagers and the accused party including the appellants, for which the prosecution party was not responsible.
22. In the case of Vijayee Singh v. State of U.P. (supra), their Lordships have observed regarding self defence as follows:
The general burden of establishing the guilt of accused is always on the prosecution and it never shifts. Even in respect of the cases covered by Section 105 the prosecution is not absolved of its duty of discharging the burden. The accused may raise a plea of exception either by pleasing the same specifically or by relying on the probabilities and circumstances obtaining in the case. He may adduce the evidence in support of his plea directly or rely on the prosecution case itself or, as stated above, he can indirectly introduce such circumstances by way of cross-examination and also rely on the probabilities and the other circumstances. Then the initial presumption against the accused regarding the non-existence of the circumstances in favour of his plea gets displaced and on an examination of the material if a reasonable doubt arises the benefit of it should go to the accused. The accused can also discharge the burden under Section 105 by preponderance of probabilities in favour of his plea. In case of general exceptions, special exceptions, provision contained in the Penal Code or in any law defining the offence, the court, after due consideration of the evidence in the light of the above principles if satisfied, would state, in the first instance, as to which exception the accused is entitled to, then see whether he would be entitled for a complete acquittal of the offence charged or would be liable for a lesser offence and convict him accordingly.
In the cross-examination, no suggestion have been put nor any evidence has been led in support of any right of self-defence. Killing of two persons from the side of the appellants is a probability and circumstances arising in this case which cannot be ignored and so, it may appear probable that in the same occurrence, the accused had also been assaulted by some one though not by the injured witnesses. This is a still mystery as to how two persons from the side of the accused of that case, were killed.
23. It appears seen earlier, from paragraph 6 of the memo of appeal that the persons from the side of the prosecution in this case have been convicted on the basis of some evidence. The accused in this case could have also made in suggestions to these injured witnesses in cross-examination in the trial which was done by the same judge. But the same has not been done, rather the appellants have not put any suggestions about self-defence. The courts is to do justice if any probability in that circumstances of the case is made out something for the accused. This much is brought out from the evidence on the learn of the case that something has been done in the same transaction on account of which the appellant side have received such injuries to the extent of two people being killed on the accused side and a plausible explanation has been given that the outsiders had intervened, beyond the control of the prosecution party. As such the prosecution cannot be held guilty of non-explanation of injuries and killings. There appears to be no right of self-defence to the appellants in the circumstances of the case. The prosecution case therefore, does not suffer from any infirmity or defect so as to be disbelieved.
24. Therefore, considering the entire material and evidence on the record it is held that the prosecution has been able to establish and prove its case against these appellants beyond any reasonable doubt. As such, the conviction of the appellants recorded by the trial court is upheld. As regards sentence, Lenient view about sentence can be taken because two persons from the side of the appellant have died and the appellants are suffering the ordeal of criminal prosecution since the year 1975 for about 15 years and it has also been submitted on their behalf that they were in jail custody for a period of about three months. So, maintaining their conviction for the offences as said above, their sentences are reduced to the period already undergone by them. They are on bail so, they are discharged from the liabilities of their bail bonds.
25. In the result, with the above modification in the sentences of the appellants, this appeal is dismissed.