Allahabad High Court
Ashok Misra And Ors. vs State Of U.P. on 19 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 283
Bench: Sunita Agarwal, Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 42 Case :- CRIMINAL APPEAL No. - 1466 of 2000 Appellant :- Ashok Misra And Ors. Respondent :- State of U.P. Counsel for Appellant :- R.K. Gupta,Arunesh Khare, Gautam Baghel, Lav Srivastava,Mani Shanker Mishra,Rajrshi Gupta,Shiv Badan Singh,Shiv Badan Singh Counsel for Respondent :- Govt. Advocate Alongwith Case :- CRIMINAL APPEAL No. - 1498 of 2000 Appellant :- Jaihind Singh And Another Respondent :- State of U.P. Counsel for Appellant :- A.K. Singh,Lav Srivastava,Manishanker Misra Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Pradeep Kumar Srivastava,J.
1. Heard Shri Dilip Kumar and Shri V.P. Srivastava, learned Senior Advocates assisted by Shri Ram Kishore Gupta, Mukhtesh Singh, Rajan Srivastava, Advocates and Shri M.P.Yadav, learned Advocate holding brief of Shri Shiv Badan Singh; Shri Arunesh Khare and Shri Gautam Baghel, learned Advocates for appellant no. 10. Shri. L.D.Rajbhar; Shri. Sunil Kumar Tripathi, learned A.G.As have been heard for the State.
2. Two connected criminal appeal No.1498 of 2000 and 1466 of 2000 have been filed against the judgment and order dated 20.06.2000 passed by the Special Judge (E.C. Act)/Additional Sessions Judge, Hamirpur in Session Trial No.44 of 1991 and 44-A of 1991 under Section 146/148/149/302 IPC registered as Case Crime No.20-A of 1990, Police Station- Sumerpur, District Hamirpur. By the impugned judgment, the appellants-herein (12 in number) have been convicted for offence under Section 302 read with Section 149 IPC and sentenced for life imprisonment. In addition to the same, they have been convicted of the offences under Section 147 and 148 IPC and sentenced for six months imprisonment for each offence, separately. All the punishments are to run concurrently.
3. At the outset, it is informed by the learned Advocates for the appellants that the accused appellants Shiv Baran Singh son of Ranjeet Singh, Chunubad Singh son of Pran Singh and Ram Gulam son of Ranjeet Singh had died during pendency of the appeal and the appeal has been abated for them after ascertaining the factum of their death by order dated 13.09.2019.
4. The prosecution story unfolded as under:-
5. The first information report regarding four murders committed in the field near Village Mohar, Police Station Sumerpur, District Hamirpur on 11.01.1990 at about 03.30 PM, was registered at 17.30 hours (5.30 PM) on 11.01.1990 itself, on a written report filed by the Raja Bhaiya Singh son of Phool Singh resident of Village Surauli Buzurg, Police Station Sumerpur, District Hamirpur, under Section 147, 148, 149 and 302 IPC against 15 persons. After completion of the investigation, the police had submitted the charge sheet.
6. The accused persons were committed to the Sessions court on 18.01.1991. They were charge sheeted on 15.05.1992. They denied all the charges against them being false and demanded trial. The Sessions trial had commenced against 15 accused (three of them had died during the course of trial), 12 accused persons have been convicted and sentenced for life imprisonment and other punishments as well.
7. As per the first information report (written report), on 10.01.1990 first informant Raja Bhaiya Singh son of Phool Singh resident of Village Surauli Buzurg, Police Station Sumerpur, District Hamirpur had gone to Village Kiswahi alongwith Arjun Singh son of Gulab Singh, Chatrapal Singh son of Bheesam Singh both residents of Village Surauli Buzurg and Mahesh Chandra Shukla son of Shiv Narayan resident of Mundaura, Awdhesh Kumar @ Raja Nigam son of Shiv Prasad resident of Sumerpur, District Hamirpur and Sahab Singh son of Dalgajan Singh, resident of Village Swasa Haal Mukaam Kalauki Jaar. The purpose to go to Village Kishwahi was to fix marriage of Bhopat Singh son of Chatrapal Singh with the daughter of Chhiddu Singh son of Jaggu Singh resident of Village Kishwahi. It is stated in the said report that the above named persons reached the house of Chhiddu Singh son of Jaggu Singh at Village Kiswahi on 10.01.1990 and had a talk regarding settlement of marriage. In the night of 10.01.1990, they stayed in Village Kiswahi, witnessed Ramleela in the night and remained there till the afternoon on 11.01.1990.
8. At around late afternoon on 11.01.1990, they were returning to the Village Sumerpur through Village Mohar and Chhiddu Singh came to See off them till the boundaries of Village Mohar. Soon after they left Village Mohar, Chhiddu Singh requested them to relax and have 'Supari' and then go. They sat near the road to chew 'Supari' keeping their weapons on the ground. At that point of time, Ashok Kumar and Santosh Kumar sons of Kanhaiya Lal resident of Village Mohar came with 13 other persons each carrying arms in their hands. All of the accused persons were carrying weapons such as Kulhari, Farsa, Rifle, Double Barrel Gun, Lathi. Ashok and Santosh exhorted others by saying that they (other party) were saved at the instance of deceased Mahesh but no enemy should escape. While shouting "मारो सालो को", the accused persons opened fire on all of them. But the first informant, Chhiddu Singh and Sahab Singh ran from the spot and succeeded in saving their life. Whereas, four deceased persons were gheraoed by the accused persons and brutally murdered near the field from the weapons they were carrying.
9. Leaving the dead bodies of four deceased near the field, the informant reached at the police station to lodge the first information of the incident, which occurred at around 03.30 PM as noted above. On the said written report, chick FIR was prepared with the case number registered as Case Crime No.20-A of 1990 under Section 147, 148, 149 and 302 IPC. The copy of Chick FIR was given to the informant and is proved by him on record as 'Exhibit Ka-3'. The written report submitted by the first informant is proved and exhibited as "Exhibit Ka-1".
10. The prosecution had produced three eye witnesses of fact namely Raja Bhaiya Singh (the first informant), Chhiddu Singh (PW-2) and Sahab Singh (PW-4), two of them namely Chhiddu Singh and Sahab Singh, however, turned hostile. The prosecution, thus, based its entire case on the testimony of solitary eye witness Raja Bhaiya Singh.
11. Amongst formal witnesses, PW-3, PW-7, PW-9 and PW-10 were examined being postmortem doctors. P.W-5 is the officer who conducted inquest of the dead bodies. P.W-11 is the investigating officer namely Surendra Nath Yadav.
12. Apart from the above witnesses, one more witness of fact (PW-8) Ram Babu, Village Chowkidar of villages Dundhpur and Mohar had been produced by the prosecution in the witness box to prove the occurrence of the incident as reported by him in another report lodged on 11.01.1990 at about 03.40 PM. The said report is exhibited as 'Exhibit Ka-6'. Five witnesses (DW-1 to DW-5) had been produced from the defence side to prove injury reports of three accused persons namely Balram Singh son of Phool Singh, Santosh Kumar Mishra son of Kanahiya Lal and Gaya Prasad son of Jagannath. The recovery memo of one broken rifle (from the butt) belonging to accused-appellant Balram Singh son of Phool Singh handed over by him to the police had been documented as Exhibit Ka-'43'.
13. The recovery memo of SBBL gun alongwith one canvas bag containing eight cartridges (of red color and one white) alongwith a license having photograph of deceased Chatrapal Singh found near his dead body, had been documented and exhibited as 'Exhibit Ka-29'. Plain and blood stained earth collected from below the dead body of deceased Chatrapal is the recovery memo 'Exhibit Ka-30'. The memo of blood stained clothes of Chatrapal deceased is exhibit Ka-31. The memo of blood stained clothes of deceased Mahesh Shukla son of Shiv Narayan Shukla is exhibited as 'Exhibit Ka-32'. The memo of one rifle, having one used cartridge in its chamber and one empty cartridge (of brass) found near the dead body of Mahesh Shukla son of Shiv Narayan Shukla has been exhibited as 'Exhibit Ka-33'. The memo of blood stained and plain earth collected from below the dead body of deceased Mahesh Shukla is exhibited as 'Exhibit Ka-34'.
14. The memo of one SBBL gun bolted and four empty cartridges (three green color and one white plastic) recovered from besides the dead body of Awdesh Kumar @ Raja Nigam is exhibited as 'Exhibit Ka-35'. The memo of clothes of deceased Awdesh Kumar @ Raja Nigam has been exhibited as 'Exhibit Ka-36'. The memo of blood stained and plain earth collected from below the body of deceased Awdhesh Kumar @ Raja Nigam is exhibited as 'Exhibit Ka-37'.
15. The memo of blood stained clothes of deceased Arjun Singh son of Gulab Singh had been exhibited as 'Exhibit Ka-38'. The memo of plain and blood stained earth collected from below the dead body of deceased Arjun Singh has been exhibited as 'Exhibit Ka-38'. One DBBL gun with a sealing canvas (to hang it), found on the chest of deceased Arjun Singh and the memo thereof has been exhibited as 'Exhibit Ka-40'.
16. The inquest of the four dead bodies as per the reports was conducted on 12.01.990 between 07.00 AM to 04.00 PM. First inquest commenced at around 07.00 AM of the dead body of Chatrapal Singh and completed around 09.00 AM and the last one of the dead body of Arjun Singh son of Gulab Singh had commenced at around 02.00 PM and completed at around 04.00 PM. Five witnesses of four inquests reports are; (i) Kallu Singh son of Gehwar Singh resident of Dundhpur; (ii) Ram Sahai Pal son of Chhidua Gram Pradhan Dundhpur; (iii) Binda Prasad Kewat son of Tulsi resident of Dhundhpur; (iv) Shiv Narayan Kewat son of Rameshwar resident of Village Dhundhpur; (v) Moti Lal Kewat, Gram Pradhan Mohar, resident of Village Mohar, Police Station Sumerpur.
17. Charge sheet was submitted by the police against 13 accused persons as two accused Mukhiya son of Suraj Pal and Om Prakash son of Purshottam had died before commencement of trial.
18. The Sessions trial of accused Pancha Chamar son of Mahaveer was separated and registered as Session Trial No.44-A of 1991. Whereas 10 remaining accused/appellants were tried in the Sessions Trial No.44 of 1991 (State Vs. Ashok Mishra and 9 others).
19. The Criminal Appeal No.1466 of 2000, arising out of Sessions Trial No.44 of 1991 by ten appellants (three died, remaining seven accused persons/appellants) has been argued by Sri Dilip Kumar learned Senior Advocate assisted by Shri Ram Kishore Gupta; whereas the connected Appeal No.1498 of 2000 of Pancha Chamar and Jaihind Singh arising out of Sessions Trial No.44-A of 1991 (State Vs. Pancha Chamar & others) has been argued by Sri V.P. Srivastava learned Senior Advocate assisted by Sri Lav Srivastava. Both the appeals have been heard and are being decided together by this common judgment.
20. It is vehemently argued by learned Senior Advocates appearing for the appellants that as per the prosecution story, seven persons were surrounded and attacked by the accused persons (15 in number) in a pre-planned manner while they were sitting unaware and unarmed in the field near Village Mohar. Every accused person was armed with a deadly weapon such as Kulhari, Farsa or Gun (firearm). Four persons were murdered whereas three of them had fled from the scene. This prosecution story is unbelievable as not a single injury had been caused to any of the three prosecution witnesses who as per their own version were attacked by a mob of 15 accused persons; whereas, on the other hand, three persons on the defence side had received firearm injuries. There is no whisper nor any explanation by the prosecution of the injuries caused to three accused persons, i.e. the defence side. The injuries of three above named persons (Exhibited as Exhibit 'Kha-2, 3 & 4') have been duly proved by the defence witnesses. The FIR or the PW-1 (sole eye witness) in his deposition is completely silent regarding the injuries of the defence. The first informant examined as eye witness (PW-1) on a specific question put to him in the cross examination regarding the act of firing by four deceased, had categorically denied saying that no firing was made by any of the deceased persons and that apart from the four deceased, no other person from their side was carrying any weapon. The recovery memos of the firearms belonging to four deceased found near their dead bodies indicate that their firearms (guns) was used during the incident. Empty cartridges found on the spot and used bullets found in the chamber of the gun of one of the deceased persons, are ample evidence of the said fact. The statement of denial on the part of the prosecution witnesses PW-1, thus, makes the whole story of the prosecution doubtful. Non-explanation of the injuries of defence by the prosecution in the said scenario would go to the root of the controversy and shake the version of the prosecution regarding the genesis and the manner, i.e. why and how the murders took place. The genesis of the incident is something else and the incident has not occurred in the manner as put by the prosecution. The prosecution has, thus, not come with clean hands.
21. It is further stated that two incidents of Maar Peet and firing had occurred during the day time, before noon on 11.01.1990 itself, i.e. before seven persons (four died & three escaped) who were guests took lunch at the Village of Chhiddu Singh namely Kiswahi. The incident-in-question which occurred at around 03.30 PM was infact third incident of fighting in a row during which 'Maar Peet' and 'firing' took place between two groups. The question would be as to who was the aggressor of the crime reported by PW-1. In fact, three accused persons were attacked in their own Village by four deceased persons who were carrying firearms, consequently, in retaliation and in defence of the accused persons, a mob of Villagers attacked all of them and murdered four. The accused persons cannot be said to be guilty as they have a right to exercise their private defence.
22. The Village Chowkidar PW-8 lodged a written report exhibited as 'Exhibit Ka-6', immediately reporting the incident. The written report lodged by the Village Chowkidar (PW-8) of the incident of firing by four unknown persons was registered as Case Crime No.20 of 1990. The said report being prior in point of time to the FIR lodged by PW-1 Raja Bhaiya Singh, his report should be treated as a cross-version of the defence and, accordingly, registered by the police as Case Crime No.20-A of 1990. The version of the Village Chowkidar (PW-8) in the said report is clear that he heard a 'Shoor' (noise) at around 03.30 PM on 11.1.1990 while he was in his Village and saw firing by four persons who were unknown to him. He immediately ran to the police Station Sumerpur to report the incident and on the information given by him, the report was written by the Head Moharrir, copy of which was read over to him during his deposition before the Court and as he proved it to be the same, it was exhibited as 'Exhibit Ka-6'. In his cross examination by the defence, the Village Chowkidar stated that on the information given by him, the police personnel alongwith the Station House Officer reached the spot of the crime before he himself reached back.
23. It is, then submitted by the learned Advocates that, in fact, three accused injured persons were taken to the hospital by the police officers though admittedly none of the accused persons were arrested by the police on that day. The arrest of the accused persons made later would go to show that they were implicated falsely by the prosecution after deliberations of the first informant with others in connivance with the local police.
24. It is vehemently argued that in the above facts and circumstances, it was the duty of the prosecution to explain the injuries caused to the accused persons during the course of occurrence of the incident. There is no explanation nor a whisper from the side of the prosecution as to how injuries had been caused to three accused persons and who took the injured to the hospital and got them examined. For the reason of non-explanation of injuries of the defence, whole case of the prosecution falls. None of the accused persons can be held guilty of the alleged offence of murder of four deceased who themselves were aggressors of the crime.
25. Further, it is urged that there is no evidence of any previous enmity of the deceased persons with the accused. They were from different Villages. In fact, they were guests of the Villages Mohar and Kiswahi as they came to see a girl, daughter of a fellow villager Chhiddu Singh for marriage. There was no animus. The deceased persons were unknown to the entire Village. There is not even a suggestion of enmity of the villagers or the accused persons with Chhiddu Singh of Village Kishwahi. On the other hand, the deceased persons and first informant had criminal antecedents. The four deceased persons were armed with licensed guns which may be normal for persons living in Bundelkhand area but there is no explanation on the part of the prosecution as to what motivated the appellants to assault them. Why would the accused kill four persons who were guest in the Village?
26. Further, the version of sole eye witness PW-1 is inconsistent and highly unbelievable, in as much as, he had simply denied firing by the four deceased persons whereas the said fact has been categorically proved by P.W.-8, the prosecution witness itself and also is corroborated from the recovery memo prepared by the police of the firearms of the deceased found besides their bodies. The Star prosecution witness PW-1 is a lair. The prosecution story of the incident is, thus, completely belied by the said fact.
27. It is further contended that there is one more relevant fact which needs consideration. One of the deceased Arjun Singh was own nephew of PW-1 and it is highly improbable rather inconceivable that PW-1 had left the spot of occurrence before the inquest of dead body of his nephew was done that too to attend his duties in the school. PW-1 admitted his presence on duty on 12.01.1990 in the school at Risaipara situated at about 50 KM away from the scene of incident. His version that he left the scene of incident at about 09.00 AM to attend his duty at the school furthermore makes his conduct highly questionable. Rather for his admission of being present in the school on duty on 12.01.1990, his presence in Village Kiswahi on 10.01.1990 and 11.01.1990 accompanying four deceased persons to visit the house of Chhiddu Singh is completely ruled out. The entire prosecution story is a result of concoction by PW-1 who is a related and interested witness. Even otherwise, his own personal character and that of his immediate family as reflected in the cross-examination shows that he is a man of criminal nature and was implicated in several criminal cases prior to the incident. He cannot be said to be reliable or dependable witness and his testimony being uncreditworthy cannot be made basis to convict the accused person in the murder of four strangers. PW-1 is not a witness of any of the four inquest reports. This clearly implies that he was not present at the scene of occurrence.
28. It is further pointed out that from the inquest report, it is evident that the inquest of Chatrapal Singh commenced at about 07.00 AM and completed at about 09.00 AM. As per the version of PW-1 in examination-in-chief, his statement was recorded by the police on the spot at about 06.15 AM but the site plan was not prepared as it was dark at that point of time. PW-1 is also not the witness of the site plan. He, however, states in the cross examination that the police had first prepared the site plan on 12.01.1990 and, thereafter, they proceeded to do the inquest. His version that the site plan was of the place of the incident where the dead bodies were lying is in clear contradiction to his own statement and his presence at the scene of occurrence becomes highly doubtful.
29. Further, the version of PW-1/first informant in the first information report that the murder of four persons had occurred in a field near Village Mohar is not in-consonance with the place of occurrence as shown in the site plan prepared by the investigating officer/PW-11.
30. Thus, once it is established that the sole eye witness is a liar the creditworthiness of the entire prosecution case based on his sole testimony is completely ruled out.
31. It has been further argued that in fact, non-explanation of the injuries of the defence by the prosecution would lead to an inference that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The defence version of the explanation of injuries on the persons of three accused is sufficient to create a serious doubt on the prosecution case. Reliance is placed upon the decisions of the Apex Court in Mohar Rai Vs. State of Bihar1, Laxshmi Singh & others Vs. State of Bihar2, Babu Ram & others Vs. State of Punjab3, Amar Jeet Singh Vs. State of Haryana4 & Krisne Gowda & others Vs. State of Karnataka Arhalgud Police5 to state that for the contradiction between the version of PW-1 and the prosecution evidence regarding the place of occurrence of the incident and the inherent improbabilities, the omission and infirmities of the prosecution case the defence version becomes highly probable. Non-explanation of injuries sustained by three accused persons at the time of occurrence in the course of altercation is a very important circumstance which would lead to an inference that the prosecution has failed to prove the case against the appellants beyond reasonable doubt.
32. Further argument is that moreover the police had not conducted proper investigation. One of the major lacuna evident from the version of the Investigation Officer is that the empty cartridges were neither collected from the scene of the occurrence nor tallied with the recovered guns/firearms of the four deceased. Though it was most necessary as the incident of firing was first reported by the Village Chowkidar/peon who has also proved his report by entering in the witness box. A reading of the report Exhibit 'Ka-6' indicates that PW-8 had rushed to the police station to report the incident when he saw firing by four unknown persons in the Village. His report being prior in point of time was registered as Case Crime No.20 of 1990. It was, therefore, incumbent upon the investigating officer to ascertain the reasons for injuries found on the persons of three accused. In a case of cross version of the incident of a crime, it becomes necessary for the investigating officer to examine the probabilities of the defence version. The entire investigation was illegally conducted in one direction oblivious of the above circumstance.
33. The learned counsel has also argued that even the version of the investigating officer (PW-11) that he had prepared the site plan in the presence of the first informant/complainant (PW-1) is in contradiction with the deposition of the complainant (PW-1). The statement of 'PW-11' that he did not go to the scene of incident soon after lodging of the report by the Village Peon registered as Case Crime No.20 of 1990 under Section 307 IPC, is an extra effort to establish the prosecution story. In fact, he did not conduct proper investigation of the case crime No.20 of 1990, which was nothing but a cross version of the incident reported by PW-1 as Case Crime No.20-A of 1990 giving a false version, having been lodged after due deliberations. The apparent lapses in the investigation also establishes that the prosecution has presented a wholly false version of the incident.
34. Above all, as stated by the learned counsel, in a case of injuries sustained by the accused persons at about the time of occurrence or in the course of altercation, it is the duty of the Court to consider the circumstances of the case so as to see whether the accused persons can legitimately exercise the right of private defence. It is not necessary for the accused to take the plea of right of private defence and to lead evidence. It would be sufficient to create a doubt in the prosecution case by establishing this plea by referring to the circumstances transpiring from the prosecution evidence itself. The question in such a case would be of assessing the true effect of the prosecution evidence and not the question of accused persons discharging any burden. As soon as the defence placed the necessary material on record for claiming the right of private defence, it becomes the duty of the Court to see as to whether the defence has a reasonable and probable version of his side of the story. The law that the burden of establishing the plea of self defence is on the accused cannot be stretched to the extent that the defence has to adduce positive evidence so as to establish its case beyond doubt. In other words, an accused is not under obligation to prove his defence beyond all reasonable doubts, rather, unlike the prosecution, it is only to create doubt about the prosecution case and the probabilities of its defence. The proof of defence by preponderance of probabilities is sufficient. Reliance is placed on the judgment of the Apex Court in V. Subramani Vs. State of Tamil Nadu6 and Anand Ramchandera Chougule Vs. Sidaraj Laxman Chougule & others7 to state that the firearm injuries on the persons of three accused and prompt report of firing occurred in the Village by the Village Peon (exhibit Ka-6) are material circumstances coming out of the prosecution evidence itself, which establish that the accused persons are entitled to take the right of private defence and that the defence had proved their version that four deceased persons were attacked by a mob of Villagers when they opened firing at the accused persons.
35. The defence version regarding the genesis of the incident and the reasons for altercation, in all probabilities, proved that the deceased were aggressors of the crime. The accused persons, thus, cannot be held responsible for committing homicidal death of four persons.
36. Learned AGA, on the other hand, disputing the version of the learned Advocates for the appellant submitted that instant case is not a case where plea of private defence can be pressed into service, merely because some of the accused persons have suffered firearm injuries as the presence of the injuries itself does not make it imperative to interfere with the well reasoned and well discussed judgment of the court below. From the defence version itself, it is evident that the accused persons had sustained injuries prior to the time of occurrence and not in the course of occurrence of the incident in question. The prosecution need not give explanation of the injuries sustained by the accused persons as the defence version that the firearm injuries were sustained by the accused in the course of altercation is neither reasonable nor probable from the circumstances brought on record.
37. In any case, the burden to prove the plea of legitimate exercise of self defence is on the accused persons and in absence of any proof much less cogent one, it is not possible for the Court to presume the truth of the plea of self defence. The legal position is that the Court shall presume the absence of such circumstance and it is for the accused(s) to place necessary material on record either by adducing positive evidence himself or by eliciting necessary facts from the evidence of the witnesses examined for the prosecution to establish his/their plea of the right of private defence.
38. The decisions of the Apex Court relied upon by learned counsel for the appellants do not come to the rescue of the accused persons/appellants rather support the stand of the prosecution that it was not under obligation to explain the injuries sustained by the accused persons.
39. Having heard learned counsels for the parties and perused the record, to appreciate the arguments of learned Advocates for the appellants that the accused persons have a right of self defence and to ascertain the effect of alleged non-explanation of the injuries of accused persons by the prosecution, we would like to first appreciate the prosecution and defence evidences.
40. The prosecution case commenced with the first information report lodged by PW-1 on a written report given by him after approximately two hours of the incident wherein it was stated that four deceased persons were brutally murdered by the accused persons (who were 15 in number). The accused were named in the first information report with the details of the weapons they were carrying. The murder weapons which the accused persons were carrying, as per the description in the first information report and the deposition of the PW-1, are tallying with the injuries sustained by the four deceased persons as is clear from the Medico-legal reports. The Doctors who conducted the postmortem examination of four deceased had proved their reports by entering in the witness box. Nothing material could be pointed out by the learned Senior Advocates for the appellants which would make the injuries of the deceased persons improbable from the weapon assigned to the accused persons. Learned counsel for the appellant, thus, could not dispute the ocular version of the prosecution regarding the homicidal death of the four deceased. In this regard, only submissions of learned Senior Counsel Sri V.P. Srivastava for the appellant in the connected appeal is that only one gun shot wound of entry has been found on the person of deceased Chatrapal Singh and more than one gun shot wounds were found on the person of the deceased Awdhesh Kumar @ Raja Nigam, whereas two other deceased namely Arjun Singh and Mahesh Chandra Shukla did not receive a single gun shot injury. Absence of gun shot injuries to the two deceased persons, who according to prosecution were gheraoed by the accused persons and murdered, is conspicuous and makes the prosecution story improbable to the extent that four deceased persons were cornered by the accused persons carrying firearms and then murdered. In its zeal to rope in all the accused persons in the false case of murder, the prosecution had shown firearms in the hands of the four accused persons. The injuries of the deceased do not correspond to the murder weapons assigned to the accused making the prosecution version unbelievable.
41. Dealing with the above submission, it would be relevant to note that all four deceased sustained at least 12 to 15 injuries which are "incised wound bone deep", "lacerated wound" on their head and forehead, i.e. mostly on the upper and vital parts of their bodies. "Two Gun shot wounds" of the deceased Awdhesh Kumar @ Raja Nigam are deep inside abdomenal cavity and lower part of the right thigh with blackening and tattooing present around both the wounds. "One gun shot wound" with blackening and tattooing around the wound at L-5 level 2 cm from the middle on left side of the back was on the dead body of Chatrapal Singh.
42. A perusal of the above injuries sustained by four deceased shows that they were attacked and brutally beaten in such a manner that they could not escape the scene of occurrence. The prosecution version that four deceased were gheraoed/cornered and then murdered by a group of persons who were carrying deadly weapons cannot, therefore, be said to be inconsistent to the evidence on record.
43. Further, the presence of the accused persons at the scene of occurrence has not been disputed by the learned Senior counsels nor can it be doubted in any manner. Their argument, however, is that none of the accused persons can be pinpointed in commission of murder of four persons, in as much as, three of the accused persons themselves had sustained serious gun shot injuries. The defence version is that four deceased persons had opened fire at the accused persons. Any action on the part of the appellants accused persons, therefore, was only in reaction and they cannot be convicted of the offence of committing homicidal death of four deceased.
44. To appreciate the said argument, we have to assess the probabilities of the defence version sought to be established by production of five defence witnesses (DW-1 to DW-5) to prove the injuries of three accused persons. We would also be required to examine the prosecution evidence to ascertain as to whether the probabilities of the defence version would make the prosecution story doubtful. We would also have to assess the weight of the report of the incident lodged by the Village Peon (prosecution witness PW-8), the written report of Case Crime No.20 of 1990, exhibited as 'Ka-6'. The statement of the investigating officer PW-11 is also relevant to assess as to whether the version of the Village Peon (PW-8) would lean in favour of the defence.
45. As noted above, the prosecution has given its version of the occurrence of incident that seven persons including Chhiddu Singh a resident of Village Kiswahi were attacked while they were sitting leisurely chewing Gutka (Tambaku) in a field near the border of Village Mohar. The place of occurrence of the incident being near the border of Village Mohar is established from the version of the eye witness PW-1 and the investigating officer PW-11 as also from the site plan prepared by him.
46. From a reading of exhibit 'Ka-6', the report lodged by the Village Peon registered as Case Crime No.20 of 1996, it appears to us that he had simply reported the incident of firing which was going on at about 03.00 PM near the border of the Village Mohar and Dhundhpur in discharge of his duties as Village Chowkidar of Villages Mohar and Dhundpur. His report that four persons (unnamed) were firing in the Village cannot be said to be cross version of the defence. The submission of the learned counsel for the appellants that four persons mentioned in the report of the Village Peon were in fact deceased persons as they were not known to the Village Chowkidar is only an assumption. There is no basis or reason to accept the same. Mere fact that the FIR lodged by the eye witness (PW-1) was numbered as Case Crime No. 20-A/90 would not make the report of village Peon a cross case of the defence. There is no inconsistency in the version of PW-1 (eye witness) and PW-11 (the investigating officer) regarding the FIR having been lodged by PW-1 (the eye witness) at about 05.30 PM by submitting a report of the incident in his own handwriting. The investigating officer (PW-11) stated that he went to the scene of occurrence after registration of the FIR by the eye witness (PW-1) and making entry of his movement in the General Diary; the statement of PW-1 was recorded at the place of occurrence but since there was no source of light on the spot, the inquest could commence only in the next morning at the site of occurrence itself. Two injured accused namely Santosh Kumar Mishra and Balram Singh were admitted in the Sadar Hospital, Hamirpur when they were arrested on 15.01.1990 and their statements were recorded. Rifle of one injured accused Balram Singh (in broken condition) was deposited by him in the police station and recovery memo of the same was prepared by the investigating officer. Some of the accused persons had surrendered before the Chief Judicial Magistrate whereas against others, proceedings under Section 82 and 83 Cr.P.C. had to be initiated before they were charge sheeted by the Investigating Officer. The charge sheet (exhibit Ka-'42') against one accused Jhandu Singh was submitted as 'absconder'.
47. The submissions of learned Senior Advocates for the appellants that three injured accused persons were taken to the hospital by the police who reached at the spot of crime after the report of firing was lodged by the Village Peon, is sought to be substantiated from the statement of the defence witnesses namely DW-2 and DW-3. DW-2 is the Doctor who was posted in the District Hospital, Hamirpur on the date of the incident. He states that he examined the accused injured Santosh Kumar Mishra son of Kanahiya Lal Mishra when he was brought to the hospital by the Constable CP-345 Manohar Singh, police station Sumerpur and his injury report was prepared by him. As per the injury report, a gun shot wound of entry 1 cm x 1/2 cm deep was found at the lower side of the abdomen 8 cm towards the left side of the middle and 12 cm from the naval which was kept under observation. No blackening, tattooing or ceasing of hair was present around the wound. The injured was advised X-ray of the abdomen but no supplementary report or X-ray report was entered in the medico legal register. DW-3 is the Doctor who was posted as 'E & T' surgeon in the District Hospital, Hamirpur on the date of the incident. He states that he had examined two injured accused persons namely Balram Singh and Gaya Prasad at about 05.55 PM and 06.15 PM when they were brought to the hospital by a Constable 513 Shiv Ram Singh, police station Sumerpur. The injury report of Balram Singh indicates that his palm was badly injured detaching his thumb and the said injury was caused by the firearm. The injured was admitted in the hospital under observation. Two firearm wounds of entry at the right side of the forehead and neck were found on the person of the injured Gaya Prasad. One firearm wound (abrasion) was present at the left upper arm of the injured Gaya Prasad. However, there is no indication of the time when Santosh Kumar Mishra was taken to the hospital. There is nothing on record to substantiate that three injured persons were taken to the hospital on the instruction of the Investigation Officer from the scene of occurrence, who reached the place as per own version of the defence.
48. Further, from the deposition of defence witness/DW-4, Durga son of Badlu, it is evident that some physical altercation took place at around 11.00 AM to 12.00 Noon in front of the house of the father of two accused persons namely Santosh and Ashok sons of Kanahiya Lal Mishra who was an Ex-Gram Pradhan. A careful reading of the statement of DW-5 Sabhajeet son of Chunubad (one of the accused) shows that the firearm injury to accused Santosh was caused at about 08.00 to 09.00 AM in the altercation which took place near his house in the Village Mohar, Police Station Sumerpur. In his cross examination, DW-5 states that in the incident of firing which occurred at around 08.00 to 09.00 AM, accused Santosh got injured in his stomach. The said altercation took place on a petty dispute of plucking of fresh coriander (Dhaniya) from the field of DW-4 Durga Chamar. This fact is also evident from the deposition of DW-4. Thus, as per own version of defence witnesses DW-4 and DW-5, two separate incidents had occurred one after the other in the morning on 11.01.1990; first at around 08.00-09.00 AM and second before noon between 11.00 AM to 12.00 hours, during which some injuries were caused to accused Santosh Kumar Mishra. DW-5 had categorically stated that injured Santosh Kumar Mishra was not taken to the hospital when he got injured in the incident of Maar Peet occurred before Noon but the said incident was reported to the police through the Village Peon Ram Babu on the instruction of the villagers. DW-5 further states that he did not witness the last incident of fighting (Muthbhed) which occurred in the evening at around 03.30 to 04.00 PM.
49. Further, from the version of DW-4 & 5, it can only be gathered that some altercation and incident of Maarpeet took place near the house of accused Ashok Kumar and Santosh Kumar Mishra before Noon. The presence of Chhiddu Singh, the resident of the Village Kiswahi alongwith four deceased persons at the time of the said incident though has been narrated in the statements of DW-4 & DW-5 to assert that they were aggressors of the crime, but their testimony in this regard is not consistent.
50. According to version of DW-4, the dispute commenced with the act of Chirportan & Pancha (two accused) of plucking Dhaniya (fresh Coriander) from the field of DW-4 Durga Chamar. When they were stopped by DW-4, they hurled abuses at him. DW-4 then went to the house of Kanahiya Lal Mishra father of the accused Santosh and Ashok to complain. There Chhiddu Singh was called by Chirportan who came with four deceased persons (who were guests in the Village) and they started beating DW-4. When Ashok and Santosh stopped them, they messed up with Ashok and Santosh and shot at them. The fire struck the accused Santosh in his abdomen. DW-5 states that he resides at some distance from the house of Kanahiya Lal Mishra. On hearing Shoor (noise), he went out of his house and witnessed that four accused persons were fighting with Ashok and Santosh and one of them fired at accused Santosh. After villagers intervened, they were separated but four deceased had threatened Ashok and Santosh that they would not spare him.
51. In this whole story of the defence narrated by the DW-4 & DW-5, it is evident that the incident which was reported by Village Chowkidar Ram Babu had occurred before Noon and "Exhibit Ka-6" was not the report of the incident occurred at about 3 P.M. near the border of Village Mohar and Dhundpur. In his report, the Village Chowkidar has not been reported the time of incident. It is vaguely written therein that four accused persons were firing in Village Mohar. The said report, therefore, cannot be said to be a first information report lodged by the defence side to give their version of the incident in question. Heavy reliance placed by the learned Senior Advocates on the said report to assert that the said report probalise defence story of the genesis and occurrence of the incident and four deceased persons being aggressors of the crime, is, thus, misplaced. This apart, the defence version of four deceased attacking accused Ashok and Santosh in front of their house also seem improbable. It is not understandable as to why four outsider who were guests of the Village would attack residents of the Village who were not known to them that too in front of their houses on a petty dispute with a fellow villager. There is no suggestion of any previous enmity of four deceased with Ashok and Santosh whose father was an Ex-Gram Pradhan. The defence story regarding genesis of the incident-in-question does not, therefore, seem to be probable.
52. The reason for the incidents of Maarpeet occurred in the morning though is not clear. But it is clear from the statement of DW-5, the defence witness itself, that the injuries by accused Santosh Kumar Mishra were not sustained at the time of occurrence of the incident in question or in the course of occurrence of incident at around 03.30 PM near the border of Village Mohar, during which four persons were brutally murdered. The injury report of Santosh Kumar Mishra though indicates that the injuries were fresh but the time when he was examined by the doctor DW-2 is conspicuously missing from the deposition of DW-2, who further explained in the examination-in-chief itself that the injuries might have caused eight hours prior to the examination of the injured.
53. The defence has utterly failed to prove that the injuries were sustained by the accused Santosh Kumar Mishra in the same incident. As far as the injuries of other two accused persons namely Balram Singh and Gaya Prasad are concerned, from the mere statement of DW-3 that they were taken to the hospital by a Police Constable namely Shiv Ram Singh of the Police Station Sumerpur, it cannot be accepted that they were injured during the course of altercation. The investigation officer (PW-11) clearly denied having visited the scene of occurrence soon after the report (Exhibit 'Ka-6') was lodged by the Village Chowkidar, though he categorically states that he immediately went to the place of incident after the report was lodged by PW-1 (the first informant). There is no suggestion in the cross-examination of PW-11 that three injured accused persons were taken to the hospital on his instructions being Station House Officer of the police station concerned straightway from the place of incident-in-question.
54. Moreover, the injuries of these two persons are simple in nature and not such so as to give them a right of self defence to commit murder. The Doctor DW-3 who has prepared the injury report stated that those injuries had been caused from a distance and there was probability of such injuries having been caused during an altercation. The injuries of Balram might be the result of bursting of the revolver in his hand. Noticeable is the fact here that Balram had deposited his damaged revolver to the police when he was arrested.
55. Further, from the deposition of DW-1 who proved the entries in the Medico-legal register, it is evident that three injured persons were examined during the same time period. First entry is regarding the injury report of Balram at Serial No.55 in the said register. Whereas, injury reports of Gaya Prasad & Santosh Kumar Mishra were entered at serial No.56, 57; respectively.
56. The legal position relating to non-explanation of injuries of defence and right of private defence has been placed before the Court with the aid of the decisions of the Apex Court as under:-
(i) In Mohar Rai Vs. State of Bihar1, the Apex Court has considered the plea of defence as the accused Mohar Rai sustained injuries in the course of incident and the prosecution did not give any explanation to the said injuries. It was held that the failure of the prosecution to offer any explanation in that regard proved that evidence of the prosecution witness relating to the incident was not true. The injuries of the accused probabilised the plea taken by the appellant that a false case was foistered against the appellant. The Apex Court after considering the evidence led by the prosecution held that:-
"....................We think that the defence of the appellants is highly probabilised by three important circumstances, namely-(i) the same was put forward immediately after the occurrence, (ii) it satisfactorily explains the injuries found on the persons, of the appellants while the prosecution evidence fails to explain those injuries,. and (iii) the prosecution evidence itself shows that Mohar Rai could not have used Ex. III and therefore his version that that weapon was thrust on him is probablised."
The accused was given benefit of doubt therein as non-explanation of injuries to the accused created doubt on the prosecution version.
(ii) In Laxshmi Singh Vs. State of Bihar2 considering the injuries on the person of the accused, it was observed :-
"11...................Having regard to the circumstances of the case there can be no doubt that Dasrath Singh must have received these injuries in the course of the assault, because it has not been suggested or contended that the injuries could be self-inflicted nor it is believable. In these circumstances, therefore, it was the bounden duty of the prosecution to give a reasonable explanation for the injuries sustained by the accused Dasrath Singh in the course of the occurrence. Not only the prosecution has given no explanation, but some of the witnesses have made a clear statement that they did not see any injuries on the person of the accused................."
It was observed that the eye witness could have given details regarding the assault on two deceased and the accused and yet he deliberately suppressed the injuries on the person of the accused and that was the most important circumstance to discredit the entire prosecution case. It was held therein that where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case. It shows that the origin and genesis of the occurrence had been deliberately suppressed which lead to the irresistible conclusion that the prosecution had not come out with a true version of the occurrence. It was held that the courts below had failed to appreciate the ratio of the Apex Court in Mohar Rai1.
The decision in Puran Singh Vs. State of Punjab8 and State of Gujrat Vs. Bai Fatima9 were considered therein to note as under:-
"In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow:
(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.
(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.
(3) It does not affect the prosecution case at all."
It was held that in a murder case, non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inference:-
"(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."
It was further observed:-
"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 prosedition 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 PWs. 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. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima Criminal Appeal No. 67 of 1971 decided on March 19, 1975 : Reported in there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. 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."
(iii) In Mitter Sen Vs. State of U.P10, considering the infirmities in the prosecution witness, the explanation offered by the prosecution to the injuries in the course of occurrence was discarded therein at its face value.
(iv) In Babu Ram & others Vs. State of Punjab11 relying on the principle laid down in Laxshmi Singh2 it was observed in paragraph Nos.18 & 19 as under:-
18. It is a well-settled law 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. [See Lakshmi Singh v. State of Bihar; AIR 1976 SC 2263]
19. Further, it is important to point out that 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."
(v) In Amarjit Singh Vs. State of Haryana 2010 (6) SCC 649,4 the principles laid down in Laxshmi Singh2 (supra) have been followed to hold that the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the defence gives a version which competes in probability with that of the prosecution one or where the evidence consists of interest or inimical witnesses.
(vi) In V. Subramani & another Vs. State of Tamil Nadu6, the principles with regard to the exercise of right of private defence has been considered by the Apex Court in the following words:-
"11.Only question which needs to be considered is the alleged exercise of right of private defence. Section 96, IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The Section does not define the expression `right of private defence'. It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. In a given case the Court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872 (in short `the Evidence Act'), the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the Court to presume the truth of the plea of self-defence. The Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not necessarily required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. (See Munshi Ram and Ors. v. Delhi Administration, AIR (1968) SC 702), State of Gujarat v. Bai Fatima, AIR (1975) SC 1478, State of U.P. v. Mohd. Musheer Khan, AIR (1977) SC 2226 and Mohinder Pal Jolly v. State of Punjab, AIR (1979) SC 577. Sections 100 to 101 define the extent of the right of private defence of body. If a person has a right of private defence of body under Section 97, that right extends under Section 100 to causing death if there is reasonable apprehension that death or grievous hurt would be the consequence of the assault. The oft quoted observation of this Court in Salim Zia v. State of U.P., AIR (1979) SC 391), runs as follows:
"It is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of the prosecution witnesses or by adducing defence evidence...."
The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea."
It was further held in paragraph No.12 as under:-
"12. The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilise the version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies 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. [See Lakshmi Singh v. State of Bihar, AIR (1976) SC 2263]. A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 deals with the subject matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property. Section 99 lays down the limits of the right of private defence. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101, IPC define the limit and extent of right of private defence."
(v) In a recent decision in Anand Ramchandera Chougule Vs. Sidaraj Laxman Chougule & others7 it was held in paragraph nos. 10, 11, 12 & 16 as under:-
"10. The burden lies on the prosecution to prove the allegations beyond all reasonable doubt. In contradistinction to the same, the accused has only to create a doubt about the prosecution case and the probability of its defence. An accused is not required to establish or prove his defence beyond all reasonable doubt, unlike the prosecution. If the accused takes a defence, which is not improbable and appears likely, there is material in support of such defence, the accused is not required to prove anything further. The benefit of doubt must follow unless the prosecution is able to prove its case beyond all reasonable doubt.
11. The fact that a defence may not have been taken by an accused under Section 313, Cr.P.C. again cannot absolve the prosecution from proving its case beyond all reasonable doubt. If there are materials which the prosecution is unable to answer, the weakness in the defence taken cannot become the strength of the prosecution to claim that in the circumstances it was not required to prove anything. In Sunil Kundu v. State of Jharkhand , (2013) 4 SCC 422, this Court observed:
"28...When the prosecution is not able to prove its case beyond reasonable doubt it cannot take advantage of the fact that the accused have not been able to probabilise their defence. It is well settled that the prosecution must stand or fall on its own feet. It cannot draw support from the weakness of the case of the accused, if it has not proved its case beyond reasonable doubt."
12. The fact that an F.I.R. was lodged by the accused with regard to the same occurrence, the failure of the police to explain why it was not investigated, coupled with the admitted fact that the accused were also admitted in the hospital for treatment with regard to injuries sustained in the same occurrence, but the injury report was not brought on record and suppressed by the prosecution, creates sufficient doubts which the prosecution has been unable to answer.
16. Dayal Singh (supra) is distinguishable on its own facts as it did not relate to suppression of materials with regard to the accused during the trial in addition to the failure to investigate. A defective investigation shall be completely different from no investigation at all coupled with suppression of the injury report arising out of another F.I.R with regard to the same occurrence."
57. From the careful reading of the above decisions of the Apex Court, the legal position with regard to the effect of non-explanation of injuries of the defence and the legitimate exercise of right of private defence can be culled out as under:-
(i) The injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. The court can draw adverse inference in case of non-explanation of injuries on the body of the accused persons by the prosecution.
(ii) But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. For example, Where 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 creditworthy, that it far outweighs the affect of the omission on the part of the prosecution to explain the injuries.
(iii) In a case where defence version which explains the injuries on the person of the accused is rendered probable, the Court can draw an inference that the prosecution has suppressed the genesis and origin of the occurrence and has, thus, not presented the true version.
(iv) It can also be concluded that the witnesses who has 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.
(v) Thus, the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the defence gives a version which competes in probability with that of the prosecution one.
(vi) The reason being that where the defence has successfully proved that the injuries were sustained by the accused at the time of occurrence or in the course of altercation, it can set up the plea of self defence, i.e. to state that the accused had inflicted injuries on the member of the prosecution party in exercise of the right of self defence.
(vii) However, whether in a particular set of circumstances, a person has legitimately acted in the exercise of the right of private defence is a question of fact which is to be determined on the facts and circumstance of each case. No test in the abstract for determining such a question can be laid down by the Court.
(viii) In determining this question of fact, the Court must consider all the surrounding circumstances. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea.
(ix) It is not necessary for the accused to plead in so many words that he acted in self defence. In a given case, the Court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record.
(x) Under Section 105 of the Indian Evidence Act, the burden of proof is on the accused who sets up the plea of self defence and in the absence of proof, it is not possible for the Court to presume the truth of the plea of self defence. Rather the Court shall presume absence of such circumstance. It is for the accused to place necessary material on record either by adducing positive evidence himself or by eliciting the necessary facts from the witnesses examined for the prosecution. Meaning thereby, an accused taking the plea of right of private defence is not necessarily required to call the evidence; he can establish his plea by reference to the circumstances transpiring from the prosecution evidence itself.
(xi) The question in such a case would be a question on assessing the true affect of the prosecution evidence and not the question of the accused discharging any burden.
(xii) Where the right of private defence is pleaded, the defence must give a reasonable and probable version satisfying the court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused.
(xiii) The burden of establishing the plea of self defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record.
(xiv) Thus, if the accused takes the plea of self defence, he is not required to prove the allegations beyond all reasonable doubt, unlike prosecution. Rather the accused has only to create a doubt about the prosecution case and establish the probability of its defence. If the accused takes a defence which is not improbable and appears likely and there is material in support of such defence, the accused is not required to prove anything further. The benefit of doubt must go to the accused unless the prosecution is able to prove its case beyond all reasonable doubt.
58. In the light of the above legal principles, to summarise the fact of the instant case, it is to be noted that the genesis of the dispute stated by the defence was an altercation which occurred in the earlier part of the day of the occurrence of the incident in question. It is averred that the dispute commenced with plucking of fresh Coriander from the field of Durga Chamar (DW-4) which resulted in the act of beating of two accused Santosh and Ashok in front of their house by the four deceased. As the accused persons had sustained injuries in the course of altercation, the Villagers attacked them in the evening when they were crossing the border of Village Mohar.
59. In this story of the defence, we can see several missing links and the story seems improbable for the reasons:-
(i) DW-4 says that two accused Chirpotan and Pancha (resident of Village Kiswahi) were plucking Dhaniya (fresh Coriander) from his field and when he stopped them, they threw it and hurled abuses at him. He then went to the house of Ramkripal Tiwari and on his advice went to the house of Kanahiya Lal Mishra to complain. He met accused Ashok and Santosh (sons of Kanahiya Lal Mishra) there and two above named persons Chirpotan and Pancha also reached there. Chirpotan called Chhiddu who came with two other armed persons and the altercation between Ashok and Santosh and two deceased ensued.
(ii) In this story, the defence could not explain as to why Chhiddu Singh who had guests in his house would come to the house of Kanahiya Lal Mishra with armed persons to enter in an altercation on a petty dispute of plucking Coriander which was not related to him. This link in the defence story is completely missing. Why would two unknown persons beat DW-4 is not explained.
(iii) As per the defence version, accused- Santosh had sustained injuries in the altercation which occurred in front of the house of Kanahiya Lal Mishra before Noon. It is not explained as to why accused Santosh was not taken to the hospital immediately after he sustained injuries in his abdomen due to fire shot by the deceased.
(iv) No report was lodged by the defence of any of the altercations or incidents occurred during day time in which Santosh had sustained injuries.
(v) DW-5 states that the Village peon was sent by the Villagers to lodge the report to the police when Santosh got injured. However, there is no mention in the report of the Village peon regarding the injuries sustained by Santosh in the firing made by the deceased persons.
(vi) In the report of Village peon (Ex.Ka-6) only this much is mentioned that four unknown persons were fighting with the Villagers and firing was going on.
(vii) There is no suggestion to PW-1, the eye witness or PW-2 Chhiddu Singh of any previous incident having occurred during the day time wherein accused Santosh sustained injuries as per own version of the defence witnesses. The defence has no explanation of these missing links in their story.
(viii) Three accused Santosh, Balram and Gaya Prasad in their statement under Section 313 Cr.P.C. though averred that the injuries on their person were caused by the deceased and, thereafter, Villagers had attacked them but none of the above accused persons had given any indication of any altercation occurred during the day time. The version of the defence about the genesis or origin of the incident, therefore, does not appear to be true.
The defence, thus, has not been able to explain or probalise their version that three accused persons had sustained injuries at the time of occurrence or in the course of incident, which occurred at around 03.30 PM near the border of Village Mohar in which four persons were brutally murdered.
It is not possible for the Court to link the injuries sustained by the accused persons on its own with the incident-in-question or assume to have been caused on account of any overt act of the deceased persons. Nothing could be elicited from the deposition of the prosecution witnesses or other prosecution evidence which would probalise the defence version or improbalise the prosecution case.
(ix) As far as the report of Village peon is concerned, as observed herein above, in our opinion at the best the said report could only be considered as an information of the incident by the PW-8 in discharge of his duties as Village peon. From the statement of PW-6, Head Moharrir, it is evident that the said report was lodged at about 16.40 hours on the oral statement of Village peon to him. A copy of the said report is exhibited as 'Exhibit Ka-6' by the Village peon who was examined as PW-8. There is no Chick report of the said information. The Head Moharir (PW-6) who stated to have lodged the said report (Ex.Ka-6) has not proved the said document nor has proved any chick report in that regard. By the mere fact that the said report was stated to have been lodged prior in point of time, it cannot be treated as a cross version or cross FIR of the defence. Moreover, from the own version of the defence witness (DW-5), it appears that the said report was lodged by the Village peon on the instruction of accused persons Santosh and Ashok.
Heavy reliance placed by the learned counsel for the appellant on the written report exhibited as 'Exhibit Ka-6' to assert it as a cross version of the defence to exercise their right of private defence is, thus, found misplaced. Adding to the above, pertinent is to note that the investigating officer had shown ignorance about having any information of the report exhibited as 'Exhibit Ka-6' being lodged prior in point of time to the incident reported by PW-1 or in his presence. Mere registering the report of PW-1 as Case Crime No.20-A of 1999 would not be sufficient to treat it a cross-case.
60. From the above discussion, it is difficult to accept that three accused persons were attacked by four deceased before they were cornered and brutally murdered near the boundaries of Village Mohar. From the circumstances brought by the defence and the prosecution evidence, it is not established that deceased were aggressors of the crime.
61. All the aforesaid circumstances brought to the notice of the Court by the defence would neither probabilise the defence story nor provide the accused to legitimately exercise a right of private defence. The defence story of genesis of the incident does not seem to be more probable so as to demolish the whole prosecution case being improbable or false. As the injuries of the accused persons did not occur in the course of the incident-in-question, the prosecution was not required to explain the said injuries.
62. Now the only question remains is to assess the weight of the prosecution evidence to see as to whether the prosecution has succeeded in proving its case beyond all reasonable doubts.
63. From a threadbare discussion of the prosecution evidence as above we find that:-
(i) The first information report is prompt having been lodged within two hours of the incident-in-question.
(ii) PW-1 lodged the first information report by giving a report in his own handwriting which was proved by him as 'Exhibit Ka-3'. The said report contains a graphic description of the accused with weapons in their hands and the manner in which the four deceased were murdered as also the place of occurrence.
(iii) PW-1 categorically stated that he was accompanying the deceased persons with two others named as Chhiddu Singh and Sahab Singh.
(iv) His version that accused Santosh exhorted other accused persons who came in a group to attack all of them saying "और अशोक व संतोष के ललकारने पर महेश साला मिल गया है, इन लोगो के बल पर बचा है मारो सालो को, जाने न पाए" and that the accused persons opened fire; four deceased persons were chased and gheraoed by them and cornered near the boundaries of the field and murdered. Their bodies were lying in a 'Gaddha' between Bandhi, in the first information report itself is corroborated from his oral deposition as also the site plan prepared by the police who reached the spot soon after lodging of the first information report.
(v) There is no inconsistency in the oral testimony of PW-1, the medical evidence and the testimony of the Investigating Officer (PW-11) as also the reports such as inquest site plan prepared by him, with regard to the injuries of the deceased and the place of occurrence The medical evidence fully corroborates with the evidence of eye witness (PW-1) with regard to the injuries sustained by the deceased.
(vi) PW-2 Chhiddu Singh though turned hostile but his narration of the incident in his examination-in-chief is same and supports the ocular testimony of PW-1. His version with the prosecution story, when read as a whole, does not demolish the prosecution case rather supports the prosecution version of PW-1 being eye witness of the incident. His deposition though has some twist and turns and he had been declared hostile for that reason by the prosecution but his testimony as a whole cannot be discarded.
(vii) Presence of PW-1 or he being an eye witness is being disputed by the appellants on the ground that:-
(a) Firstly, that he left the place of incident in the morning at about 09.00 AM to attend his duties in the school where he was a teacher, even before inquest of his nephew was commenced. The said act of PW-1 is highly inconceivable and disproves his present at the scene of occurrence.
(b) Secondly, PW-1 states that on 12.01.1990, the investigating officer first prepared the site plan and then inquest had commenced. The first inquest proved to have commenced at about 07.00 AM and completed at 09.00 AM. As per version of PW-1, he immediately left the scene of occurrence to attend his school duties. On the other hand, the Investigating Officer stated that he prepared the site plan in the presence of PW-1 (the first informant) after inquest was completed and soon after reaching the place of occurrence statement of PW-1 was recorded. The statement was recorded at about 06.15 A.M. There was, thus, no time left for preparation of the site plan. One of the two witnesses, therefore, is making false statement.
64. As far as the above arguments are concerned, we may note that the PW-1 categorically states that he left the place of occurrence after his statement under Section 161 Cr.P.C. was recorded. He remained at the place of incident for the whole night. The first inquest of the deceased Chatrapal commenced at about 07.00 A.M. and his statement was recorded before that about 06.15 A.M. By that time, site plan was not prepared as there was dark. Then he says that he was not aware as to when site plan was prepared but it was prepared prior to the inquest. This statement of PW-1 in cross-examination even if found in contradiction to his own statement about the time of inquest and preparation of the site plan and with the statement of the Investigating Officer (PW-11), but this by itself cannot be said to be material contradiction which would go to the root of the matter.
Minor contradictions in the statement of witnesses are bound to occur because of the time gap between the incident and recording of their testimony. It cannot be said to be a serious infirmity which would prove fatal to the prosecution case.
65. Further the act of PW-1 leaving the place of incident at about 09.00 AM after his statement under Section 161 Cr.P.C. was recorded and the site plan was prepared, cannot be put to scrutiny being improbable or inconceivable so as to rule out his presence at the scene of occurrence.
66. This witness categorically states that his relative Santosh Singh and his brother Gulab Singh (father of deceased Arjun Singh) had reached at the spot of occurrence before he left to attend his duties. He also states that his relative Suresh Singh dropped him to the school on his motorcycle. When he left, Chhiddu Singh was present at the scene of occurrence.
67. Thus, having carefully appreciated the testimony of PW-1 and other prosecution evidences, it is not possible for us to doubt his version or narration of the incident or his version of being eye witness and the person who gave first information of the crime promptly to the police.
68. Apart from the above, nothing could be placed from the prosecution evidence which would create any dent or doubt in the prosecution story.
69. On many occasions, the Apex Court has laid down that a conviction can be based on the evidence of a solitary eye witness if his version is reliable and trustworthy. In Veer Singh Vs. State of U.P.12, State of U.P. Vs. Satveer Singh13 and Sudip Kumar Sen Vs. State of West Bengal14, the Apex Court has held that it is the quality of evidence and not quantity which matters in a criminal trial. Section 134 of the Evidence Act does not prescribe a particular number of witnesses to prove any act. Plurality of witnesses in a criminal trial is not the legislative intent. If the testimony of the single witness is found reliable on the touchstone of credibility, accused can be convicted on the basis of the said testimony.
70. The number of the accused persons was 15 and they came together with deadly weapon and made an unlawful assembly with the common object to cause death of the deceased persons and, in fact, in prosecution of the common object, they caused death by the deadly weapons they were carrying. Therefore, by virtue of being a member of the unlawful assembly, all the accused appellants are equally liable for causing murder of four persons.
71. So far as the alleged right of private defence is concerned, the same has not been established. The injuries sustained by the accused side appears to have been sustained much prior to the incident in hand and such that they had to take recourse to public authorities as they had time to do so. Our view is substantiated by the judgement of the Apex Court in Dinesh Singh Vs. State of U.P.15. Moreover, four persons have been killed in the incident and as held in Dinesh Singh15 right of self defence cannot be permitted to be used as retribution.
72. Having carefully appreciated all the arguments made by the learned Senior Advocates for the appellants and the prosecution evidence, we find that the prosecution has proved its version beyond all reasonable doubts. The defence, on the other hand, though took a plea of exercise of right of self defence but has utterly failed to discharge the initial burden laid on it to probalise its story or create dent or doubt on the prosecution story. The presence of accused persons at the scene of occurrence is neither disputed nor can be doubted from any of the circumstances brought before the Court. It is proved by the prosecution that all accused persons in a pre-mediated manner formed an unlawful assembly in prosecution of the common object of such assembly and being armed with deadly weapons caused death of four persons by inflicting fatal injuries in a manner that the deceased could not escape the attack.
73. All the appellants/accused persons are, thus, found guilty of the offences under Section 302 read with Sections 149 I.P.C. as also for the offences under Section 147 and 148 IPC. Their conviction under the aforesaid provisions is found justified. The sentences awarded to the accused/appellants for the offences for which they are found guilty are minimum. No infirmity is, therefore, found in the decision of the trial court. The conviction and sentence awarded to each of the accused/appellant is hereby upheld.
74. The accused persons are on bail. Their bail bonds are cancelled and sureties are discharged. They shall surrender forthwith before the concerned court and be taken into custody and sent to jail to serve their sentence.
75. Certify this judgement to the court below immediately for compliance.
76. The compliance report be submitted through the Registrar General, High Court, Allahabad.
77. Both the appeals are, accordingly, dismissed.
(Pradeep Kumar Srivastava,J.) (Sunita Agarwal, J.)
Order Date :- 19.2.2020
Himanshu