Judgment:
R.S. Chauhan, J.
1. Long family feud between two neighbouring families finally erupted on 17.10.82 causing death of Brijendra on the said of the accused-appellants before this Court and alleged attempt to murder on the side of the complainant in this case. The judgment dated 30.1.85 passed by the Sessions Judge, Bharatpur has led the accused appellants to file the present appeal against their conviction. The impugned judgment has also convinced the State to file its appeal for enhancement of sentence. Since both the appeals arise out of the same impugned judgment, they are being decided by this common judgment.
2. The accused appellant No. 1, Man Singh, has been convicted of offence under Section 148 of Indian Penal Code ('IPC for short) and has been sentenced to one year of rigorous imprisonment. He has further been convicted of offence under Section 307 IPC and sentenced to three years of rigorous imprisonment and has been imposed with a fine of Rs. 200/- and to further undergo one month of rigorous imprisonment in default of payment of the fine. The other accused persons namely, Bachhu Singh, -Badan Singh, Vikram Singh, Himmat Singh, Bhagwan Singh and Ramrati have been convicted df offence under Section 147 IPC and have been sentenced to six months of rigorous imprisonment. The have further been convicted of offences under Section 307 read with Section 147 IPC and have been sentenced to 3 years of rigorous imprisonment and further imposed with the find of Rs. 200/- and to further undergo one months rigorous imprisonment in default thereof. All the accused appellants have also been convicted of offence under Section 323 IPC and have been sentenced to six months of rigorous imprisonment.
3. The brief facts of the case are that on 17.10.82 Bhuri Singh (PW. 3) submitted a written report (Ex. P. 11) at the hospital at Bharatpur to Hetram and asked him to submit the said report at the police station. According to the said report, 'Man Singh and Brijendra S/o Kunja, Amar Singh S/o Gurji Singh by caste Jat R/o Habibpur are members of the same family. According to the complainant these people entertained an animosity against the complainant and his family for a very long time. It is claimed that Amar Singh's son was abducted, and Amar Singh had claimed that his son was abducted by the complainant's son namely, Bhima. A case was pending between the families with regard to the alleged abduction. Subsequently, Amar Singh also lodged a case of murder against Bhuri Singh's son, Bhima and his nephew, Pappu. In the murder case the Sessions Judge had acquitted Bhima and Pappu only six to seven months ago. Because of the said acquittal, the complainant claimed that the grudge deepened between him and Amar Singh, Brijendra, Man Singh, Bachhu, Himmat etc and their family members. On 14.10.82, around 8 O'clock in the morning Man Singh's wife Ramwati, was working in her 'gait' (an open space outside the house where cow dung cakes are generally kept and animals are tied). At that time the complainant's daughter-in-law, Premwati and the complainant's daughter, Rajendri, were also making cow dung cakes in the open space outside their house where animals are tied and the cow dung cakes are generally stored. Ramwati started verbally abusing the complainant's daughter-in-law, Premwati and complainant's daughter, Rajendri. Thereupon, verbal abuses were exchanged on both the sides. Ramwati threatened that 'today we will finish you off. Having said so, she walked into her house. She came back with Man Singh, Brijendra Singh, Amar Singh, Bachhu, Himmat Singh, Badan, Vikram, Bhagwan Singh, Samunder, Rama, Mst. Dulari and Mst. Maya. They entered the open space where cow dung cakes belonging to the complainant were stored. While Brijendra Singh was armed with a 12 bore gun, Man Singh had a 'Katta' (an indigenously made pistol) and the rest of them were armed with 'lathies' (wooden sticks). The moment they reached the open space belonging to the complainant, Brijendra Singh and Man Singh told his accompanying partners that 'today they should kill Premwati and Rajendri. In case any person rushes to rescue them, they will take care of such a person.' When Amar Singh, Bachhu, Badan Singh, Himmat Singh, . Vikram, Bhagwan Singh, Samander, Rama, Mst. Ramwati, Mst. Dulari, Mst. Maya started assaulting Premwati and Rajendri with 'lathies'; Premwati and Rajendra cried for help. Upon hearing their heus and cries, the complainants Shivram, Jasmat, Kunwarsen, Jugal Kishore and Rajaram rushed to the open space in order to rescue Premwati and Rajendri. As soon as they reached the place, Brijendra and Man Singh fired from their gun and 'Katta'. Consequently, the pallets from Brijendra Singh's gun hit on Shivram on his right thigh and the pallets from Man Singh's 'Katta' hit the complainant in the front of his body. The other accused persons started assaulting Jasmat, Kunwarsen and Rajaram with 'lathies' and injured them. When Brijendra and Man Singh wanted to reload their firearms, Jasmat, Kunwarsen, Rajaram and Jugal Kishore hit them with 'lathies', Consequently, Brijendra and Man Singh sustained injuries. This incident was seen by Amar Singh and many other villagers. The injured were brought to the hospital at Bharatpur and were admitted. When police came to the Bharatpur Hospital, Than Singh, Nayab Daroga from Police Station Sewar was asked to take the report of the incident. But, he did not pay any heed to the request. On 15th and 16th again Than Singh was asked to take the report, but he only yelled at the complaint. He neither took the report, nor recorded the statement of the injured persons. On 14.10.82 the complainant party was arrested from the hospital itself (as the accused appellants in this case had also lodged an FIR).' On the basis of this report which was sent to the police station, a formal FIR for offences under Section 307, 323, 147, 148 and 149 IPC was registered and the investigation commenced. Subsequently, the challan was submitted against 12 persons. Against Man Singh, a charge for offences under Section 148, 307 and 323 was framed and against the rest of the accused person the charges were framed for offences under Sections 147, 307 read with Section 149 and 326 and 323 IPC. In order to support its case, the prosecution examined sixteen witnesses and submitted twenty-one documents. Although the defence did not examine any witness, but it did submit thirty-two documents. After going through the oral and documentary evidence, the learned trial Court convicted and sentenced the appellants as aforementioned. Hence, this appeal before this Court.
4. Mr. S.S. Sunda, the learned Counsel for the appellants had raised the following contentions: Firstly, admittedly, the incident had taken place on 14.10.82 at 8.00 a.m. From the same incident, cross cases were registered one by the complainant of the present case and the other by the accused appellants against the complainant in the present case. While certain grievous injuries were suffered by the complainant in the present case, the case against the complainant was of murder as Brijendra Singh was killed in the said incident. According to the learned Counsel, the prosecution has changed the place of incident. According to the site plan (Ex.P. 24) there was no sign that any fight had taken place in the open space where the cow dung are stored and animals are tied which belonged to the complainant party. Even Investigating Officer (PW. 16) has also stated in his testimony that when he went to the scene of the crime, he did not find any sign showing that the incident had occurred at the place belonging to the complainant. In fact according to the site plan (Ex. D. 18) which was prepared in the cross case, which was instituted on the case filed by the present accused appellant against the complainant, there were sure signs that the incident had taken place in the open space which belong to the accused appellants. For, not only the body of the Brijendra was discovered there, but the blood was splattered at that place. Ex. D. 18 clearly indicated that the place of fight was not the open space belonging to the complainant, but it was the open space belonging to the accused appellants. Secondly, according to the site plan, the houses of the complainant party and of the accused appellants are opposite each other and are separated by a road. According to the learned Counsel it is in fact the complainant party who were the aggressors. Armed with firearms and other weapons, they walked over and assaulted and fired at the accused appellants. This fact is not only corroborated by the site plan (Ex. D. 18), but is also corroborated by the fact that the cover of the cartridge ('Khokha') and the pallets which were discovered at the site did belonged to the gun which was recovered from the complainant party, according to the FSL report (Ex. D. 31). It did not belong to the gun which was recovered from Brijendra according to the FSL Report (Ex. P. 30). Considering these two factors and considering the fact that the accused appellants have suffered injuries to th extent that Brijendra had died in the assault, the learned Counsel pleaded that the right of private defence is writ large in the present case. It is further argued that although in the FIR the complainant had mentioned that Brijendra arid Man Singh had suffered injuries in the assault, but in their testimonies the prosecution witnesses have consistently denied the existence of such injuries. Therefore, the prosecution has singularly failed to explain the injuries suffered by the appellants and by the deceased Brijendra. Lastly, the injured witnesses, who have changed the place of occurrence, who have denied the injuries on the accused appellants, are untrustworthy witnesses. Therefore, the conviction could not be based on their testimony.
5. On the other hand, Mr. Arun Sharma, the learned Public Prosecutor, has argued firstly that the prosecution did not change the place of occurrence as according to the site plan (Ex. P. 24) broken pieces of cow dung cakes were found in the open spaces where animals are tied and cow dung cakes are stored belonging to the complainant party. Therefore, the learned Judge was justified in concluding that the place of occurrence belonging to the complainant party. Secondly, according to the consistent testimonies of eye-witnesses, it is the accused appellants who had come armed and had fired and injured the complainant party. Thus, the accused appellants were the aggressors. Since they were aggressors, the accused appellants cannot plead the right of private defence. Lastly, that it is not the duty of the prosecution to explain the injuries caused to the accused appellants. If such an explanation were needed, then the complainant had mentioned the fact that the accused were injured in the FIR itself. The mere non-explanation of such injuries in the testimonies in the court is not fatal to the prosecution. Therefore, the prosecution had proved its case beyond reasonable doubt. Thus, the learned Public Prosecutor had supported the impugned judgment.
6. We have heard the learned Counsel for the parties, have perused the impugned judgment and have examined the record.
7. In order to decide whether the accused appellants can validly claim the right of private defence, a holistic view of the evidence needs to be taken. A mere comparison of the two site plan, namely, Ex. P. 24 (which was produced by the prosecution in the present case) and of the site plan Ex. D. 18 (which was prepared in the cross case and which has been submitted by the defence as an defence exhibit) clearly show that Ex. P. 24 does not represent a true and complete picture of the scene of the crime. Ex. P. 24 merely shows the house and the open space which belonged to the complainant party in the present case; Ex. D. 18, on the other hand, shows the existence of the house of the complainant in the present case as well as the house of the accused appellants in the present case. In order to fully understand the occurrence, it is thus better to read both these documents simultaneously. Although Ex. P. 24, shows some cow dung are broken, but it clearly records that 'there is no indication or sign to show that any fight had occurred at the open space which belonged to the complainant party.' It merely records that 'where the cow dung cakes are broken it is claimed that the assault had occurred at that particular place.' On the other hand, according to Ex. D. 18, the dead-body of Brijendra is lying at a place marked as 'A'; at place marked as 'B', blood is splattered on the ground; at place marked as '3', it is alleged that Bhuri Singh fired from that place and Bhuri Singh's house (i.e. the house of the complainant in the present case) is shown at place marked as.'5'; lastly, the cartridge was discovered at the place marked as 'A' which is a road between the two houses of the complainant party and the appellants. A comparative study of these two site plans clearly reveal that while no fight took place in the' open compound belonging to the complainant, the open compound belonging to the accused appellants is where the blood was discovered lying on the ground and the dead body of Brijendra was, discovered. It is not the case of the prosecution that in fact Brijendra was killed in the open space belonging to the complainant party and his body was taken to the open space belonging to the accused appellants. In fact such a position could not have been taken by the prosecution as there is no trail of blood going from the open space belonging to the complainant to the open space belonging to the accused appellants. Thus, obviously, the actual scene of crime is the open space belonging to the accused appellants.
8. According to the prosecution the cartridge of the bullet was discovered at place marked as 'A' in the site plan Ex. D. 18. From both the sides 12 bore guns were recovered and were sent to FSL for its opinion. According to the FSL report (Ex. P. 30) the gun recovered from the accused appellant had not been used and the cartridge recovered from the scene of the crime did not emanate from the said gun. However, according to the FSL report (Ex. D. 31) regarding the gun recovered from the complainant party, the said gun was used and the cartridge was fired from the said gun. This clearly proves that the complainant party was not only armed with firearms, but had also used the said firearm against the accused appellants. Thus, apparently it is the complainant party which had gone to the house of the accused appellants armed with deadly weapons and had assaulted and fired at the accused appellants. In order to save their lives, the accused appellants had the right of private defence to assault the complainant party specially when Brijendra was so brutally attacked as to cause his death. According to the postmortem report of Brijendra, he had suffered as many as 18 injuries and most of them were on the head or on the face. Similarly, Man Singh had also suffered two injuries-one on the frontal parietal region and the other on the right eyebrow. Once the accused appellants were assaulted by the complainant party, it was but natural for them to defend their lives. Thus, the right of private defence is writ large in the present case. Although it is true that Bhuri Singh and Shivram from the side of the complainant party had suffered fire arm injuries, but according to the FSL report the gun recovered from Brijendra was not used. Therefore, the possibility that the present accused appellants had snatched away the gun belonging to the complainant party and had used the same against the complainant party cannot be ruled out. But nonetheless, the gun was so used to repel an attack mounted by the complainants themselves. Hence, the learned trial Court has erred in not granting the benefit of right of private defence to the appellants.
9. Although, it is true that in the FIR the complainant had mentioned the circumstances in which Man Singh and Brijendra were assaulted by the complainant party, but in their testimonies the prosecution witnesses have consistently denied that the accused appellants Man Singh and the deceased Brijendra sustained any injuries. In his cross-examination Bhuri Singh (PW. 3), Shivram (PW. 4), Kunwarsen (P.W. 5), Rajaram (PW. 9), Jasmat (PW. 10) and Premwati (PW. 14) all denied the fact that Man Singh and Brijendra were injured in the said occurrence. It is only Jaggu @ Jugal Kishore (PW. 16) who, for the first time admits in the court, that Man Singh and Brijendra had suffered certain injuries. Of course, it is true that the prosecution need not explain superficial injuries caused to the accused appellants, specially when two groups fighted out among themselves. However, in the present case Brijendra had expired due to 18 injuries caused to him. The injuries were as under:
1. Verticle lacerated would 2 1/2 cm x 1/2 cm x bone deep on left temporal and parietal region and 7 cm above left ear.
2. Transverse lacerated would 2 1/2 cm x 1/2 cm x bone deep on just above left eye brow with contusion 6 cm x 1-1/2 cm.
3. Oblique lacerated would 2 cm x 1/2 cm x bone deep on the outer side of left eye with abrasion 1/2 cm x 1/2 cm on the both outer side of left eye.
4. Verticle abrasion 1-1/2 cm x 1/2 cm with contusion 2 cm x 2 cm on the outer side of left eye.
5. Black eye lits with pulvertised left eye 6 cm on left.
6. Oblique abrasion with contusion 3-1/4 cm x 1 cm on left zymomatic bone.
7. Oblique contusion 3 in number with an intervening space almost equal between the contusions 7 cm x 2 cm, 6 cm x 2 cm and 5 cm x 2 cm on left side between left-mandible to left upper lip.
8. Lacerated would 3 cm x 2 cm on upper lip on left side.
9. Right lower 5, 6, 7 and 8 teeth were present and rest of the teeth either are line out of the socket or lying with fractured mandible.
10. Oblique lacerated would 6 cm x 1/2 cm x bone deep below the left side chin.
11. Transverse contusion with an equal intervening space between the contusion 9 cm x 1-1/2 cm on left side neck lower one third.
12. 2 transverse contusions with an equal intervening space between the contusions 9 cm x 2 cm and 7 cm x 2 cm on left arm upper on third outer side.
13. Oblique contusion with an equal 1.8 space between the contusion 15 cm x 2 cm on left back lower 1/3rd.
14. Oblique contusion with an equal 1.8 space between the contusion 9 cm 2 cm on right supra scapular region near spine.
15. Abrasion with contusion 1/2 cm x 1/2 cm on right sterno clabicular joint.
16. Abrasion 1 cm x 1/2 cm between the right middle and right ring finger at N.P. Joint.
17. Abrasion 1/2 cm x 1/2 cm on the proximal phylenx of left index finger on back side.
18. Transverse contusion 3 cm x 2 cm left fore arm lower 1/3rd ulner side.
10. These injuries are neither superficial nor simple in nature. In fact they were sufficient in the ordinary course of nature to cause death of Brijendra. Hence, the prosecution was legally bound to explain these injuries caused to Brijendra. It was equally duty bound to explain the lacerated wound measuring 9' x 2' bone deep on the right frontal parietal region suffered by Man Singh. However, in their testimony the prosecution maintained a studied silence to the extent of denying these injuries. In the case of Lakshmi Singh v. State of Bihar : 1976CriLJ1736 the Hon'ble Supreme Court has observed as under:
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.
Their Lordships have further observed:there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.
11. Since the prosecution witnesses have not explained the injuries, this Court has no hesitation in concluding that the prosecution has suppressed the genesis of the origin of the occurrence. It has, thus, presented an untrue version to the trial Court. Moreover, the prosecution witnesses have changed the scene of the occurrence and have denied the existence of the injuries sustained by the appellant has his party. Therefore, the prosecution witnesses are unreliable and untrustworthy. It is, indeed, a settled principle of criminal law that 'although man may lie, but circumstances do. not.' Site plan Ex. D. 18 and the FSL Report Ex. D. 31 tend to probablise the case of the defence and knock the bottom out of the case of the prosecution. Hence, the prosecution has failed to prove its case beyond a reasonable doubt.
12. For the reasons stated above, this appeal is allowed. The accused-appellant No. 1 Man Singh S/o Kunja Singh is acquitted for the offence under Section 148, 307 and 323 of the IPC and the accused-appellants Bacchu Singh S/o Amar Singh, Badan Singh S/o Kanhaiya, Vikram Singh S/o Kanhaiya, Himmat Singh S/o Samander Singh, Bhagwan Singh S/o Douji and Ramrati W/o Man Singh are hereby acquitted of the offences under Section 147, 323 and 307/149 IPC. Since these accused appellants are on bail, their bail-bonds need not be forfeited. Since the appeal filed by the accused appellant succeeds, the question of enhancement of sentence raised by the State in its appeal does not even arise. Therefore the appeal filed by the State is dismissed.