JUDGMENT
A.B. Chaudhari, J.
1. By this appeal, the appellants have put to challenge the judgment and order of conviction dated 24.4.1995 passed by 3rd Additional Sessions Judge, Nagpur, convicting the appellants/accused for the offences punishable under Sections 302 and 324 read with Section 34 of Indian Penal Code and sentencing them to suffer rigorous imprisonment for life and two years respectively. The sentences were ordered to run concurrently.
2. Prosecution case, in brief, is that accused No. 2 to 4 are the sons of accused No. 1 Namdeo Bhalavi and they are cousins of complainant Shankar Bhalavi (P.W. 1). On 17.2.1992 complainant Shankar lodged report (Ex.78) at police station Hingna alleging therein that on 16.2.1992, at about 8-00 p.m. on the road at village Salaidhaba, a quarrel took place between accused Namdeo Bhalavi, Ashok Bhalavi and Anjanabai-wife of accused Ashok Bhalavi with his cousins Baban, Sudhakar and deceased Madhukar in respect of dispute over the field. When complainant Shankar tried to intervene, accused Namdeo asked others to catch hold of the victims and all the accused started assaulting him and his three brothers with sticks. They also went to the house of complainant Shankar and pelted stones, as a result of which he sustained injuries on his head, chest and hands and all his three brothers also had sustained injuries. P.S.O. Hingna registered offence vide Crime No. 55 of 1992 on the basis of the said report under Sections 324 and 326 read with Section 34 of Indian Penal Code and commenced investigation. He went to the spot of incident at village Salaidhaba and found that Baban and Sudhakar had died and their bodies were lying on the ground. He also found complainant and his brother Madhukar had sustained injuries on vital parts of the body. He then registered the offences under Sections 302, 307, 326, 324, 452 and 447 read with Section 34 of Indian Penal Code. On the next day, i.e. on 17.2.1992 all the accused were arrested. The dead bodies were sent for post mortem and the injured were sent for medical examination. Necessary investigation was carried out and ultimately charge-sheet came to be filed against all the accused in the Court of J.M.F.C., Nagpur, who then committed the case to the Court of Sessions at Nagpur for trial.
3. All the accused persons pleaded not guilty to the charge framed against them. The defence suggested to the complainant Shankar (P.W. 1), other injured persons and members of the family of complainant, who were examined as eye witnesses, was that in fact the complainant, deceased Baban and Sudhakar were the aggressors and they attacked the accused persons with sticks and stumps and the accused persons acted in exercise of their right of private defence.
4. The learned Counsel for appellants, Mr. Daga, inviting our attention to the arrest panchanama (Exs. 96 & 98) in respect of accused Ashok and Krushna, argued that both of them had severe bleeding injuries on their heads and the prosecution witnesses, though having been given opportunity to explain in cross-examination, deliberately suppressed the genesis of the real incident. Relying on the decision of this Court in Sarjerao Sahadeo Gaikward v. State of Maharashtra reported in 1997 Cri.L.J. 3839 Mr. Daga argued that failure on the part of prosecution to explain the injuries on the person of the accused must result into prosecution story viewed with suspicion and benefit of doubt ought to go to the accused persons. He, therefore, prayed for acquittal of the accused persons.
5. Per contra, Mrs. Joshi, learned A.P.P., argued that there is no material on record to indicate that the deceased or the injured witnesses were having any weapon in their hands at the time of occurrence and in absence thereof no adverse inference can be drawn, particularly when the said stand was not taken in the statement under Section 313 of the Criminal Procedure Code. She supported the impugned judgment and order of conviction and prayed for dismissal of appeal.
6. The prosecution led oral as well as documentary evidence. It examined in all ten witnesses. Out of them, Shankar (P.W. 1), Baby (P.W. 2) who is wife of complainant Shankar Bhalavi, Madhukar Bhalavi (P.W. 4), Sitabai Bhalavi (P.W. 5) and Manohar Kawale (P.W. 6) claim to be eye witnesses to the incident. Eknath Khadse (P.W. 10) is the investigating officer. Vatsalabai Mule (P.W. 3) turned hostile. Shravan Muley (P.W. 7)-the panch witness of spot and seizure was also declared hostile. Dr.Dayaram Nagdevate (P.W. 8) examined Shankar Bhalavi and issued certificate (Ex.115). Head constable Istari (P.W. 9) recorded the report lodged by Shankar. Ex.40 is the post mortem report pertaining to deceased Sudhakar. Ex.41 is the post mortem report pertaining to deceased Baban. Both the post mortem reports were issued by Dr.M.T.Katade. The trial Court upon appreciation of evidence on record convicted the accused persons for the offence punishable under Section 302 of Indian Penal Code for causing death of Baban and Sudhakar and for the offence punishable under Section 324 read with Section 34 of Indian Penal Code for causing hurt to complainant Shankar and Madhukar, and sentenced them as stated above.
7. There is no dispute about the fact that Baban and Sudhakar met with homicidal death. The eye witnesses account, post mortem reports and the opinion of the doctor clearly indicate that the death of Baban and Sudhakar was homicidal. Shankar (P.W. 1) in his deposition stated that he came from pat (a race of bullocks with bullock-carts) and saw that the scuffle was going on between Baban and the accused persons and the accused were assaulting Baban with sticks and stones. When he went there, the accused assaulted him with sticks. The incident took place near the compound of Ramaji. He deposed that he then went home and wrapped a piece of cloth around his head and thereafter went to lodge the report (Ex.78). He did not have any idea why the accused were assaulting Baban. In his report (Ex.78) he has stated that all the accused persons had assaulted him and all his three brothers, i.e. Baban, Sudhakar and Madhukar with sticks. He contradicted his statement in the report (Ex.78) that all his brothers were present on the spot before he was assaulted. He further contradicted his statement in the report by saying that there was no dispute over the field and, on the contrary, stated that he did not know why the accused assaulted his brother Baban. He also contradicted that none of the accused abused her mother. According to him, the report was lodged when he visited the police station in the night immediately after the incident. Ex.78 is of the date 17.2.1992, i.e. after midnight hours of 16.2.1992. To a specific question about the injuries on the person of Ashok and Krushna, he answered that he did not see whether they sustained injuries or not.
8. Babybai (P.W. 2) is the wife of complainant Shankar. In her deposition she stated that on the fateful day, at about 8-00 p.m., while she was at her home, she heard noise. She therefore went outside and saw that the accused were assaulting Baban and Sudhakar with sticks and stones. Her husband Shankar came on the spot. When the accused assaulted her husband-Shankar, she intervened. Shankar went home and she followed him. Shankar had sustained injury on head which was wrapped by her by a piece of cloth. Madhukar came to her house at that time and told her that he was assaulted by the accused. The accused came to her house with sticks and stones and were saying that they killed two and why the other two entered the house. Thereafter the accused left. After sometime she went to the spot to find that Baban and Sudhakar were dead. Baban was lying near the house of Gajanan while Sudhakar was lying near the house of Pandurang and both of them were having head injuries.
9. In her cross-examination Babybai (P.W. 2) deposed that a scuffle was going on between Prabhakar and Baban. Shankar came there when accused assaulted Baban and the incident went on for half an hour. She deposed that Sudhakar had told her that there was exchange of words between accused Prabhakar and deceased Shudhakar. She went to the house of Namdeo and questioned Prabhakar about the quarrel. Accused Prabhakar was in angry mood. When Baban came there and asked Prabhakar as to why he was looking angrily, a scuffle went on between accused Prabhakar and Baban. Shankar also came there. It appears from the evidence that Babybai thus went to the house of accused Namdeo for questioning Prabhakar about the quarrel with deceased Sudhakar and then she was followed by Baban who also questioned Prabhakar. Thereafter Shankar also came to the house of Namdeo and then the incident of scuffle started which went on for half an hour. She denied the suggestion that deceased Sudhakar and Baban along with Shankar and Madhukar had gone to the accused with sticks and assaulted accused Ashok with sticks. The above testimony of Babybai which depicts major change in her version about the manner in which the incident took place, to our mind, makes her version a doubtful one about the assault on Baban and Sudhakar with sticks and stones. On the contrary, it appears that Babybai and all other male members of her family one by one proceeded towards the house of Namdeo to question them. The house of Namdeo is situated just one house from the house of Gajanan Muley, as deposed by Vatsalabai Mulye (P.W. 3). The incident appears to have taken place near the house of Gajanan and adjacent to the house of Pandurang since the dead body of Baban was found in the court-yard of Gajanan and that of Sudhakar on the road in front of the house of Pandurang Muley and the distance from the dead bodies to the house of deceased Baban and Sudhakar and complainant Shankar, as per map, appears to be 152 ft. She failed to explain as to how accused Ashok and Krushna were injured.
10. Madhukar Bhalavi (P.W. 4) deposed that he saw a scuffle on the road near the house of Gajanan Muley and saw that the accused were assaulting his brothers Baban and Sudhakar. They were having bat, sticks and stumps and he was assaulted on his head by stumps and sticks, so also on foot. He ran away. He stated that the accused were pelting stones towards his house. He sustained bleeding injury which was tied with cloth by his wife. In cross-examination he admitted that when he went to the spot he saw Baban lying on the spot and that he had no knowledge whether Shankar sustained injuries. A material omission that the accused assaulted him and his brothers Baban and Sudhakar with stump and bat has been brought on record and duly proved. His statement appears to have been recorded on the third day of the incident, though he says that on the next day of incident he remained in the police station for about 4-5 hours. We have a serious doubt about this witness Madhukar as to whether he really witnessed the actual incident of assault on his brothers Baban and Sudhakar. He denied the suggestion that he and all his brothers had gone to the house of the accused persons and assaulted them with sticks. He also failed to explain the injuries on the person of accused Ashok and Krushna.
11. Sitabai (P.W. 5) is the wife of Madhukar. She deposed that she was at her house. When she heard noise she went to the spot and saw that all the accused were assaulting Baban and Madhukar. Accused Prabhakar and Namdeo were assaulting Baban while accused Ashok and Krushna were assaulting Madhukar by bat and sticks. Accused Namdeo assaulted her on her back with stick. Baban and Sudhakar were lying on the ground and had sustained bleeding injuries. There is a material omission duly brought on record about Prabhakar and Namdeo assaulting Baban and accused Ashok and Krushna assaulting Sudhakar. This omission will have to be read in the light of the fact that she states that she was on the spot of incident for half an hour and the incident went on for half an hour. She denied the suggestion that Baban and his three brothers were aggressors and had gone to the house of the accused and had assaulted the accused persons with sticks, which she identified in the Court. She also failed to explain as to how accused Ashok and Krushna were injured.
12. Manohar (P.W. 6) is the neighbour. He deposed that on hearing the noise he went to the spot and saw accused assaulting Sudhakar. He also saw Madhukar coming home with injuries, so also Shankar. A contradiction has been brought on record in relation to his say before police that when he was sitting in the house of Madhukar, two ladies came there and told him that the accused were assaulting Sudhakar, Baban and Shankar with sticks and stumps and when he went there he found Sudhakar dead. The tenor of contradiction brought on record shows that he reached after the incident was over. There is an omission about the particulars of bat and stumps in the hands of particular accused.
13. A bare look at the arrest panchanama (Ex.96) in respect of accused Ashok shows that it was recorded at 2-45 a.m. on 17.2.1992, i.e. after about five hours after the incident. The panchanama shows that even after lapse of five hours, blood was coming out through head injury of accused Ashok and his clothes were smeared with blood. There was an internal injury on his right knee. Similar is the case with accused Krushna whose arrest panchanama is at Ex.98 wherein it is stated that at about 2-45 a.m., i.e. after about five hours of the incident, blood was oozing from his head injury. There is no dispute about these two arrest panchanamas. In our opinion, these injuries on the person of accused Ashok and Krushna are serious injuries, being on head, and are not superficial injuries which could be ignored. At this juncture, it is interesting to refer to the evidence of Investigating Officer, particularly paragraph 4 thereof.
14. Eknath Khadse (P.W. 10)-Investigating Officer in cross-examination stated that he had referred both the accused . Ashok and Krushna for medical examination and the medical officer had given the report of their examination. But these certificates of injuries are not filed on record. When he was asked as to why he did not file those certificates, his answer was that he did not find it necessary to place them on record of the Court. It would be appropriate to reproduce his evidence from paragraph 4.I recorded arrest panchanama of accused. I sent them for medical examination. Medical Officer gave the report. But it is not on record. Again I say that I sent the accused for collecting blood sample to the hospital. (Ex.96 to 98). I prepared said documents. It has mentioned in Ex.96 that a piece of clothes was rounded on the head of accused Ashok and there is injury on his head. It has also mentioned in the said panchanama that blood was oozing from it. Now I say that I sent accused Krishna and Ashok to medical officer. But certificates of their injuries are not on record. I did not find it necessary to keep it on record. It is not true that I deliberately avoided to keep the certificate on record to prove the case. To say the least, the attitude of investigating officer and that of prosecution not to produce the medical certificates of examination of both Ashok and Krushna on the ground that the investigating officer or the prosecution did not find it necessary to place on record, is highly condemnable. It is not for the investigating officer or the prosecution to decide and adjudicate itself about the necessity of filing such an important evidence.
15. Ex.29 is the seizure-memo in respect of stones weighing one kg. each which were seized from the court yard of residential house of complainant Shankar. Ex.30 is the seizure-memo in respect of a wooden stick measuring 2 feet 8 inches in length and 4 inches in width having nodes bearing blood stains at various places. This was seized from the open space in front of the house of complainant Shankar Bhalavi. There is no explanation as to how these articles were seized from the house of complainant Shankar when the incident is said to have taken place near the house of the accused persons.
16. The recitals in the F.I.R. tend to show that the accused persons went to the house of complainant Shankar and pelted stones. The F.I.R. is silent about the incident having taken place near the house of accused persons. The evidence of Babybai (P.W. 2) tends to show that she went to the house of accused Namdeo to question Prabhakar about the quarrel between Prabhakar and Sudhakar. Thereafter Baban came there and questioned Prabhakar. Thereafter a scuffle ensued between Prabhakar and Baban. Shankar also came there and the whole incident took place for half an hour. There is a reason to believe that Babybai followed by Baban followed by Shankar had in fact gone to the house of Namdeo and the incident took place near the house of Namdeo in which the accused Ashok and Krushna sustained serious head injuries. There is a clear cut design on the part of prosecution to withhold the medical evidence in respect of serious head injuries sustained by Ashok and Krushna. Shankar (P.W. 1), Babybai (P.W. 2), Madhukar (P.W. 4), Sitabai (P.W. 5) and Manohar (P.W. 6) have refused to divulge any information about the injuries caused to them despite opportunity being given to the witnesses in the cross-examination. The investigating officer did not carry out any investigation about the injuries sustained by the said accused persons. The prosecution is thus not ready to bring out the truth before the Court.
17. In the case of Mohar Rai v. The State of Bihar the apex court in para 6 of the said judgment made following observations:
The evidence of Dr. Bishun Prasad Sinha (P.W. 18) clearly shows that those injuries could not have been self-inflicted and further, according to him, it was most unlikely that they would have been caused at the instance of the appellants themselves. Under these circumstances, we are unable to agree with the High Court that the prosecution had no duty to offer any explanation as regards those injuries. In our judgment, the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants.
18. In Lakshmi Singh and Ors. v. State of Bihar , the apex court in para 11 has observed as under:
It seems to us 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 course of altercation is a very important circumstance from which the Court can draw the following inferences:
(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version.
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the Court to rely on the evidence of P.Ws. 1 to 4 and 6, more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case.
19. In Chanan Singh v. State of Punjab , in para 3 the apex court made the following observations:
It is true that the defence case also has not been accepted by the High Court but once there is a probability of the accused having acted in self-defence, that is sufficient to entitle him to an acquittal.
20. In State of Rajasthan v. Rajendra Singh reported in 1998 Cri.L.J. 3628, in para 8 the apex court made the following observations:
All the witnesses had categorically stated that they had not beaten the respondent and seen any injury on the accused. But the evidence establishes that the respondent had two contused lacerated wounds : one on his face and one on his head. The injuries were bleeding injuries and visible and yet the witnesses stated that they had not seen any injury on the person of the respondent. That would mean that neither the family members of Harveer nor the two independent witnesses were willing to give a true version and had tried to suppress the part played by some of them which had resulted in causing injuries to the respondent. The High Court was, therefore, justified in not placing reliance on their evidence.
21. In Balwant Singh v. State of Haryana , in para 12, the apex court made the following observations:
The question then arises whether the failure of the prosecution to explain the injuries suffered by the accused is not fatal to the case of the prosecution. It is true that in all cases failure of the prosecution to explain injuries to the accused may not be fatal, and that the consequence of failure to explain such injuries depends upon the facts and circumstances of the case, the nature of the occurrence and the nature of the injuries suffered by the accused. In this case we find that the injuries suffered by A-1 to A-3 are numerous. We can say that the injuries were serious because any of the injuries on the skull could have proved fatal…. It is well settled that while the prosecution has to prove its case beyond reasonable doubt, the defence has only to produce evidence or show material on record which probabilises its defence.
22. Upon conspectus of pronouncement of law made by Supreme Court in the above decisions, it is clear from the presence of injuries on the person of Ashok and Krishna that there was a clash between them on one side with the complainant party on the other side and, as such, the prosecution has not put forth the genesis and the manner of occurrence correctly and the origin of the quarrel and as such the version given by prosecution cannot be held to be correct.
23. The learned A.P.P. argued that there is no material or evidence on record to show that the complainant party was having weapons in their hands and the suggestion to that effect given to the witnesses have been promptly denied. In our opinion, if the prosecution has not placed the matter objectively and fairly but has chosen to suppress the medical evidence in respect of the injuries suffered by the accused persons, it would make no difference whether such material is available or not because the burden of establishing the defence is not that rigorous on the part of defence, as on the part of prosecution. The following observations made by Supreme Court in para 4 (at page 845) in the case of Ranbaj Singh v. State of Punjab reported in 2007 All MR (Cri) 842 (S.C.) would answer the said submission.
The prosecution has not placed the matter objectively and fairly before the Court and did not produce necessary medical evidence to the effect that Ranbaj Singh was also similarly admitted in the Hospital and he was also medically examined by the doctor an the statements of Ranbaj Singh and Mohan Singh were recorded by the Police but on the contrary an attempt was made to hide this aspect of the matter. Whenever the plea of right of private defence is taken it is not necessary for the defence to lead specific evidence. The defence is entitled to substantiate their case from the evidence of the prosecution. It is not incumbent upon the defence to substantiate right to private defence if it can be substantiated from the prosecution evidence. Therefore, the burden of establishing the defence is not that rigorous on the part of the defence as that of the prosecution.
24. Thus, taking over all view of the matter, we are of the view that benefit of doubt must go to the accused. In the result, appeal is allowed. Impugned judgment and order convicting and sentencing the appellants for the offences punishable under Sections 302 and 324 read with Section 34 of Indian Penal Code, is set aside. The appellants are acquitted of the offences with which they were charged. Appellants No. 1 and 2 who are in jail be released forthwith, if not required in any other crime. Bail bonds of appellants/accused No. 3 & 4 are discharged.