{"id":129503,"date":"2010-01-18T00:00:00","date_gmt":"2010-01-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/indra-bahadur-singh-others-vs-state-of-u-p-on-18-january-2010"},"modified":"2016-02-02T04:07:50","modified_gmt":"2016-02-01T22:37:50","slug":"indra-bahadur-singh-others-vs-state-of-u-p-on-18-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/indra-bahadur-singh-others-vs-state-of-u-p-on-18-january-2010","title":{"rendered":"Indra Bahadur Singh & Others vs State Of U.P. on 18 January, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Indra Bahadur Singh & Others vs State Of U.P. on 18 January, 2010<\/div>\n
                                         1\n\n                                                                       Reserved\n                         Criminal Appeal No.72 of 1996\nIndra Bahadur Singh and another                                ... Appellants\n                                      Versus\nThe State of U.P.                                             ... Respondent\n                                   --------------\nHon'ble S.S. Chauhan, J.\n<\/pre>\n
      Through this appeal the appellants have challenged the judgment and
\nconviction dated 8.2.1996 passed by the IVth Additional Sessions Judge,
\nSultanpur, thereby convicting the appellants under Section 307 read with Section
\n34 I.P.C. to seven years rigorous imprisonment and further under Section 323
\nread with Section 34 I.P.C. for a fine of Rs.1,000\/- each of the accused and in
\ncase of default to undergo three months rigorous imprisonment.\n<\/p>\n
      Appellant No.3, Kare Deen Singh S\/o Chhotai had died during the
\npendency of the appeal and hence the appeal abates against him.\n<\/p>\n
      The prosecution case as unfolded in the F.I.R. is that the appellants Indra
\nBahadur Singh, Samar Bahadur Singh and Kare Deen Singh (since deceased) on
\n19.6.1986 at about 12 p.m. in the noon in Village Dhaurhar, Police Station Peepar
\nPur, District Sultanpur came behind and attacked on complainant, Tej Bahadur
\nSingh and his son Krishna Kumar Singh with an intention to kill them on account
\nof old enmity while they were sitting at tube-well on a cot. Upon alarm being
\nraised, the witnesses came to the spot and thereafter the appellants ran away from
\nthe spot. An F.I.R. was lodged by complainant, Tej Bahadur Singh at Crime
\nNo.91 of 1986 under Sections 307 and 323 I.P.C., Police Station Peepar Pur,
\nDistrict Sultanpur. A cross F.I.R. was also registered at Crime No.91A of 1986
\nunder Sections 147, 148, 149, 323, 307 I.P.C. Both the F.I.R.s were investigated
\nand final report was submitted in the F.I.R. lodged at Crime No.91A of 1986,
\nwhereas a charge sheet was submitted in the F.I.R. lodged at Crime No.91 of
\n1986. The accused persons were committed to the court of Sessions for being
\ntried. The accused persons pleaded not guilty and thereafter charges were framed
\nagainst them under Sections 307\/34 and 323\/34 I.P.C. Tej Bahadur Singh himself
\nwas examined as P.W.-1, Krishna Kumar Singh as P.W.-2, Subhash Singh as
\nP.W.-3, Satish Chandra Tripathi, Investigating Officer as P.W.4 and Dr. Ashok
\nMohan as P.W.5 to prove the prosecution case.\n<\/p>\n
      The defence adduced Smt. Sarla Mishra, A.N.M. as DW.-1, Mahendra
\nKumar Tripathi, Pharmacist as D.W.-2. The photostat copies of the injury reports
\n                                         2<\/span><\/p>\n
filed by the appellants were marked as Ex.Ka-1 and Ex.Ka-2 and the F.I.R. was
\nthe Ex.Ka-3.\n<\/p>\n
       The injuries reports (Ex.Ka-1 and Ex.Ka-2) go to show that Indra Bahadur
\nSingh received one lacerated wound, two contusions, one abrasion and a
\ntraumatic swelling and Samar Bahadur Singh received one lacerated wound, two
\ncontusions, one abrasion and a traumatic swelling.\n<\/p>\n
       After conclusion of the evidence, the trial court came to the conclusion
\nthat the appellants have not been able to prove their injury reports nor they have
\nbeen able to prove their incident. The counter version by the complainant party
\nwas reliable as they have taken prompt action in lodging the F.I.R., therefore, the
\ntrial court discarded the theory of self-defence and also rejected the arguments in
\nregard to the unexplained injuries on the person of the appellants. The minor
\ncontradictions on the part of the Investigating Officer were also ignored. It was
\nalso found that specific efforts were not made by the defence to produce Dr. R.K.
\nGupta and neither it was confirmed from his pension papers and, therefore, the
\nsecondary evidence led by the appellants was rejected and they were convicted as
\naforesaid.\n<\/p>\n
       The argument advanced on behalf of the appellants is that the prosecution
\nhas come out with a specific case that the complaint party was totally unarmed
\nand that they did not inflict any injury in self-defence. They were attacked upon
\nby the accused appellants and they tried themselves by protesting physically and
\nwhen a specific question was put during the course of cross-examination to the
\nprosecution witnesses and the injured, they specifically stated that the appellants
\ndid not receive any injury. The submission, therefore, is that in view of the
\ncategorical case set up by the prosecution that no injury was received by the
\nappellants, the implication of the appellants becomes doubtful as there are
\nspecific injuries sustained by the appellants and in absence of any explanation
\nbeing given, the prosecution case becomes doubtful. It is not necessary that the
\nappellants to prove the case by way of defence evidence, but upon preponderance
\nof possibilities and upon considering the entire prosecution evidence if a doubt is
\ncreated in regard to the prosecution case, then the accused is entitled for benefit
\nof doubt. Further submission is that the injuries, as alleged by the prosecution,
\ncannot be sustained as the alleged assault is said to be made on the complainant
\nand his son, who were sitting on the cot and if the accused were standing and
\nthey attacked the complainant and his son in a sitting position, then the injuries
\nwould be received on the top of the head rather on the temporal region or any
\n                                          3<\/span><\/p>\n
other region. It is also submitted that the incident has not taken place as alleged
\nin the F.I.R., but it has taken place as alleged in the cross F.I.R. and that is why
\nthe injuries could not correspond to the manner of assault as alleged by the
\nprosecution. The appellants have proved their case of cross version by examining
\nD.W.-1 and D.W.-2 by placing on record the photostat copy of the injury reports
\nand the F.I.R., which were proved by them as secondary evidence. The appellants
\nalso moved an application on 9.2.1995 for summoning the aforesaid final report
\nsubmitted by the Investigating Officer, but the trial court has not ensured the
\nsummoning of the said final report and documents contained therein. Dr. R.K.
\nGupta, who examined the appellants, had retired long back and so an application
\nwas moved on 31.10.1995 to prove the injury reports by means of secondary
\nevidence. Smt. Sarla Mishra proved the signatures of Dr. R.K. Gupta, whereas
\nD.W.-2 Mahendra Kumar Tripathi, Pharmacist, who had been working in the
\nPrimary Health Centre, came along with the register and he specifically proved
\nthat the photostat copy is the true version of the report contained in the original
\nregister and so the accused persons have discharged their burden.\n<\/p>\n
       Learned A.G.A. on the other hand has submitted that the secondary
\nevidence has not been up to the mark to prove the documents as alleged by the
\nappellants. The scribe was not produced and neither any steps were taken for
\nsummoning the witnesses and no summons were issued to the witnesses. He has
\nalso placed reliance upon Section 32 of the Indian Evidence Act (hereinafter
\nreferred to as the ‘Act’). He has further submitted that it has also not been proved
\nas to whether the doctor was alive or dead. The burden was on the accused to
\nprove the injury reports as contemplated under Section 101 of the Act and in
\naccordance with Section 105 of the Act the accused has to prove and plead the
\ncross case. It is further submitted that although an application was made under
\nSection 313 Cr.P.C. that injuries were received in self-defence, but no documents
\nwere proved, so there was no question of disproving any document. He has also
\nsubmitted that Section 96 I.P.C. gives right to private defence, but subject to
\nlimitation as contemplated under Section 99 I.P.C. The F.I.R. was lodged on the
\nnext date and no explanation for delay was given. He has also submitted that the
\ndefence cannot be raised by way of Section 313 Cr.P.C. and written statement is
\nnot permissible under Section 313 Cr.P.C. There was strong motive to commit the
\ncrime as the accused appellants wanted that the complainant may not give
\nevidence in the murder case, which was pending against them and with that view
\nthey were attacked. After the present case, evidence was recorded in that case
\n                                         4<\/span><\/p>\n
and the appellants were convicted for life. After the final report was submitted,
\nthe appellants should have filed protest application, but they accepted the final
\nreport, so the same became final. It is also submitted that for fault of
\nInvestigating Officer the prosecution cannot be thrown out.\n<\/p>\n
       I have heard learned counsel for the parties and gone through the record.
\n       The first question, which falls for consideration is as to in what manner
\nand to what extent the right of private defence can be taken by the Court while
\nconsidering the evidence on record and upon preponderance of possibilities
\nwhere the defence is obliged to discharge its burden by adducing evidence to
\ndisprove the circumstances or upon preponderance of possibilities and
\nconsidering the entire prosecution case if there is a doubt in the mind of the
\nJudge, then whether the said evidence can be taken into consideration and the
\naccused can be acquitted.\n<\/p>\n
       Learned counsel for the appellants in order to put forward his argument
\nthat even if positive evidence is not led by the defence to dispel the prosecution
\nagainst the accused, even then the Court can look into the entire evidence and
\ncomes to a conclusion that the accused persons acted in exercise of private
\ndefence. In support of his contention he has relied upon the case of Lakshmi
\nSingh and others etc., vs. State of Bihar, AIR 1976 SC 2263, wherein the apex
\ncourt held as under:\n<\/p>\n
              ” 11. x x x x In Puran Singh v. The State of Punjab,
\n      Criminal Appeal No.266 of 1971 decided on April 25, 1975 =
\n      (reported in AIR 1975 SC 1674) which was also a murder case this
\n      Court while following an earlier case observed as follows:\n<\/p><\/blockquote>\n
              ” In State of Gujarat v. Sai Fatima (Criminal Appeal
\n      No.67 of<\/a> 1971 decided on March 19, 1975)= (reported in AIR 1975
\n      SC 1478) one of us (Untwalia, J.) speaking for the Court, observed
\n      as follows:\n<\/p><\/blockquote>\n
              “In a situation like this when the prosecution fails to explain
\n      the injuries on the person of an accused, depending on the facts of
\n      each case, any of the three results may follow:\n<\/p><\/blockquote>\n
      (1)    That the accused had inflicted the injuries on the
\n             members of the prosecution party in exercise of the right
\n             of self defence.\n<\/p><\/blockquote>\n
      (2)    It makes the prosecution version of the occurrence doubtful
\n             and the charge against the accused cannot be held to have
\n             been proved beyond reasonable doubt.\n<\/p><\/blockquote>\n
      (3)    It does not affect the prosecution case at all.”\n<\/p><\/blockquote>\n
            The facts of the present case clearly fall within the four
\n      corners of either of the first two principles laid down by this
\n      judgment. In the instant case, either the accused were fully justified
\n      in causing the death of the deceased and were protected by the
\n                                         5<\/span><\/p>\n
      right of private defence or that if the prosecution does not explain
\n      the injuries on the person of the deceased the entire prosecution
\n      case is doubtful and the genesis of the occurrence is shrouded in
\n      deep mystery, which is sufficient to demolish the entire prosecution
\n      case.”\n<\/p><\/blockquote>\n
             It seems to us that in a murder case, the non-explanation of
\n      the injuries sustained by the accused at about the time of the
\n      occurrence or in the course of altercation is a very important
\n      circumstance form which the Court can draw the following
\n      inferences:\n<\/p><\/blockquote>\n
      (1)     That the prosecution has suppressed the genesis and the
\n      origin of the occurrence and has thus not presented the true
\n      version;\n<\/p><\/blockquote>\n
      (2)     That the witnesses who have denied the presence of the
\n      injuries on the person of the accused are lying on a most material
\n      point and therefore their evidence is unreliable;
\n      (3)     That in case there is a defence version which explains the
\n      injuries on the person of the accused it is rendered probable so as
\n      to throw doubt on the prosecution case.\n<\/p><\/blockquote>\n
              The omission on the part of the prosecution to explain the
\n      injuries on the person of the accused assumes much greater
\n      importance where the evidence consists of interested or inimical
\n      witnesses or where the defence gives a version which competes in
\n      probability with that of the prosecution one. In the instant case,
\n      when it is held, as it must be, that the appellant Dasrath Singh
\n      received serious injuries which have not been explained by the
\n      prosecution, then it will be difficult for the Court to rely on the
\n      evidence of Pws.1 to 4 and 6 more particularly, when some of these
\n      witnesses have lied by stating that they did not see any injuries on
\n      the person of the accused. Thus neither the Sessions Judge nor the
\n      High Court appears to have given due consideration to this
\n      important lacuna or infirmity appearing in the prosecution case.
\n      We must hasten to add that as held by this Court in state of Gujarat
\n      v. Bai Fatima, Criminal Appeal No.67 of<\/a> 1971 decided on March
\n      19, 1975 : (reported in AIR 1975 SC 1478) there may be cases
\n      where the non-explanation of the injuries by the prosecution may
\n      not affect the prosecution case. This principle would obviously
\n      apply to cases where the injuries sustained by the accused are
\n      minor and superficial or where the evidence is so clear and cogent,
\n      so independent and disinterested, so probable, consistent and
\n      credit-worthy, that it far outweights the effect of the omission on the
\n      part of the prosecution to explain the injuries. The present,
\n      however, is certainly not such a case, and the High Court was,
\n      therefore, in error in brushing aside this serious infirmity in the
\n      prosecution case on unconvincing premises.”<\/p><\/blockquote>\n
      In the case of Vijayee Singh and others v. State of U.P., (1990) 3 SCC
\n190, the apex court after considering the law laid down by the apex Court in
\nvarious cases held as under:\n<\/p>\n
             ” The phrase “burden of proof” is not defined in the Act. In
\n      respect of criminal cases, it is an accepted principle of criminal
\n      jurisprudence that the burden is always on the prosecution and
\n      never shifts. This flows from the cardinal principle that the accused
\n                                    6<\/span><\/p>\n
is presumed to be innocent unless proved guilty by the prosecution
\nand the accused is entitled to the benefit of every reasonable doubt.\n<\/p><\/blockquote>\n
Section 105 of the Evidence Act is in the following terms:\n<\/p>\n
        “105. When a person is accused of any offence, the burden
\nof proving the existence of circumstances bringing the case within
\nany of the General Exceptions in the Indian Penal Code, or within
\nany special exception or proviso contained in any other part of the
\nsame Code, or in any law defining the offence, is upon him, and
\nthe Court shall presume the absence for such circumstances.”\n<\/p>\n
        The Section to some extent places the onus of proving any
\nexception in a penal statute on the accused. The burden of proving
\nthe existence of circumstances bringing the case within the
\nexceptions mentioned therein is upon him. The Section further lays
\ndown that the Court shall presumenon-existence of circumstances
\nbringing the case within an exception. The words “the burden of
\nproving the existence of circumstances” occurring in the Section
\nare very significant. It is well settled that “this burden” which rests
\non the accused does not absolve the prosecution from discharging
\nits initial burden of establishing the case beyond all reasonable
\ndoubts. It is also well-settled that the accused need not set up a
\nspecific plea of his offence and adduce evidence. That being so the
\nquestion is: what is the nature of burden that lies on the accused
\nunder Section 105 if benefit of the general exception of private
\ndefence is claimed and how it can be discharged? In Woolmington
\nv. The Directorof Public Prosecutions, [1935] Appeal Cases 462,
\nViscount Sankey, L.C. observed:\n<\/p>\n
        “When evidence of death and malice has been given (this is
\na question for the jury), the prisoner is entitled to show, by
\nevidence or by examination of the circumstances adduced by the
\nCrown that the act on his part which caused death was either
\nunintentional or provoked. If the jury are either satisfied with his
\nexplanation or, upon a review of all the evidence, are left in
\nreasonable doubt whether, even if his explanation be not accepted,
\nthe act was unintentional or 588 provoked, the prisoner is entitled
\nto be acquitted.”\n<\/p>\n
        It is further observed:\n<\/p>\n
        “Just as there is evidence on behalf of the prosecution so
\nthere may be evidence on behalf of the prisoner which may cause
\na doubt as to his guilt. In either case, he is entitled to the benefit of
\nthe doubt. But while the prosecution must prove the guilt of the
\nprisoner, there is no such burden laid on the prisoner to prove his
\ninnocence and it is sufficient for him to raise a doubt as to his
\nguilt; he is not bound to satisfy the jury of his innocence …\n<\/p>\n
        Throughout the web of the English criminal law one golden
\nthread is always to be seen, that it is the duty of the prosecution to
\nprove the prisoner’s guilt subject to what I have already said as to
\nthe defence of insanity and subject also to any stationary
\nexception. If, at the end of and on the whole of the case, there is
\nreasonable doubt created by the evidence given by either the
\nprosecution or the prisoner as to whether the prisoner killed the
\ndeceased with a malicious intention, the prosecution has not made
\nout the case and the prisoner is entitled to an acquittal. No matter
\nwhat the charge or where the trial, the principle that the
\nprosecution must prove the guilt of the prisoner is part of the
\n                                   7<\/span><\/p>\n
common law of England and no attempt to whittle it down can be
\nentertained.”\n<\/p>\n
   Emperor v. U. Dampala, AIR<\/a> 1937 Rangoon 83, a full Bench of
\nthe Rangoon High Court following the Woolmington’s case held
\nthat the ratio therein is not in any way inconsistent with the law in
\nBritish India, and that indeed the principles there laid down from
\nvaluable guide to the correct interpretation of Section 105 of the
\nEvidence Act and the full Bench laid down that even if the evidence
\nadduced by the accused fails to prove the existence of
\ncircumstances bringing the case within the exception or exceptions
\npleaded, the accused is entitled to be acquitted if upon a
\nconsideration of the evidence as a whole the court is left in a state
\nof reasonable doubt as to whether the accused is or is not entitled
\nto the benefit of the exception pleaded.\n<\/p>\n
   We have noticed that Section 105 requires that when a person is
\naccused of any offence, the burden of proving the existence of
\ncircumstances bringing the case within any of the General
\nExceptions or special exception or proviso contained in any
\npart of the Penal Code is on him and the Court shall presume the
\nabsence of such circumstances. This presumption is rebuttable.
\nIn Parbhoo and Ors. v. Emperor, AIR<\/a> 1941 Allahabad 402, a Full
\nBench of seven Judges considered the scope of Sections 102 and
\n105 of the Evidence Act. The majority agreed with the view taken
\nby the Full Bench in Dampala’s case. In Parbhoo’s case Bajpai, J.
\nin his concurring judgment observed that Section 105 is stated in
\ntwo forms, that of a rule as to the burden of proof and that of a
\npresumption and that the burden of proving the guilt of the accused
\nalways rests on the prosecution and never: shifts and the learned
\nJudge further held that the doubt cast in connection with the right
\nof private defence must be a reasonable doubt and if there is
\nsuch a reasonable doubt, it casts a doubt on the entire case of the
\nprosecution and that the result is that the accused gets a benefit of
\ndoubt. “The presumption laid down in Section 105 of the Evidence
\nAct might come into play but it does not follow therefrom that the
\naccused must be convicted even when the reasonable doubt under
\nthe plea of the right of private defence or under any other plea
\ncontained in the general or special exceptions pervades the whole
\ncase.” In Dampala’s case Dunkley, J. while concurring with the
\nmajority view after discussing the law on the subject observed:\n<\/p>\n
        “The conclusion, therefore, is that if the Court either is
\nsatisfied from the examination of the accused and the evidence
\nadduced by him, or from circumstances appearing from the
\nprosecution evidence, that the existence of circumstances bringing
\nthe case within the exception or exceptions pleaded has been
\nproved, or upon a review of all the evidence is left in reasonable
\ndoubt whether such circumstances had existed or not, the accused
\nin the case of a general exception is entitled to be acquitted, or, in
\nthe case of a special exception, can be convicted of a minor
\noffence.”\n<\/p>\n
        This case has been followed subsequently by a number of
\nHigh Courts.\n<\/p>\n
    In K.M. Nanavati v. State of Maharashtra, [1962] Suppl. 1 SCR
\n567 it is observed that:\n<\/p>\n
        “In India, as it is in England, there is a presumption of
\n                                   8<\/span><\/p>\n
innocence in favour of the accused as a general rule, and it is the
\nduty of the prosecution to prove the guilt of the accused; to put it in
\nother words, the accused is presumed to be innocent until his guilt
\nis established by the prosecution. But when an accused relies upon
\nthe General Exceptions in the Indian Penal Code or on any special
\nexception or proviso contained in any other part of the Penal
\nCode, or in any law defining an offence, Section 105 of the
\nEvidence Act raises a presumption against the accused and also
\nthrows a burden on him to rebut the said presumption. Under that
\nSection the Courts shall presume the absence of circumstances
\nbringing the case within any of the exceptions, that is, the Court
\nshall regard the nonexistence of such circumstances as proved till
\nthey are disproved…..This presumption may also be rebutted by
\nadmissions made or circumstances elicited by the evidence led by
\nthe prosecution or by the combined effect of such circumstances
\nand the evidence adduced by the accused. But the section does not
\nin any way affect the burden that lies on the prosecution to prove
\nall the ingredients, of the offence with which the accused is
\ncharged; that burden never shifts. The alleged conflict between the
\ngeneral burden which lies on the prosecution and the special
\nburden imposed on the accused under Section 105 of the Evidence
\nAct is more imaginary than real. Indeed, there is no conflict at all.”\n<\/p>\n
       In Dahyabhai Chhaganbhai Thakkar v. State of Gujarat,
\nAIR<\/a> 1964 SC 1563 it is observed:\n<\/p>\n
       “It is fundamental principle of criminal jurisprudence that
\nan accused is presumed to be innocent and, therefore, the burden
\nlies on the prosecution to prove the guilt of the accused beyond
\nreasonable doubt. The prosecution, therefore, in a case of homicide
\nshall prove beyond reasonable doubt that the accused caused
\ndeath with the requisite intention described in Section 299 of the
\nPenal Code. The general burden never shifts and it always rests
\non the prosecution. But, under Section 105 of the Evidence Act the
\nburden of proving the existence of circumstances bringing the
\ncase within the exception lies on the accused; and the Court shah
\npresume the absence of such circumstances. Under Section 105 of
\nthe Evidence Act, read with the definition of “shall presume” in
\nSection 4 thereof, the Court shall regard the absence of such
\ncircumstances as proved unless, after considering the matters
\nbefore it, it believes that the said circumstances existed or their
\nexistence was so probable that a prudent man ought, under the
\ncircumstances of the particular case, to act upon the supposition
\nthat they did exist. To put it in other words, the accused will have
\nto rebut the presumption that such circumstances did not exist, by
\nplacing material before the Court sufficient to make it consider the
\nexistence of the said Circumstances so-probable that a prudent
\nman would act upon them. The accused has to satisfy the standard
\nof a “prudent man”. If the material placed before the Court such
\nas, oral and documentary evidence, presumptions, admissions or
\neven the prosecution evidence, satisfies the test of “prudent man”,
\nthe accused will have discharged his burden. The evidence so
\nplaced may not be sufficient to discharge the burden under Section
\n105 of the Evidence Act, but it may raise a reasonable doubt in the
\nmind of a Judge as regards one or other of the necessary
\ningredients of the offence itself. It may, for instance, raise a
\n                                  9<\/span><\/p>\n
reasonable doubt in the mind of the Judge whether the accused had
\nthe requisite intention laid down in Section 299 of the Penal
\nCode.”\n<\/p>\n
        A careful reading of these two decisions would reveal that
\nthe statement of law therein neither expressly nor impliedly
\noverrules or is in conflict with the majority view in Parbhoo’s case.
\nHowever, in Rishi Kesh Singh & Ors. v. The State, AIR 1970
\nAllahabad 51, the question that came up for consideration before
\na Larger Bench consisting of nine Judges was whether the dictum
\nin Parbhoo’s case is still a good law on the ground that some of
\nthe decisions of the Supreme Court have cast a cloud of doubt. A
\nmajority of seven Judges approved the principle laid down in
\nParbhoo’s case. The Larger Bench also referred to various
\nsubsequent decisions of the Supreme Court including the
\nNanavati’s case; Bhikari v. State of Uttar Pradesh, AIR<\/a> 1966 SC 1
\nand Dahyabhai’s case, Beg, J., as he then was, in a separate but
\nconcurring judgment after referring to the Nanavati’s case;
\nBhikari’s ease; Dahyabhai’s case and Mohar Rai & Bharath
\nRai’s case, held that there is no conflict between what was held by
\nthe Supreme Court and the majority view taken in Parbhoo’s case.
\nAfter analysing the view expressed by the Surpeme Court in the
\nseveral above mentioned decisions, Beg, J. observed:\n<\/p>\n
        “After a close scrutiny of every part of each of the seven
\nopinions in Parbhoo’s case [1941] All LJ 619=AIR 1941All 402
\n(FB). I have come to the conclusion that the majority of their
\nLordships did not lay down anything beyond three important
\npropositions which, if not either directly or indirectly supported by
\ndecisions of their Lordships of the Supreme Court, have not been
\naffected in the slightest degree by these decisions. These
\npropositions are; firstly, that no evidence appearing in the case to
\nsupport the exception pleaded by the accused can be excluded
\naltogether from consideration on the ground that the accused has
\nnot proved his plea fully; secondly, that the obligatory presumption
\nat the end of Sec.105 is necessarily lifted at least when there is
\nenough evidence on record to justify giving the benefit of doubt to
\nthe accused on the question whether he is guilty of the offence with
\nwhich he is charged; and, thirdly, if the doubt, though raised due
\nto evidence in support of the exception pleaded, is reasonable and
\naffects an ingredient of the offence with which the accused is
\ncharged, the accused would be entitled to an acquittal. As I read
\nthe answer of the majority in Parbhoo’s case [1941] All LJ 619 =
\nAIR 1941 All 402 (FB) I find it based on these three propositions
\nwhich provide the ratio decidendi and this is all that needs to be
\nclarified.”\n<\/p>\n
        “The practical result of the three propositions stated above
\nis that an accused’s plea or an exception may reach one of three
\nnot sharply demarcated stages, one succeeding the other,
\ndepending upon the effect of the whole evidence in the case judged
\nby the standard of a prudent man weighing or balancing
\nprobabilities carefully. These stages are; firstly, a lifting of the
\ninitial obligatory presumption given at the end of Sec. 105 of the
\nAct; secondly, the creation of a reasonable doubt about the
\nexistence of an ingredient of the offence; and thirdly, a complete
\nproof of the exception by “a preponderance of probability”, which
\n                                  10<\/span><\/p>\n
covers even a slight tilt of the balance of probability in favour of
\nthe accused’s plea. The accused is not entitled to an acquittal if his
\nplea does not get beyond the first stage. At the second stage, he
\nbecomes entitled to acquittal by obtaining a bare benefit of doubt.
\nAt the third stage, he is undoubtedly entitled to an acquittal. This,
\nin my opinion, is the effect of the majority view in Parbhoo’s case
\nwhich directly relates to first two stages only. The Supreme Court
\ndecisions have considered the last two stages so far, but the first
\nstage has not yet been dealt with directly or separately there in
\nany case brought to our notice.”\n<\/p>\n
       Mathur, J., with whom five Judges agreed, while holding
\nthat ratio laid down by the majority in Parbhoo’s case is in
\nconformity with law, however, observed that the reasoning in
\nsupport of the conclusions is erroneous. Beg, J. was not prepared
\nto go to that extent. The majority speaking through Shri Mathut, J.
\nlaid down that the dictum in Parbhoo’s case which is still a good
\nlaw, can, however, be modified as follows:\n<\/p>\n
       “In a case in which any General Exception in the Indian
\nPenal Code, or any special exception or proviso contained in
\nanother part of the same Code, or in any law defining the offence,
\nis pleaded or raised by an accused person and the evidence led in
\nsupport of such plea, judged by the test of the preponderance of
\nprobability, as in a civil proceeding, fails to displace the
\npresumption arising from Section 105 of the Evidence Act, in other
\nwords, to disprove the absence of circumstances bringing the case
\nwithin the said exception; but upon a consideration of the evidence
\nas a whole, including the evidence given in support of the plea
\nbased on the said exception or proviso, a reasonable doubt is
\ncreated in the mind of the Court, as regards one or more of the
\ningredients of the offence, the accused person shall be entitled to
\nthe benefit of the reasonable doubt as to his guilt and hence to
\nacquittal of the said offence.”\n<\/p>\n
    Learned counsel for the State, however, submitted that if the
\nview taken by the Allahabad High Court is to be accepted then it
\nwould amount to throwing the burden on the prosecution not only
\nto establish the guilt of the accused beyond all reasonable doubt
\nbut also that the accused is not entitled to benefit of any exception
\nand if such a principle is laid down then Section105 of the
\nEvidence Act would be rendered otiose and there would be
\ninconsistency between Sections 102 and 105. This very question
\nhas been answered by the Supreme Court in Nanavati’s case and it
\nhas been held that the general burden of proving the ingredients of
\nthe offence is always on the prosecution but the burden of proving
\nthe circumstances attracting the exception lies on the accused. But
\nthe failure on the part of the accused to establish all the
\ncircumstances bringing his case under the exception does not
\nabsolve the prosecution to prove the ingredients of the offence and
\nthe evidence relied upon by the accused in support of his claim for
\nthe benefit of the exception though insufficient to establish the
\nexception may be sufficient to negative one or other of the
\ningredients of the offence and thus throw a reasonable doubt on the
\nessential ingredients of the offence of murder. The accused for the
\npurpose of discharging this burden under Section 105 can rely also
\non the probabilities. As observed in Dahyabhai’s case “the accused
\n                                         11<\/span><\/p>\n
      will have to rebut the presumption that such circumstances did not
\n      exist” by placing material before the court which satisfies the
\n      standard of a prudent man and the material may consist of oral
\n      and documentary evidence, presumptions, admissions or even the
\n      prosecution evidence and the material so placed may not be
\n      sufficient to discharge the burden under Section 105 of the
\n      Evidence Act but it may raise a reasonable doubt in the mind of a
\n      Judge as regards one or other of the necessary ingredients of the
\n      offence itself. Therefore, there is no such infirmity in the   view
\n      taken in these cases about the scope and effect of Sections 102 and
\n      105 of the Evidence Act.\n<\/p>\n
         We have not come across any case of the Supreme Court where
\n      the ratio laid down in Parbhoo’s case and which was
\n      subsequently approved by a larger Bench in Rishi Kesh Singh’s
\n      case has been considered comprehensively.”\n<\/p>\n
      In the case of Laxman Singh vs. Poonam Singh and others, 2003 (4)
\nCrimes 1 SC, their Lordships again reemphasized the same principle in para 6 of
\nthe judgment, which is as follows:\n<\/p>\n
              ” 6. Only question which needs to be considered, is the
\n      alleged exercise of right of private defence. Section 96, IPC
\n      provides that nothing is an offence which is done in the exercise
\n      of the right of private defence. The Section does not define the
\n      expression ‘right of private defence’. It merely indicates that
\n      nothing is an offence which is done in the exercise of such right.
\n      Whether in a particular set of circumstances, a person acted in
\n      the exercise of the right of private defence is a question of fact to
\n      be determined on the facts and circumstances of each case. No
\n      test in the abstract for determining such a question can be laid
\n      down. In determining this question of fact, the Court must
\n      consider all the surrounding circumstances. It is not necessary for
\n      the accused to plead in so many words that he acted in self-
\n      defence. If the circumstances show that the right of private
\n      defence was legitimately exercised, it is open to the Court to
\n      consider such a plea. In a given case the Court can consider it
\n      even if the accused has not taken it, if the same is available to be
\n      considered from the material on record. Under Section 105 of the
\n      Indian Evidence Act, 1872 (in short ‘the Evidence Act’), the
\n      burden of proof is on the accused, who sets of the plea of self-
\n      defence, and, in the absence of proof, it is not possible for the
\n      Court to presume the truth of the plea of self-defence. The Court
\n      shall presume the absence of such circumstances. It is for the
\n      accused to place necessary material on record either by himself
\n      adducing positive evidence or by eliciting necessary facts from
\n      the witnesses examined for the prosecution. An accused taking the
\n      plea of the right of private defence is not required to call
\n      evidence; he can establish his plea by reference to circumstances
\n      transpiring from the prosecution evidence itself. The question in
\n      such a case would be a question of assessing the true effect of the
\n      prosecution evidence, and not a question of the accused
\n      discharging any burden. Where the right of private defence is
\n      pleaded, the defence must be a reasonable and probable version
\n      satisfying the Court that the harm caused by the accused was
\n                                        12<\/span><\/p>\n
      necessary for either warding off the attack or for forestalling the
\n      further reasonable apprehension from the side of the accused. The
\n      burden of establishing the plea of self-defence is on the accused
\n      and the burden stands discharged by showing preponderance of
\n      probabilities in favour of that plea on the basis of the material on
\n      record. (See Munshi Ram and Ors. v. Delhi Administration (AIR<\/a>
\n      1968 SC 702), State of Gujarat v. Bai Fatima (AIR<\/a> 1975 SC
\n      1478), State of U.P. v. Mohd. Musheer Khan (AIR<\/a> 1977 SC 2226),
\n      and Mohinder Pal Jolly v. State of Punjab (AIR<\/a> 1979 SC 577).
\n      Sections 100 to 101 define the extent of the right of private
\n      defence of body. If a person has a right of private defence of
\n      body under Section 97, that right extends under Section 100 to
\n      causing death if there is reasonable apprehension that death or
\n      grievous hurt would be the consequence of the assault. The oft
\n      quoted observation of this Court in Salim Zia v. State of U.P. (AIR<\/a>
\n      1979 SC 391), runs as follows:\n<\/p><\/blockquote>\n
             “It is true that the burden on an accused person to
\n      establish the plea of self-defence is not as onerous as the one
\n      which lies on the prosecution and that, while the prosecution is
\n      required to prove its case beyond reasonable doubt, the accused
\n      need not establish the plea to the hilt and may discharge his onus
\n      by establishing a mere preponderance of probabilities either by
\n      laying basis for that plea in the cross-examination of the
\n      prosecution witnesses or by adducing defence evidence.”\n<\/p><\/blockquote>\n
      While dealing with the similar in the case of Narain Singh and others v.\n<\/p><\/blockquote>\n
State of Haryana, 2008 AIR SCW 2641, the apex court held as under:\n<\/p>\n
             ” The number of injuries is not always a safe criterion for
\n      determining who the aggressor was. It cannot be stated as a
\n      universal rule that whenever the injuries are on the body of the
\n      accused persons, a presumption must necessarily be raised that
\n      the accused persons had caused injuries in exercise of the right of
\n      private defence. The defence has to further establish that the
\n      injuries so caused on the accused probabilise the version of the
\n      right of private defence. Non-explanation of the injuries
\n      sustained by the accused at about the time of occurrence or in the
\n      course of altercation is a very important circumstance. But mere
\n      non-explanation of the injuries by the prosecution may not affect
\n      the prosecution case in all cases. This principle applies to cases
\n      where the injuries sustained by the accused are minor and
\n      superficial or where the evidence is so clear and cogent, so
\n      independent and disinterested, so probable, consistent and credit-
\n      worthy, that it far outweighs the effect of the omission on the part
\n      of the prosecution to explain the injuries. [See Lakshmi Singh v.
\n      State of Bihar (AIR 1976 SC 2263)]. A plea of right of private
\n      defence cannot be based on surmises and speculation. While
\n      considering whether the right of private defence is available to an
\n      accused, it is not relevant whether he may have a chance to inflict
\n      severe and mortal injury on the aggressor. In order to find
\n      whether the right of private defence is available to an accused,
\n      the entire incident must be examined with care and viewed in its
\n      proper setting. Section 97 deals with the subject matter of right of
\n      private defence. The plea of right comprises the body or property
\n                                         13<\/span><\/p>\n<\/blockquote>\n
      (i) of the person exercising the right; or (ii) of any other person;
\n      and the right may be exercised in the case of any offence against
\n      the body, and in the case of offences of theft, robbery, mischief or
\n      criminal trespass, and attempts at such offences in relation to
\n      property. Section 99 lays down the limits of the right of private
\n      defence. Sections 96 and 98 give a right of private defence against
\n      certain offences and acts. The right given under Sections 96 to 98
\n      and 100 to 106 is controlled by Section 99. To claim a right of
\n      private defence extending to voluntary causing of death, the
\n      accused must show that there were circumstances giving rise to
\n      reasonable grounds for apprehending that either death or
\n      grievous hurt would be caused to him. The burden is on the
\n      accused to show that he had a right of private defence which
\n      extended to causing of death. Sections 100 and 101, IPC define
\n      the limit and extent of right of private defence.”<\/p><\/blockquote>\n
      In the case of Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4
\nSCC 54, the apex Court held as under:\n<\/p>\n
             ” Furthermore, whereas prosecution must prove the guilt
\n      of an accused beyond all reasonable doubt, the standard of proof
\n      so as to prove a defence on the part of an accused is
\n      “preponderance of probabilities”. Inference of preponderance of
\n      probabilities can be drawn not only from the materials brought on
\n      records by the parties but also by reference to the circumstances
\n      upon which he relies.\n<\/p><\/blockquote>\n
             A statutory presumption has an evidentiary value. The
\n      question as to whether the presumption whether stood rebutted or
\n      not, must, therefore, be determined keeping in view the other
\n      evidence on record. For the said purpose, stepping into the
\n      witness box by the appellant is not imperative. In a case of this
\n      nature, where the chances of false implication cannot be ruled
\n      out, the background fact and the conduct of the parties together
\n      with their legal requirements are required to be taken into
\n      consideration.”<\/p><\/blockquote>\n
      From the proposition and discussion of the law as propounded by the apex
\ncourt herein-above, it is evident that the accused were not required to lead
\nevidence specifically in support of their case, but in fact they were required to
\nand were entitled to take such plea from the evidence of the prosecution and
\ncross-examination. The accused persons have discharged their burden by proving
\nthe injury reports and the F.I.R., which were taken on record as Ext.Ka-1 and
\nExt.Ka-2 and Ext.Ka-3 and Smt. Sarla Mishra, A.N.M., who was posted at the
\nrelevant time with Dr. R.K. Gupta gave evidence to the effect that she knows the
\nsignature of Dr. R.K. Gupta and she has seen him while singing. Apart from it,
\nshe has not certified the contents, but D.W.-2, Mahendra Kumar Tripathi,
\nPharmacist, came along with the register and specifically stated that the carbon
\ncopy is the true copy of the entry made in the original register and so he proved
\n                                          14<\/span><\/p>\n
the contents, so it cannot be said that the documents were not proved.\n<\/p>\n
         The question to be taken into consideration is that as to what extent the
\nprosecution has come out with correct facts and proved their case and whether
\nthey have suppressed something from the Court while making statement and
\naccusing the appellants or whether they have come out with clean hands and
\nproved the version of the prosecution. The evidence on record goes to indicate
\nthat P.W.-1 and P.W.-2 including P.W.-3 have specifically stated in their statement
\nthat accused did not receive any injuries, but the injury reports, which were
\nplaced on record and got proved by secondary evidence certainly proved that the
\nprosecution has not come out with true version and the accused persons did
\nreceive injuries and the same could not be explained by the prosecution, so the
\nprosecution case has become doubtful in absence of explanation of injuries of
\nappellant\/accused.\n<\/p>\n
         The question as to whether the injuries sustained by the accused persons
\nhave been proved and the statements of D.W.-1 and D.W.-2 can be accepted
\nunder law, needs no further argument in view of the law laid down by the apex
\ncourt in the case of Prithi Chand vs. State of Himachal Pradesh, AIR<\/a> 1989 SC
\n702: 1989 Cr. L.J. 841. In para 4 of the aforesaid decision the apex court held as
\nunder:\n<\/p>\n
                 ” The prosecutrix was examined by Dr. C.S. Vedwa, who
\n         had issued the Medical Certificate, Ex. P-E dated 16th June,
\n         1979. The Medical Certificate shows that the prosecutrix had not
\n         developed secondary sex characters, auxiliary and pubic hair
\n         were absent and there were abrasions of 3′ x 1\/8′ and 2′ x 1\/8′ on
\n         the lumber region. She also found signs of inflamation around
\n         the vulva; the vagina was bleeding, the hymen was absent with
\n         the edges torn and there was tenderness all around. The hymen
\n         was bleeding on touch and the vagina admitted one finger with
\n         difficulty. The girl’s Salwar was blood stained. It was taken in a
\n         sealed packet along with two slides and swabs. Unfortunately,
\n         this lady Doctor who had delivered a child was not available for
\n         giving evidence as she had proceeded on long leave. The learned
\n         Sessions Judge felt that it would not be possible to secure her
\n         presence without undue delay, and therefore, permitted the
\n         prosecution to prove the certificate through PW-2 Dr. Kapila, who
\n         was conversant with her hand-writing and signature, he having
\n         worked with her for about two years. He stated that the carbon
\n         copy of the certificate Ex P-E was prepared by Dr. Vedwa by one
\n         process and bears her signature. The learned counsel for the
\n         appellant contended that this certificate was inadmissible in
\n         evidence since the prosecution has failed to prove that the
\n         original certificate was lost and not available. Section 32 of the
\n         Evidence Act provides that when a statement, written or verbal,
\n         is made by a person in the discharge of professional duty whose
\n         attendance cannot be procured without an amount of delay, the
\n                                           15<\/span><\/p>\n
      same is relevant and admissible in evidence. Besides, since one
\n      carbon copy was made by one uniform process the same was
\n      primary evidence within the meaning of explanation 2 to Section
\n      62 of the Evidence Act. Therefore the medical certificate Ex. P-E
\n      was clearly admissible in evidence. That apart, there is strong,
\n      reliable and dependable evidence of the prosecution witnesses
\n      which clearly proves that the prosecutrix was raped by the
\n      appellant.”\n<\/p><\/blockquote>\n
        Similar question arose in the case of M\/s Hindustan Construction Co.\n<\/p><\/blockquote>\n
Ltd. vs. The Union of India, AIR 1967 SC 526, in regard to veracity of the
\naward, which was signed by the Arbitrator and the non-certification by the
\numpire to the effect that certified copy is the true copy and the missing words
\n“certified to be true copy” above the signature of the Arbitrator were not found
\nmaterial and it was held that under law the same has to be accepted as true
\naward. The apex court while dealing with the question of proving the documents
\nby secondary evidence came to the conclusion that it can be proved by accurate
\nor true and full reproduction of the original. In paras 5 and 6 of the aforesaid
\njudgment, the apex court held as under:\n<\/p>\n
             ” (5) Now the word “copy” as such is not defined in the
\n      Indian Evidence Act, 1 of 1872. But we get an idea of what a copy
\n      is from the provisions of Section 63 of the Evidence Act. That
\n      section inter alia defines what secondary evidence means and
\n      includes, namely – (I) certified copies as provided in Section 76 of
\n      Evidence Act, (ii) copies made from the original by mechanical
\n      processes which in themselves insure the accuracy of the copy,
\n      and copies compared with such copies and (iii) copies made from
\n      or compared with the original. Obviously, therefore, a copy means
\n      a document prepared from the original which is an accurate or
\n      true copy of the original. In Webster’s New World Dictionary, the
\n      word “copy” means “a thing made just like another; full
\n      reproduction or transcription”. What the word “copy” in Section
\n      14 (2), therefore, requires is that it must be a full reproduction of
\n      the original and that it should be accurate or true. When a
\n      document is an accurate or true and full reproduction of the
\n      original it would be a copy. In the present case it is not in dispute
\n      that what was produced by Sri Dildar Hussain was a true or
\n      accurate and full reproduction of the original. It was, therefore, a
\n      copy of the original, and the only question that remains is
\n      whether it was signed, for if it was singed, it would be a singed
\n      copy.\n<\/p><\/blockquote>\n
             (6) This brings us to the meaning of the word “sign” as
\n      used in the expression “signed copy”. In Webster’s New World
\n      Dictionary the word “sign” means “to write one’s name on, as in
\n      acknowledging authorship, authorizing action, etc.” To write
\n      one’s name is signature. Section 3 (56) of the General Clauses Act
\n      No.10 of 1897, has not defined the word “sing” but has extended
\n      its meaning with reference to a person who is unable to write his
\n      name to include “mark” with its grammatical variations and
\n                                          16<\/span><\/p>\n
       cognate expressions. This provision indicates that signing means
\n       writing one’s name on some document or paper. In Mohesh Lal v.
\n       Busunt Kumaree, (1881) ILR 6 Cal. 340, a question arose as to
\n       what “signature” meant in connection with Section 20 of the
\n       Limitation Act, No.IX of 1871. It was observed that “where a
\n       party to a contract signs his name in any part of it in such a way
\n       as to acknowledge that he is the party contracting, that is a
\n       sufficient signature”. It was further observed that the document
\n       must be signed in such a way as to make it appear that the person
\n       signing it is the author of it, and if that appears it does not matter
\n       what the form of the instrument is, or in what part of it the
\n       signature occurs.”<\/p><\/blockquote>\n
       The aforesaid two cases are sufficient to reject the argument of learned
\nA.G.A., who has submitted and argued that the injury reports could not have
\nbeen proved by secondary evidence and the Doctor ought to have been produced
\nand whatever steps were possible were taken by the appellants. The appellants
\nmoved an application on 9.2.1995 for summoning the final report submitted by
\nthe investigating Officer, which was not summoned in spite of the fact that an
\norder was passed on the same day for summoning the same. Thereafter, another
\napplication was moved on 31.10.1995, wherein it was stated that in spite of
\nsincere efforts being made by the accused persons Dr. R.K. Gupta was not
\ntraceable and neither his district was known and, therefore, they may be
\npermitted to prove the documents by secondary evidence by presenting Smt.
\nSarla Misra, A.N.M. for which dasti summons were issued on the same day. The
\naccused persons also moved an application on 9.10.1995 for summoning Dr.
\nR.K. Gupta and the Record Keeper, Sadwa Chandrika P.H.C. On the said
\napplication an order was passed that steps be taken. All these facts go to indicate
\nthat whatever possible steps could be made by the accused persons were
\nundertaken to prove the cross version and they have succeeded to a large extent
\nto dispel the case of prosecution and to create doubt in the prosecution story
\nwhen there was a specific statement that no injury has been received by the
\naccused persons. On the basis of the law as propounded by the apex court, it is to
\nbe presumed that the accused persons were able to prove the cross version by
\nfiling photostat copies of the injury reports and the F.I.R., which were duly
\nproved by means of secondary evidence.\n<\/p>\n
       The next point, which falls for consideration, is that whether the injuries
\nas alleged by the prosecution could have been sustained by the injured when they
\nwere being attacked from the back side. The injury no.1 sustained by
\ncomplainant, Tej Bahadur Singh is lacerated wound measuring 3 cm x 0.5 cm
\nbone deep over occipital region of head and 15 cm above C-7 cervical spine, but
\n                                          17<\/span><\/p>\n
there was no report of the radiologist that the injury is sufficient in the ordinary
\ncourse to cause death. The next injury was also a lacerated wound measuring 5
\ncm x 0.5 cm bone deep over occipital region of head and 2 cm medial to injury
\nno.1. Margins were irregular. The third injury was lacerated wound measuring
\n6.5 cm x 1 cm bone deep over left occipital region of head. 8 cm above left ear
\nand the other is abrasion. Injury no.1 was kept under observation, but no report
\nwas there to prove that it is dangerous to life. The injuries sustained by other
\ninjured, namely, Krishna Kumar Singh were lacerated wound measuring 1.5. cm
\nx 0.5 cm scalp deep over right parietal region of head, 6 cm above right ear and
\nthe other was traumatic swelling. So, none of these injuries could have been
\nsustained by the injured persons in a sitting position while they were attacked
\nupon by the accused persons from the back side as alleged. If the complainant
\nparty were siting on a cot and the accused persons came behind and started
\nassaulting the injured persons, then the injuries must in all circumstances are to
\nbe received on the top of the head rather on occipital region or on the temporal
\nregion. Once the injured stood up, then the injuries ought to have been received
\nby them on the lower back of the body.\n<\/p>\n
       The counter version set up by the accused persons by way of written
\nstatement under Section 313 Cr.P.C. that while they were returning from
\nSultanpur city towards their house they were attacked upon by Shiv Nayak Singh
\nS\/o Chhotai Singh, Tej Bahadur Singh, Dal Bahadur Singh sons of Shiv Nayak
\nSingh, Ajeet Kumar and Pappu @ Krishna Kumar sons of Tej Bahadur Singh
\nwith Lathi. Thereafter, Tej Bahadur Singh fired with his Katta upon Indra
\nBahadur Singh, which missed and thereupon Indra Bahadur Singh throw him to
\nthe ground. Thereafter all the persons attacked upon the appellants with Lathis
\nand they received injuries in self-defence. Indra Bahadur Singh and his brother
\nSamar Bahar Singh also used Lathis on account of which complainant and others
\nreceived injuries. Hence, the story set up by the appellants appears to be more
\nreal story than the story set by the complainant party. But the trial court has
\nerroneously ignored the injury reports, which were proved by secondary
\nevidence and has also disbelieved the counter version set up by the accused
\npersons. The appellants have given proper explanation of the injuries received
\nby the prosecution witnesses, but the prosecution has totally denied the injuries
\nbeing sustained by the accused persons, then in such circumstances the version,
\nwhich gives a more real picture and explains the injuries sustained by both the
\nsides is to believed upon in stead of throwing the said case to the ground. The
\n                                          18<\/span><\/p>\n
appellants, therefore, cannot be said to have assaulted the complainant and his
\nson as alleged by them as the injuries sustained by them do not correspond to the
\nmanner of assault.\n<\/p>\n
       The prosecution was having strong motive to attack the appellants, who
\nwere facing trial under Section 302 I.P.C. Had there been intention to kill the
\ncomplainant and his son, then the appellants would have not attacked with Lathi,
\nbut rather they would use fire arms or deadly weapons, which also throws some
\ndoubt upon the prosecution case. The appellants have contested the case up till
\nCommissioner’s court. It may be that the appellants have been convicted under
\nSection 302 I.P.C., but in the present case it has to be seen as to what is the
\nevidence available with the prosecution to prove the case beyond reasonable
\ndoubt and to the hilt to convict the appellants. The propositions of law laid down
\nin Laxmi Singh’s case (supra) and the other cases apply with full force in the
\npresent case and, therefore, the appellants are entitled for benefit of doubt as they
\nhave been able to prove the case beyond reasonable doubt.\n<\/p>\n
       The case laws relied upon by the learned A.G.A. on the cases of Surendra
\nPaswan vs. State of Jharkhand, AIR 2004 SC 742, The State of Gujarat vs. Bai
\nFatima and<\/a> another, AIR 1975 SC 1478 and Rizan and another vs. State of
\nChhatisgarh, through the Chief Secretary, Govt. of Chhatisgarh, Raipur, AIR
\n2003 SC 976, do not apply in the facts of the present case and they have been
\nrendered in different context.\n<\/p>\n
       In the case of Bai Fatima (supra) their Lordships took the view that the
\nright of private defence was not available to the accused on the ground that they
\nhave not taken the plea of private defence in their statement under Section 342
\nCr.P.C. nor did they raise any basis for the said plea in the cross-examination or
\nby adducing any defence evidence and in those circumstances the right of private
\ndefence was denied to the accused. The prosecution case was also taken to be of
\nsuch a nature that the right of private defence was not spelt out.\n<\/p>\n
       In the case of Rizan and another (supra) the proposition to the effect that
\nminor and superficial injuries in contrast to the clear and cogent evidence are to
\nbe excluded, does not come to the rescue of the prosecution in this case as a
\nspecific plea has been taken and in para 13 of the aforesaid case it has been held
\nthat burden of establishing the plea of self-defence is of the accused and the
\nburden stand discharged by showing preponderance of probabilities in favour of
\nthat plea on the basis of the material on record and the accused persons are not
\nrequired to lead evidence and they can show such a plea by preponderance of
\n                                          19<\/span><\/p>\n
probabilities.\n<\/p>\n
        In the case of Surendra Paswan (supra) the same principle has been
\nreiterated and it has been laid down that where the accused sustained minor and
\nsuperficial injuries against the clear and cogent evidence, the same has to be
\nignored, but the said proposition does not apply in the present case as the injuries
\nwere neither minor nor superficial in nature.\n<\/p>\n
        The minor injuries as alleged by the learned A.G.A. cannot be accepted as
\nin the present case both the sides have received lacerated wounds. So one
\nattacked the other with the same force and magnitude, it cannot be said that
\ninjuries were superficial in nature. The statement recorded under Section 313
\nCr.P.C. goes to indicate that Indra Bahadur Singh fell unconscious and the
\ncondition of his brother, Samar Bahadur Singh was also serious and so they were
\nimmediately rushed to the nearest Primary Health Centre, Sadwa Chandrika
\nwhere their medical examination was conducted and they admitted by the doctor.
\nThe next day father of the appellants attended a civil case in the court and
\nthereafter lodged the report. This statement goes to indicate that the injuries were
\nnot superficial in nature, but rather they were serous to certain extent and that is
\nwhy they were admitted by the doctor.\n<\/p>\n
        Considering the entire facts and circumstances of the case, it is apparent
\nthat the prosecution has failed to establish the injuries sustained by the appellants
\nand the trial court has erred in convicting the appellants. Taking clue from Laxmi
\nSingh’s case (supra), this Court has no option except to hold that appellants are
\nentitled for benefit of doubt and are liable to be acquitted.\n<\/p>\n
        In the result, the appeal is allowed. The judgment and conviction dated
\n8.2.1996 passed by the learned IVth Additional Sessions Judge, Sultanpur is
\nhereby set aside and the appellants are held not guilty of the offence under
\nSections 307\/34 and 323\/34 I.P.C. and they are acquitted of the same. The
\nappellants are on bail. Their bail bonds and sureties are discharged for which
\nthey need not surrender unless wanted in any other case.\n<\/p>\n
                                                  January 18th , 2010
\nRao\/-<\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Indra Bahadur Singh & Others vs State Of U.P. on 18 January, 2010 1 Reserved Criminal Appeal No.72 of 1996 Indra Bahadur Singh and another … Appellants Versus The State of U.P. … Respondent ————– Hon’ble S.S. Chauhan, J. Through this appeal the appellants have challenged the judgment and conviction dated 8.2.1996 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-129503","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nIndra Bahadur Singh & Others vs State Of U.P. on 18 January, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/indra-bahadur-singh-others-vs-state-of-u-p-on-18-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Indra Bahadur Singh & Others vs State Of U.P. on 18 January, 2010 - 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