JUDGMENT
N.L. Tibrewal, J.
1. This appeal is directed against the judgment dated 21st September 1989 passed by learned Additional Sessions Judge, Bharatpur in Sessions case No. 18/86.
2. Broadly speaking, the facts of the case are that Karan Singh (PW 2) lodged a report at Police Station Sewar at 9.15 a.m, on 17th March, 1988 about an incident allowed to have taken place on the same day at 8.00 a.m. The prosecution case, as given out in the said report, is that the informant’s son Tulsi had gone in Jangle to meet the call of nature and while he was returning, he was surrounded by the appellants and one Bhopal. Against the appellants a further accusation was also made that they caused injuries to Tulsi with spears on his chest, neck and lumber region. On account of the injuries sustained by him, Tulsi died. In the report it was also given put that on a noise, Amar Singh and Man Singh report witnesses came on the spot to rescue Tulsi but in the meantime other accused persons viz., Bhopal Singh, Bal Mukund, Chandan Singh, Panna and Dhulera arrived on the spot & they assaulted Amar Singh and Man Singh with lathis. As per the said report, Dharma Singh, Madan and other person came on the spot subsequently. It was alos mentioned in the said report that the dead body of Tulsi was placed on the road lifting it from the place of incident.
3. On the aforesaid report, police registered a case under various offences including Under Section 302 and after investigation, submitted a char sheet against eight accused-persons including the two appellants viz., Ram Khiladi and Shanker.
4. All the accused-persons were charged Under Sections 148, 302/149 and 323 IPC by the learned Addl. Sessions Judge No. 1, Bharatpur were the accused persons were tried in the above-mentioned Sessions case.
5. During the trial, prosecution examined as many as 17 witnesses. Out of them, Karan Singh (PW 2), Ram Swaroop (PW 3), Amar Singh (PW 4), Man Singh (PW 6), Dharam Singh (PW 7), Smt. Kasturi (PW 8), Smt. Ramdevi (PW 10) and Ram Lal (PW 14) were examined as eyewitnesses of the incident. Dr. Gopalram Singhal (DW 3), who conducted the postmortem of the dead-body was examined to prove the injuries on the person of the deceased Tulsi, Ram Swaroop (PW 16) and Bhupender Singh (PW 17) were examined as Investigating Officers while the remaining witnesses are of formal character.
6. Accused-appellant Ram Khiladi, while denying the incident having taken place in-the manner as stated by the prosecution came out with an alternative version about the incident. According to him, at 8.00 a.m. on 17th March 1988 the cows of the informant-complainant. Karan Singh, were grazing in the field of his aunt Smt. Mukhi. When she prevented, then Karan Singh and others began to quarrel with her. He further stated that if they allow cows to graze in the field then he will get them seized in the cattle house. In the mean time. Tulsi and others came there with lathis and rods at the house of the accused and began to assault him. He further stated that Tulsi caused him injuries on the various parts of his body, which were detailed out in his statement Under Section 313 Cr. PC. He further stated that on account of injuries, he became unconscious and, thereafter, remained admitted in the hospital up to 23rd March 1988.
7. Shanker appellant denied his participation in the incident.
8. In defence, four witnesses viz., Gopal Ram (DW 1), Dr. P.P. Singhal (DW 2), Dr. Gopal Ram Singhal (DW 3) and Sita Ram Gupta (DW 4) were examined, Dr. Gopal Ram Singhal (DW 3) proved the injuries of Ram Khiladi, appellant, which were examined by him on 17th March, 1988 itself while he was posted as Medical Jurist at General Hospital, Bharatpur. According to Doctor, Ram Khiladi has sustained four injuries, which included three lacerated wounds. The Doctor also proved the injuries report Ex. D-16 and further stated that injured Ram Khiladi was admitted in the hospital and for injury No. 2 X-ray was advised; According to this witness on X ray examination, injury No. 2 was found to be grievous for which he made a report Ex. D.
9. This witness also examined the injuries of Smt. Mukti (who has been narrated as Mukhi) and she was having one injury on her person. The injury report of Smt. Mukti Ex. D-17 was also proved by this Doctor.
10. In the cross-examination of this Doctor nothing has come out to suggest that Ram Khiladi had not sustained the injuries as narrated by this witness Dr. P.P. Singhal (D W 2) was the Radiologist and he has taken the X-ray of the chest of the appellant Ram Khiladi. The X-ray plate Ex. D-14 and the X-ray report Ex. D-15 have been proved by this witness. No cross-examination has been made to this witness.
11. It is alos noteworthy that in defence as many as 18 documents have been got exhibited, out of which Ex.D-1 to Ex.D-10 are the previous statements of the witnesses recorded Under Section 161 Cr. PC Ex. D-11 is a certified by the Managing Partner of M/s Perfect Engineering Company about the fact that the co-accused Dhula Ram was working in his factory from 6.30 a.m. to 12.30 p.m. Ex. D-12 and D-13 are, the abstracts from the attendance register of the aforesaid factory to prove the aforesaid fact. Ex. D-14 is the X-ray place, Ex.D-15 is the X-ray report, Ex. D-16 is injury report of Ram Khiladi, Ex. D-17 is the injury report of Smt. Mukhi.
12. After completion of the trial, the learned trial Court did not place any reliance on the testimony of Karan Singh (PW 2), Ram Swaroop (PW 3), Mst. Kasturi (PW 8), Smt. Ram devi (PW 10) and Ram Lal (PW 14) that they had seen the incident about the assault to deceased Tulsi.
13. The learned trial Court also did not believe the statements of Man Singh and Amar Singh qua the co-accused Bhupal against whom also they had deposed that he inflicted a farsa blow from the reverse side on the head of Tulsi deceased. Similarly, Dharam Singh (PW 7) was also not relied upon qua the co-accused Bhupal.
14. Eventually, the learned trial Court acquitted all the accused from the charge Under Section 148 IPC. All other accused-persons were acquitted from all other charges including Section 302 IPC. The learned trial Court, thereafter, convicted both the appellants Under Section 302 IPC only and sentenced each one of them to under go imprisonment for life and to pay fine of Rs. 500/-.
15. The main contention of the learned Counsel for the appellants is that the prosecution has suppressed the genesis and the origin of the offence and has thus not presented the true facts. According to him, if the incident had taken place the the manner as stated by the prosecution witness, there was hardly any occasion for the appellant Ram Khiladi and Mst. Mukhi to have sustained injuries in as much as the deceased Tulsi is said to have gone to meet the call of nature and was empty handed when he was returning. It was further pointed out that the I.O. has admitted that at the time of arrest of the appellant Ram Khiladi, he found injuries on his person and he also admitted that Ram Khiladi was admitted in the hospital as an indoor patient, The I.O. has also admitted in his statement that from his investigation, he apprehended the accused-persons. According to the learned Counsel for the ‘appellants’; the non-plantation of injuries on the person of the accused is a vital infirmity looking to the facts and circumstances of the case. He also pointed out that the aceusedhas also proved the existence of. Injuries on the person of Ram Khiladi an done of the injuries has been found to be grievous and these injuries have been sustained in the same incident as it is clear from the statement of the Doctor as well as the Investigating Officer: According to the learned Counsel, the accused Ram Khiladi had acted in the exercise of right of private defence also. In any case, according to the learned Counsel for the appellants, the statements of Amar Singh (PW 4) and Man Singh (PW 6) cannot be relied upon for recording the conviction of the appellants.
16. Contrary to this, the learned Public Prosecutor supported the judgment of the learned trial Court.
17. We have given our thoughtful consideration to the aforesaid contentions made by the learned Counsel for the appellants and we have also read the statements of all the witnesses with the help of the learned Counsel for the appellants;
18. Some salient facts are clearly borne out from the material on record and they have not been disputed even by the learned Public Prosecutor viz.
(i) That on 17-3 88 an incident of Marpeet took place at 8.00 a.m.;
(ii) That members of both the parties including the appellant Ram Khiladi had sustained injuries in the said incident;
(iii) Accused Ram Khiladi had sustained four injuries including one grievous injury on his chest;
(iv) That the injuries of the accused have not been explained by the prosecution though the Investigating Officer, Bhupendra Singh (PW 17) has admitted that at the time of arrest of Ram Khiladi, he had injuries on his person. He also admitted that a criminal case was also registered on the report of the accused persons and that Ram Khiladi remained admitted in the hospital from 17th March. 1988 to 23rd March. 1988 and on account of his admission in the hospital, he could not be arrested.
In the background of the aforesaid facts, we have to examine the prosecution case.
19. As already stated above, the learned trial Court has recorded the conviction of the appellants on the basis of the statements of three witnesses only viz, Amar Singh (PW 4), Man Singh (PW 6) and Dharm Singh (PW 7). All other witnesses including the informant Karan Singh, have not been believed that they had seen the appellants assaulting the deceased Tulsi.
20 Amar Singh (PW 4) has stated in the examination in chief that he was making plantation in his field on 17-3-88 then he heard the voice of Dharm Singh Gujar then he got up and saw towards the field of Khera. He further stated that Ram Khiladi, Bhajan Lal, Shanker Lal, Mukand, Panna, phuleram, Bhupal accused persons were chasing Tulsi and they surrounded him. According to this witness, Ram Khiladi appellant and Shanker, appellant, were having spears while Bupal Co-accused was haying a Tachia and remaining persons were having a lathis. He further stated that when they were chasing Tulsi. Ram Khiladi gave the first spear Blow on the lumber region of Tulsi’ then a second blow was given by Shanker with a spear. Then Tulsi went behind and he was again assaulted with the spear by Shrnner and Ram Khiladi. He also stated that Bhupal Co-accused gave one Tachia blow on the head of Tulsi. He has also given out that Man Singh, Karan Singh, Ram Lal, Ram Swaroop, Dharm Singh Gurjar. Smt, Ramdevi and Smt. Santara had also come there. Tulsi died there and the accused persons ran away. He further stated that other persons of the complainant party were also assaulted by other co-accused persons.
21. In cross-examination he admitted that he did not know the Khasra number of the field where the incident took place. He also stated that he was not aware of the Khasra number of his own field. He. further stated that on the day of incident the police had come on the spot and for two-three days the police continued to come in the village and he was present in the village throughout but during these two-three days, police did not make any inquiry from him. It noteworthy that the incident had taken place on 17th March 1988 while the statement of this witness was recorded on 21st March 1988 even though he was a witness of the inquest report and was throughout present in the village. No explanation has been given by the prosecution for this late examination of this important witness specially when he was a witness of inquest report. It is also note worthy that his testimony has not been relied upon que other accused-persons who have been acquitted from all the charges. It is also note worthy. that as per FIR this witness has come sub equent to the fall of Tulsi. This witness has also not explained the injuries sustained by the accused appellant Ram Khiladi. This witness has also been confronted from some, material portion of his previous statement Ex. B-5 recorded by the police. Under Section 161 Cr.PC.
22. Man Singh (PW 6) is the son of informant Karan Singh and the real brother of Tulsi. This witness as per the FIR. came subsequent to the fall of Tulsi and from the Statement of Dharam Singh (PW 7) it is further clear that he came subsequently and he could not have been eye witness of the incident, This witness has. also not explained the injuries sustained by the appellant Ram Khiladi.
23. As per FIR, Dharam Gopal had come in the last when the entire incident was over.
24. Thus, a critical analysis of the statements of the aforesaid witnesses goes to show that none of them has come out with the real story and has suppressed the genesis and the origin of the offence. In a given case like the present one, where the Investigating Officer himself found that the accused had sustained the injuries in the same incident and according to him it was a case. of free fight, it was incumbent on the prosecution to come out with true story about the origin of the fight and the planner in which the incident took place. The prosecution should have also explained the injuries sustained by the accused so that the court may examine as to whether it was a case. of free fight or the accused had acted in the exercise of right of private defence or not. The non-explanation of the injuries on the person of the accused, in a case like the present one is a serious infirmity and it is very important circumstance from which the Court can draw the following inferences as Laid down by the Hon’ble Supreme Court in Lakshmi Singh and Ors. etc. v. State of Bihar :
(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 the witnesses who have denied the presence of the injuries on the person of the accused, it is rendered probate so as to throw doubt on the prosecution case.
25. Reference can also be made to the judgment to the Hon’ble Supreme Court. In Yogondm Moravi v. The State Of Gujarat where the Court has considered the burden of proof on the accused on the question of plea of private defence. The Hon’ble Supreme Court held as under:
Notwithstanding the failure of the accused or establish positively the existence or circumstances which would being his Case within an exception, the circumstances proved by him may raise a reasonable doubt with regard to one or more of the necessary Ingredients of the offence itself with which the accused stands charged. Thus, there may cases where, despite the filure of the accused to discharge his burden Under Section 105 the material brought On the record may, in the totality of the fact and circumstances of the case, be enough to the mens rea requisite for an offence Under Section 299 of the Code.
The Court further observed that even Under Section 105 the standard of proof required to establish those circumstances is that of a prudent man as Laid down in Section 3, Evidence Act. The accused may discharge his burden by establishing a mere balance of probabilities in his favour with rigard to the said circumstances.
26. Taking the entire facts and circumstances, as pointed out above, we are of the thorough opinion that the prosecution has miserably failed to prove the guilt against the appellants beyond reasonable doubt The prosecution has suppressed the genesis of the offence and has not brought true version of the incident before the Court. The injuries of the accused have not been explained and if the incident has taken place in the manner as stated by the prosecution when there was no occasion for the appellant Ram Khiladi to have sustained injuries. Further, the statement of Amar Singh, which has been recorded after four days of the occurrence and for which there is no satisfactory explanation, hardly inspires any confidence specially when the said statement has bean rejected in part que the co-accused persons. We are also of the opinion that Man Singh (PW 6) and Dharam Singh (PW 7) were not the eyewitness of the incident and they have also not spoken the truth about the offence.
27. We are satisfied from the statements of Dr. P.P. Singhal (DW 2) and Dr. Gopal Ram Singhal (DW 3) that the accused appellant Ram Khiladi and Mst. Mukhi had sustained injuries and one of the injuries sustained by Ram Khiladi was grievous in nature. We are also satisfied that Ram Khiladi had sustained injuries in the same incident and the Investigating Officer is guilty of not making investigation about the injuries of the appellant Ram Khiladi and Smt. Mukhi.
28. Thus, taking into all the circumstances, we are not inclined to maintain the conviction of the appellants Under Section 302 IPC as recorded by the learned trial Court.
29. Accordingly, we allow this appeal, set aside the conviction and sentences of the appellants Under Section 302 IPC as recorded by the learned trial Court. Accused-appellants Shanker and Ram Khiladi are acquitted of the charge Under Section 302 IPC. They are in jail and as such they shall be set at liberty immediately, if not wanted in any other case.