Gujarat High Court
Rasikbhai Ramsingh Rana And Anr. vs State Of Gujarat And Ors. on 21 July, 1998
Equivalent citations: 1999CRILJ1975, (1999)1GLR176
JUDGMENT J.N. Bhatt, J.
1. Both these appeals, appeal No. 1042/92 being conviction appeal, at the instance of original accused Nos. 4 and 5 in Sessions Case No. 124/91 whereas, Appeal No. 1281/92 being acquittal appeal against original accused Nos. 1,2 and 3 in the same sessions case, are being disposed of by this common judgment upon joint request and in the circumstances of the case.
2. The appellants in conviction appeal are hereinafter referred to as original accused Nos. 4 and 5 and respondents in acquittal appeal are hereinafter referred to as original accused Nos. 1, 2 and 3, for the sake of convenience and brevity.
3. Conviction of original accused No. 4 out of original five accused persons in Sessions Case No. 124/91 under Section 302, I.P.C. and resultant sentence of R. I. for life and fine of Rs. 1000/- and in default R. I. for one year and conviction under Section 323 against accused No. 5 and sentence of six months S. I. and fine of Rs. 500, in default S. I. for one month and conviction under Section 135 of the Bombay Police Act and resultant sentence of S. I. for four months and fine of Rs. 100/- in default S.I. for 15 days in conviction Appeal No. 1042 of 1992, is challenged by the appellants original accused Nos. 4 and 5; whereas in criminal Appeal No. 1281 of 1992, State has challenged the acquittal of the accused persons of all the charges.
4. A few relevant and material facts of the prosecution case may shortly be articulated at this juncture. According to the prosecution case, on 8-10-1990 at about 2.30 p.m. in the sim of village Vantadi of Matar taluka of Kheda district, all the accused persons had formed an unlawful assembly the common object of which was to commit murder of deceased Dilip Pratapsingh and in pursuance thereof, they had attacked the deceased. Accused No. 1 Ramsing Rana is the father and accused No. 2 Ajit and accused No. 3 Dhirubha, accused No. 4-Rasikbhai and accused No. 5 Ranubha are the sons of accused No. 1. Accused No. 4 Rasikbhai was armed with a Dharia, accused No. 5 Ranubha was armed with a stick.
5. All the accused persons attacked the deceased. Accused No. 1 had given filthy abuses and accused Nos. 2 and 3 had given kick and fist blows to the deceased in pursuance of the common object of the unlawful assembly.
6. The accused persons had enmity and in course of rioting in furtherance of the common object of unlawful assembly, after attacking the deceased, caused grievous injuries, as a result of which, deceased Dilip succumbed to the same on 14-10-1990. It was also alleged by the prosecution that accused No. 4 Rasikbhai and accused No. 5 Ranubha had deadly weapons with them contrary to the notification issued by the District Magistrate under the Bombay Police Act.
7. As alleged by the prosecution, accused No. 1 Ramsingh gave filthy abuses to the deceased and accused Nos. 2 and 3 gave fist and kick blows on the person of the deceased. Accused No. 4 Rasikbhai who was armed with dharia inflicted a blow with blunt portion of the dharia on the head of Dilip and accused No. 5 Ranubha had inflicted stick blow on the back portion of the deceased.
8. Deceased Dilip had sustained serious injuries and he had become unconscious. He was shifted to Kheda Civil Hospital for treatment in a Matador. The complainant-father of the deceased went to Matar Police Station and lodged a complaint as he was one of the eyewitnesses. The complaint is produced at Ex. 19.
9. Since injuries were serious and the deceased was sinking, he was shifted to V.S. Hospital, at Ahmedabad, for further treatment. He was also operated by Dr. B. N. Deasi who is a neuro surgeon in his private nursing home. However, unfortunately, the deceased could not survive and succumbed to the injuries sustained by him in the early hours of night or morning between 14-10-1990 and 15-10-1990.
10. Post-mortem was performed and the cause of death as per the medical evidence was due to shock following intracranial haemorrhage and damage to the vital centers. Accused No. 5 who had sustained injuries was also examined by the Medical Officer of Civil Hospital, Kheda and he was found to have sustained three injuries. He was also shifted to V.S. Hospital for further treatment.
11. Upon strength of the complaint lodged by the father of the deceased, investigation was carried out and charge sheet came to be filed. The accused persons, therefore, came to be charged in sessions case No. 124 of 1991 by the learned Additional Sessions Judge, Kheda at Nadiad on 13-3-1992. The. accused persons were charged for having committed offences punishable under Sections 143, 147, 148, 302, 323 and 504, read with Section 149, IPC. Accused Nos. 4 and 5 were also charged for having committed offence under Section 135 of the Bombay Police Act.
12. Upon appraisal and evaluation of evidence often prosecution witnesses and the appreciation of documentary evidence, the trial Court convicted accused No. 4 for the offence punishable under Section 302 and accused No. 5 for the offence under Section 323. Accused No. 4 was also convicted for the offence under Section 135 of the Bombay Police Act but no separate sentence was imposed against him. He was given benefit of doubt from other offences; whereas, accused No. 5 was found guilty for offence punishable under Section 323, IPC and Section 135 of the Bombay Police Act and came to be sentenced as above. He was also acquitted of other charges by giving benefit of doubt. Rest of the accused came to be acquitted of all the charges as they were also accorded benefit of doubt by the impugned judgment recorded on 8-9-1992 which is directly under challenge before us in these two appeals.
13. Learned advocate for the accused and the learned Additional Public Prosecutor have taken us through testimonial collections, in course of the submissions before us. We have also examined, dispassionately the entire record and proceedings. Reliance is also placed on the case law to which reference will be made as and when required.
14. Insofar as acquittal appeal under Section 374 of the Code is concerned, it may be stated at this stage that powers of this Court are circumscribed to an extent. It is a settled proposition of law that the appellate Court cannot interfere with the finding of the trial Court even if the appellate Court comes to the conclusion that a different view is possible. In other words, if the view taken by the trial Court is possible and plausible, the mere fact that this Court can take a different view upon assessment and appraisal of the evidence, would not be sufficient for interference in exercise of powers under Section 378. In order to succeed in acquittal appeal, prosecution is obliged to satisfy the appellate Court that the impugned judgment and order is-
(i) illegal, or
(ii) perverse, or
(iii) suffers from the vice of misreading of evidence, or
(iv) is tainted with non-application of mind or
(v) material legal proposition is not considered as a result of which miscarriage of justice has resulted.
15. After having heard both the sides, we have not been able to agree with the prosecution that the view taken by the trial Court in acquitting the accused persons of the charges under Sections 143, 147, 148, 302, 323 and 504 read with Section 149, IPC which is quite reasonable and acceptable. We are satisfied that the order of acquittal giving benefit of doubt to the accused persons of the said charges is quite justified.
16. It may be noted at this stage that there were cross -complaints and cross-sessions cases against both the parties. The accused party before us in these two appeals had filed a complaint on the basis of which sessions case was conducted against the complainant party in this case which culminated into acquittal of the accused persons and the acquittal has not been questioned.
17. Thus, cross-sessions case No. 188/91 resulted into acquittal by the judgment of the trial Court which has become final. There is no dispute about the fact that in sessions case No. 188/91, six accused persons were charged of offences punishable under Sections 326, 147, 148, 149 of IPC which by judicial verdict came to be resulted into acquittal of all the accused persons of the said charges and the State has acquiesced in the acquittal.
18. The learned advocate for the accused persons in support of the appeal challenging the conviction has raised the following questions:
(i) that the evidence of prosecution is not consistent, trustworthy and reliable to prove the guilt of the appellants-accused Nos. 4 and 5 beyond reasonable doubt;
(ii) that the prosecution has failed to explain the injuries sustained by accused No. 5 which are serious in nature and, therefore, gist and genesis of the prosecution case is not correctly disclosed..
(iii) that in the alternative, the trial Court ought to have accepted the plea of right of self-defence in view of the grievous nature of injuries sustained by the original accused No. 5 Ranubha.
19. The aforesaid contentions are countenanced and repelled by the learned Additional Public Prosecutor who has fully supported the impugned judgment of conviction and resultant sentence.
20. Needless to mention at this stage that irrespective of plea of defence, it is incumbent upon the prosecution to establish the complicity; of the accused persons beyond reasonable doubt. Therefore, it becomes essential at this juncture to consider whether the ultimate conclusion of the trial Court in holding accused No. 4-Rasikbhai who allegedly gave a blow with blunt portion of dharia on the head of deceased Dilip is guilty for offence punishable under Section 302 and conviction of original accused No. 5 for offence punishable under Section 323, is justified or not. The challenge against the conviction recorded by the trial Court in the impugned judgment is that there is no consistent, reliable and dependable evidence to transfix the culpability of accused Nos. 3 and 5. Therefore, accused Nos. 4 and 5 also should have been acquitted.
21. In order to appreciate the first contention and the challenge against it, the following few facts and aspects which have remained unshaken may be articulated :
(i) the accused and the complainant parties have adjoining fields in the sim of Vantadi and they are residents of the same village.
(ii) both the parties are distantly related to each other;
(iii) there was serious enmity between the two groups on account of land dispute including the border dispute (Sedha dispute);
(iv) the incident in question which resulted into loss of life of young man Dilip on account of vital blow of dharia on the head was preceded by hot exchange of words in the morning part of the day.
(v) accused No. 5 Ranubha, son of accused No. 1, had also sustained injuries;
(vi) deceased Dilip had become unconscious on account of severe blunt portion blow of dharia on his head till he succumbed to the same on the night between 14-10-1990 and 15-10-1990;
(vii) accused No. 1 Ramsingh is admittedly the first cousin of father of the deceased Pratapsingh who are neighbours in fields.
(viii) the complaint was filed by the father of the deceased at about 7.30 p.m. whereas the incident occurred at 2.30 p.m. on 8-10-1990, at Matar-taluka police station which was followed by cross-complaint by the accused party.
(ix) accused No. 5 Ranubha was injured, whereas the other party lost one member of the family Dilip on account of vital blow with blunt portion of dharia on his head;
(x) cross-sessions Case No. 188/91 has resulted into acquittal of all the accused persons and acquittal judgment has not been challenged by the State;
22. Prosecution's main witness No. 1 complainant Pratapsingh examined at Ex. 18 has clearly, testified in his evidence that on 8-10-1990 his son Dilip had gone to the field of Keshubha Chhatrasingh, at village Vantadi, along with tractor for removal of crop of Bajra. Thereafter, Dilip went to their own field on the same day and he found bullocks of the accused party damaging the standing crop near the boundary. He asked accused No. 4 Rasik and accused No. 5 Ranubha to take action and take out bullocks from their field so as to prevent damage to the standing crop.
23. It is also clear from his evidence that at that time, accused No. 4 Rasik retorted saying Dilip that 'the land did not belong to his father'. The deceased, therefore, came home and informed his father.
24. Thereafter, at about 2 p.m. the complainant Pratapsingh and his son proceeded to their field for harvesting remaining standing crop of Bajra in their field adjoining to the field of the accused party. The tractor was kept at village Vantadi and thereafter all were walking and en-route, they found the accused persons sitting near newly constructed mosque. It is very clear from his evidence that at that time, the complainant and his son Dilip, when they were passing for going to their field, accused No. 4 inflicted dharia blow on the head of Dilip as a result of which, he fell down and thereafter accused No. .5 inflicted stick blow on the left back portion of the body. It also becomes explicit from his testimony that in order to save and ward off the assault, the complainant snatched away dharia from the hand of accused No. 4 as he also wanted to save Dilip from being inflicted at the hands of Ranubha, accused No. 5, with stick. After snatching dharia, the complainant pushed back accused No. 5-Ranubha. He had lodged the complaint. He had also taken his injured son who had become unconscious on account of blow on the head with blunt portion of dharia. The incident, according to him, had also occurred in the presence of Khodabhai Lakhabhai and Alubha Rajabhai.
25. The evidence of the complainant on the main core of the prosecution case has remained unimpeachable despite lengthy and searching cross-examination. Attempt to take help and then to make capital out of some inconsistent and minor contradictors to discredit testimony of this witness has ended in smoke. No doubt, he is the father of the deceased Dilip and he would be interested in seeing that the real culprit is brought to book. Merely because he is an interested witness, his evidence cannot be rejected. It is not the interestedness but the intrinsic trustworthiness of the evidence which matters in evaluation and assessment of evidence. The trial Court therefore, has, in our opinion, rightly relied on the evidence of this witness.
26. The evidence of this witness is clearly reinforced by the medical evidence of Dr. Yogesh Parikh, P.W.2, Ex. 20. It is found from his testimony that he was working as medical officer in Civil Hospital at Kheda at the relevant time on 8-10-1990 and he had examined Dilip at about 3.10 p.m. It means that the doctor examined the injured who was unconscious, within a spell of 40 minutes in his hospital. The incident occurred in the sim of village Vantadi, whereas examination by this doctor was done in the civil hospital at Kheda.
27. Dr. Parikh found the following injuries on the person of injured Dilip :
1. CLW over (R) occipital region; 6 x 0.5 C. M. bone deep. Bleeding present.
2. CLW over outer angle of (R) eye 0.5 x 0.5 cm. bleeding present.
3. abrasion over (R) trochanteric region.
28. He has also testified that injuries Nos. 1 and 2 were possible by blunt portion of dharia and injury No. 1 was sufficient in the ordinary course of nature to cause death. Medical certificate is produced at Ex. 22 along with X-ray plate. The evidence of the doctor supports the testimony of eye-witness complainant-Pratapsingh. Merely because at one point of time in the cross-examination, he has stated that injury No. 1 cannot be said to be sufficient in the ordinary course of nature to cause death, divorcing from the context of his statement, cannot be allowed to discredit the evidence of the medical officer. The aforesaid statement was made by him in the context that without reaching a finding as to the nature of internal injury, he may not be able to say as to whether injury No. 1 on the head of the deceased can invariably be said to be sufficient in the ordinary course of nature to cause death. Therefore, defence is not in a position to make any capital out of such admission which is neither material contradiction nor inconsistent with the version. He has also clearly stated in his evidence that injury ,No. 1 can be possible by infliction of stick blow. Much reliance is placed on this by the defence which, in light of the totality of the evidence, we find not inconsistent which would affect the main substratum of the prosecution case. In short, evidence of Dr. Parikh fully supports the version of complainant and the prosecution case. Dr. Parikh also examined accused No. 5 Ranubha who had sustained the following injuries :
1. 2.5 cm. x 1 cm x 4 cm bone deep stab wound over lateral aspect of right lower chest. Air bubbles coming out with subcutaneous surgical emphysema-bleeding present.
2. CLW over right arm L/3 anterior aspect 2 x 0.5 cm.
3. Cut wound over left hand 1st Web space 1 x 0.5 cm. bleeding present.
29. It is true that in cross-examination, the doctor has stated that injury was possible by a sharp cutting instrument like knife and it was grievous one.
30. The evidence of the complainant is also fully supported by the evidence of P.W. No. 3 Alubha, Ex. 25. He is an eye witness and it becomes very clear that accused No. 4 had given blunt portion of dharia blow on the head portion of the deceased from behind, as a result of which, the deceased fell down and thereafter accused No. 5 inflicted stick blow on the back portion of the deceased. It is also clearly testified by him that the complainant apprehending that Dilip will be killed, snatched away the dharia from accused No. 4 and in process of pushing back accused No. 4 who was armed with dharia, accused No. 5 was injured because of sharp cutting portion of dharia. Thus, accused No. 5 had sustained injuries in the process of warding off the assault and after snatching the crime weapon dharia produced at Article 10 from the hand of accused No. 4. It cannot be said that prosecution has not been able to explain the injuries sustained by accused No. 5. Thus, the evidence of the complainant is fully supported by the evidence of prosecution witness Alubha, who is an eye witness. Nothing has been successfully shown from his testimony which would even remotely indicate on the veracity of his evidence. On the contrary, after having read his testimony who is a rustic independent witness, unvarnished truth has come out.
31. P.W. No. 4 Dr. Madhurika Sunderjibhai is examined at Ex. 26 who had conducted autopsy on 15-10-1990 at 7.20 p.m. in V.S. Hospital, Ahmedabad. She found the following external injuries in course of post-mortem examination :
1. CLW one half x one half cm. at lateral angle of right eye.
2. abrasion of 4 x 1 cm. on right thigh laterally.
3. an abrasion, incision over left temporal region and stitches taken thereon.
4. a sutured wound present vertically on occipital region in middle part with 5 stitches present on it.
5. a hole of 3 x 2 cm. size at vault of skull on left temporal region and brain tissues shown from it.
6. abrasion of 1 x 1 cm. on left side of chest.
32. She also found the following internal injuries in course of post-mortem examination.
1. a hole of 3 x 2 cm. in size at value at skull in left temporal region and brain tissues seen from it.
2. fracture at vaunt of skull as shown in diagram with diameter.
3. a linear fracture 7 cm. in size on right temporal region.
4. diffuse blood and blood clots present all over cerebrum.
5. on left temporal region, brain tissue ruptured and big blood clots present.
33. It is clearly testified by her in her evidence that death of Dilipbhai was due to shock following intranial haemorrhage and damage to vital centres. P. M. note is produced at Ex. 28.
34. Next prosecution witness is Dr. B. N. Desai, P.W. 5 who is examined at Ex. 29. He was working as neuro surgeon since 14 years prior to his examination of the deceased. His evidence also fully supports the oral evidence of the complainant and eye witness Aubha. It is also very clear from his evidence that he had also examined and given treatment to the deceased when he was in unconscious condition at V.S. Hospital as he was attached as Honorary Neuro surgeon. He stated in his evidence that the injuries sustained by the deceased on the head was vital and it was possible by blunt portion of the dharia. It is also clearly testified by him that the injuries sustained by Dilip on the head on account of blunt portion of dharia was sufficient in the ordinary course of nature to cause death. The medical certificate is produced at Ex. 31. Medical case papers along with X-ray plate were produced at Ex. 34.
35. At this stage, it may be mentioned that ACT scan examination was also carried out. The said report is produced, at Ex. 45. It also fully supports the case of the prosecution.
36. P.W. No. 6-Khodabhai Lakhabhai is examined at Ex. 37. He was working as an agricultural labourer of complainant Pratpsingh. He is an eye witness and he has fully supported the prosecution case and the testimony of the complainant. It is very clear from his testimony that accused No. 4 inflicted blunt portion of dharia on the head of the deceased as a result of which, the deceased fell down and became unconscious and thereafter, accused No. 5 inflicted a stick blow.
37. Upon total assessment, analysis and evaluation of the prosecution evidence, we have no hesitation in finding that the trial Court has rightly held original accused No. 4 Rasik guilty for the offence punishable under Section 302 and original accused No. 5 Ranubha guilty for the offence punishable under Section 323, IPC and Section 135 of the Bombay Police Act in view of the clear, coherent, consistent, trustworthy and dependable evidence of the prosecution. The first contention, therefore, raised on behalf of the defence must fail.
38. Since two other points canvassed before us on behalf of the defence appellants in conviction appeal are interconnected and interwoven in view of nature of evidence before us, it would be expedient to deal with and decide those points pari pasu and simultaneously.
39. The second contention is that the prosecution has not been bale to explain the injuries sustained by accused No. 5 which cast shadow of doubt of the veracity of the prosecution case as contended on behalf of the accused. The third contention is that the injuries caused to the deceased Dilip was in exercise of right of private defence by accused No. 5. Relying on these two aspects, it was vehemently contended that the accused persons are entitled to be acquitted. In support of these two contentions, various decisions are also relied on by the learned advocate for the accused, appellants in the conviction appeal.
40. We would, therefore, like to examine the case-law relied on by the defence :
CASE LAW.
41. In Ram Narain v. State of Punjab AIR 1975 SC 1727 : 1975 Cri LJ 1500 it has been held that where the injuries ante caused by lethal weapon and the prosecution case is inconsistent, the accused persons are entitled to acquittal. The observations in paras 13 and 14 are relied on. We have gone through those observations. The principle enunciated in the said decision is that in case of total inconsistency between the evidence of witnesses and the medical evidence or the evidence ballistic expert, it would tantamount to fundamental defect and the benefit of doubt has to be given to the accused.
42. Reliance is placed on a decision in Mayur Punabhai v. State of Gujarat AIR 1983 SC 66 : 1982 Cri LJ 1972 particularly, with a view to impress upon us that evidence of medical officer should invariably be accepted as our Courts have always taken doctor's evidence as truth in light of the facts of the said case and particularly when medical evidence was summarily rejected. It would be interesting to note that it is on the contrary observed that the learned single Judge was not right in observing that our Courts have always taken doctor's evidence as true. Not only that it has been clearly expounded that even where doctor is examined in Court, his evidence has got to be appreciated like evidence of any other witness and there would not be irrebuttable presumption that doctor is always a witness of truth. This question also would not assume any much significance in the present case since the evidence of the medical officer is found quite reliable upon judicial scrutiny.
43. Relying on the decision in State of Bihar v. Mohammad Khursheed 1971 (3) SCC 423 : 1971 Cri LJ 1555 it has been contended that conviction cannot be sustained when the origin of assault is not truthfully stated by the prosecution. In other words, where there is doubt about the origin of the case or controversy, the benefit should go to the accused. This proposition can hardly be countenanced. The genesis and gist of prosecution case is succinctly borne out from the evidence of the complainant and supported by two eye witnesses and the doctor. Therefore, no capital could be made out of this decision.
44. Next reliance is placed on the decision In Jamuna Choudhary v. State of Bihar (1974) 3 SCC 774 : 1974 Cri LJ 890. It is held in this case that duty of investigating officer is not merely to bolster up a prosecution case with such evidence as may enable the Court to record a conviction but to bring out the real unvarnished truth. Again when both the prosecution and defence are not coming up with true version, the duty of the Court assume wider significance. When neither the prosecution nor the defence, has in the case, come out with the whole and unvarnished truth so as to enable the Court to Judge where the rights and wrongs of the whole incident or set of incidents lay or how one or more incidents took place in which so many persons were injured. The Courts can only try to guess or conjecture to decipher the truth if possible. This may be done within limits to determine whether any reasonable doubt emerges on any point under consideration from proved facts and circumstances of the case. This proposition of law is also very well expounded and exhaustively exploited. This decision does not take the version of defence any further as in our opinion, the origin of the story is successfully deposed and correctly brought on record.
45. Again, reliance is placed on decision of the Honourable Apex Court in Lakshmi Singh v. State of Bihar AIR 1976 SC 2263 : 1976 Cri LJ 1736, No doubt, this is an important decision on the vital issue on non-explanation of the injuries sustained by the accused. This decision is also relied on by the Division Bench in the decision of this Court later on, which is also cited before us. The proposition laid down in this decision is in para 11 of the decision. The principles enunciated in the case of Bai Fatima AIR 1975 SC 1478 are relied on. The observations made in Bai Fatima's case are also followed.
46. The following observations in Laxmi Singh's case are quoted from the decision of Bai Fatima:
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 :
(i) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self-defence;
(ii) 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;
(iii) It does not affect the prosecution case at all.
The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case.
It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences :
(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused, it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.
Laxmi Singh's case 1976 Cri LJ 1736 (supra) is followed by this Court in Division Bench decision in Chhana Ganda v. State of Gujarat XXXX ( )GLR 62 (sic).
47. It would be very interesting to mention at this stage that in Laxmi Singh's case 1976 Cri LJ 1736 (supra), the Honourable Apex Court has clearly further observed, relying upon the observations made by the Honourable Apex Court in Bai Fatima' s case (supra) that there may be cases where non-explanation of 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 creditworthy, that it far out weighs the effect of the omission on the part of the prosecution to explain the injuries.
It, therefore, becomes crystal clear that mere non-explanation of injuries on the person of the accused by the prosecution ipso facto in all cases diverse from, the factual context irrespective of strength of evidence of prosecution, cannot be characterised as not representing truthful version or not giving gist and genesis of the case. It, therefore, becomes clear that the prosecution is obliged to explain the injuries sustained by the accused (i) if it is not superficial or trivial in nature and (ii) if it has occurred in course of the incident although the origin and genesis of the prosecution may not remain oblivious or under cloud of doubt. Ordinarily, if it is not explained, the benefit has to be given to the accused. However, there may be cases wherein though injuries sustained by the accused has remained unexplained, for variety of reasons, but the evidence of prosecution is clear, coherent, convincing and radiating an imprint of truth without any doubt, non-explanation on the part of the prosecution would pale into insignificance.
48. It, therefore, becomes obvious that if injuries on the person of accused have remained unexplained, ordinarily, genesis or origin of the incident or prosecution version may remain under cloud of suspicion or doubt. It is, therefore, incumbent upon the prosecution to show and explain the nature of injuries sustained by the accused. However, there may be cases wherein evidence of prosecution is so strong and weighty, clear and cogent, independent and inspiring the confidence, consistent and creditworthy. In that case, even non-explanation of injuries sustained by the accused would obviously far outweigh the evaluation or effect of the omission on the part of the prosecution to explain the injuries sustained by the accused. Therefore, the contention that once injuries sustained by the accused remain unexplained, the Court should embark upon doubting the prosecution version in all cases irrespective of strength and creditworthiness of the prosecution evidence on record, is running counter to the proposition expounded in the aforesaid decision.
49. No doubt, in the present case, the injuries sustained by accused No. 5 have been explained by the prosecution. Therefore, there is no question even of non-explanation of the injuries on the person of accused No. 5, in the prosecution case. P.W. No. 1-complainant Pratapsingh and P.W. 2 Alubha, Ex. 25 who is an eye witness and who is an independent witness, both have clearly testified as to how and in what manner the injuries came to be sustained by accused No. 5 in course of the incident. The explanation of the prosecution witnesses is that injuries sustained by accused No. 5 were because of the sharp curve portion of the dharia which came to be snatched away by the complainant in order to save his son from being killed who was already inflicted a dharia blow on his vital part of the head and who was also inflicted a stick blow after snatching muddamal Article 10 from accused No. 4. The complainant tried to ward off the said blow and in that process, pushed back accused No. 5 who in turn, caused injuries with curve-pointed front portion of dharia. The evidence of the complainant and eye witness on this score has been succinctly established and supported by the medical evidence. There is no reason to disbelieve the version of the prosecution. In short, although the prosecution is strong, weighty, creditworthy, coherent leading to conclusion of complicity of accused Nos. 4 and 5 and the same can be expounded even without explanation of the injuries on the person of accused No. 5, in view of the observations of the Supreme Court in State of Gujarat v. Bai Fatima case AIR 1975 SC 1478 : 1975 Cri LJ 1079 (supra) and followed in Laxmi Singh case. However, in the present case, the prosecution does not require to fall back upon the exception also for the simple reason that the injuries sustained by accused No. 5 have been clearly explained by the prosecution without any doubt. Therefore, there would not arise any question of giving benefit of doubt on the ground that the gist and genesis have not been succinctly established or spelt out from the record.
50. Reliance is also placed on decision in Jagdish v. State of Rajasthan AIR 1979 SC 1010 : 1979 Cri LJ 888. It is true that where serious injuries are found on the person of the accused, as a principle of appreciation of evidence, it becomes obligatory for the prosecution to explain the injuries sustained by the accused so as to satisfy the Court as to the circumstances in which the occurrence oriented. But before this obligation is placed on the prosecution, two conditions must be satisfied.
(i) that the injuries on the person of the accused must be very serious and severe and not superficial and
(ii) that it must be shown that these injuries must have been caused at the time of the occurrence in question.
This decision also does not take the defence version any further.
51. Next, it will obviously take us to appreciation and evaluation of defence plea of right of private defence of body. It may be mentioned that in Chapter IV of the IPC, general exceptions are provided from Section 76 to 106. We are concerned with provisions of Sections 96 to 106 wherein right of private defence of body and of property with extent and ambit has been provided. The defence plea is of self-defence, in that, it is submitted that accused No. 5 after being hurt and injured with a knife blow inflicted by the deceased, when he was sleeping on a cot, stood up, chased the members of opposite party who were armed with weapons and three of them were armed with dharia, snatched away the stick from Khodabhai Lakhabhai and then started wielding rigorously and vigorously and in such a way that all the assailants including the persons armed with dharia went away and while doing so, in that process, stick was inflicted on the head portion of the deceased. Therefore, the action of accused No. 5 was not an offence in view of provisions of Section 96, but it was exercise of right for self-defence. This contention is reiterated before us which, in our opinion, also is meritless and is required to be rejected. No doubt, the principles in case of right of self-defence of the body and of property enunciated in Sections 96 to 106 will be highlighted by us hereinafter. But one thing is certain about which we have not the slightest doubt that the manner and mode in which defence plea has been raised and repeatedly cited before us is not only unreliable and unbelievable but highly improbable. Imagine, a person who is lying in a cot who had serious injuries on chest portion with knife would stand up and take out or snatch away stick from one of the assailants, three of whom were armed with dharia and one was armed with knife, as per the defence story and thereafter, will start spinning and wielding in such a way that, that by itself. The assailants will run away and in that process, one of the assailants viz. the deceased would sustain injuries on the top of his head which would prove fatal. How far, such version can be said to be plausible, rational and logical? The spontaneous answer would be in the negative, which is highly unnatural and highly improbable. It is raised presumably to get out of the rigours of serious complicity committed in killing the deceased Dilip by inflicting blunt portion of dharia on the top of head which blow undoubtedly proved fatal. Therefore, in our opinion, the said plea raised for self-defence is nothing but an afterthought and is not acceptable and sustainable.
52. It is true that following principles governing the case of plea of self-defence are material:
(i) Section 96 provides for plea of private defence which is done in exercise of right of private defence. Therefore, it is one of the general exceptions available to the accused in defence.
(ii) right of private defence is available to the party against unlawful assembly and aggression. It can never be permissible plea when the accused propounding such right is found to be aggressor;
(iii) Principles governing burden of proof where the accused sets up a plea of private defence are as follows Section 105 of the Evidence Act enacts an exception to the general rule whereby in a criminal trial, the burden of proving everything necessary to establish the charge against the accused beyond reasonable doubt, rests on the prosecution. However, according to provisions of Section 105, the burden of proving the existence if circumstances bringing the case within any of the general. Exceptions of the IPC or within any special exception or proviso contained in any other part of the Code or any other law, shall be on the accused person and the Court shall presume the absence of such circumstances. However, Section 105 does not neutralise or shift the general burden that lies on the prosecution to prove beyond reasonable doubt all the ingredients of the offence with which the accused stands charged.
(iv) Once the prosecution establishes culpability of the accused beyond reasonable doubt, it is only after that the question would arise as to whether the accused has acted in exercise of his right of private defence. Thus, Section 105 of the Evidence Act would be attracted.
(v) Section 105 of the Evidence Act shall regard the absence of circumstances on the basis of which the benefit of an exception (such as the one on which right of private defence is claimed) as proved unless after considering the matters before it, it believes that the said circumstances existed of their existence was so probable that a prudent man ought, under the circumstances, of the particular case, to act upon the supposition that they did exist.
(vi) The accused, therefore, is obliged to rebut the presumption envisaged in the last limb of Section 105, by bringing on record evidential material before the Court sufficient for a prudent man to believe that the existence of such circumstances is probable or plausible. In other words, even under Section 105, the standard of proof required to establish those circumstances is that of a prudent man as laid down in Section 3 of the Evidence Act. But within that standard there are degrees of probability, and that is why under Section 105, the nature of burden on an accused person claiming the benefit of an exception is not as onerous as the general burden of proving the charge beyond reasonable doubt cast on the prosecution. The accused may discharge his burden by establishing a mere balance of probabilities in his favour with regard to the said circumstances either by leading evidence or by showing from the evidence led by the prosecution.
(vii) It is, therefore, necessary for the Court to consider the questions (i) whether right of private defence of body or property ever accrued to the accused; (ii) if yes, whether exercise of right extended to the accused to causing of death;
(viii) The Code except from the operation of its penal clauses large classes of acts done in good faith for the purpose of repelling unlawful aggression but this right has been regulated and circumscribed by several principles and limitations. The most salient of them concerned the defence of body are as under :
(i) there is no right of private defence against an act which is not in itself an offence under the Code;
(ii) the right commences as soon as and not before, reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence although the offence may not have been committed and it is conterminous with the duration of such apprehension.
(iii) It is defensive and not a punitive or retributive right;
(iv) In no case, the right extends to the inflicting of more harm than it is necessary to inflict for the purpose of the defence.
(v) Therefore, in other words, the injury which is inflicted by the person exercising the right should be commensurate with the injury with which he is threatened. Obviously, it may not be possible to expect from a person exercising this right in good faith, to weigh with golden scales what maximum amount of force is necessary to keep within the right. Therefore, every reasonable allowance should be made depending upon surrounding circumstances.
(vi) The accused is not expected to mound and modulate his defence step by step according to the attack;
(vii) Right of private defence extends to the killing of the actual or potential assailant when there is a reasonable and imminent apprehension of the atrocious crimes highlighted in the sixth clause of Section 100.
(viii) The combined effect of these two clauses is that taking the life of the assailant would be justified on the plea of private defence if the assault causes reasonable apprehension of death or grievous hurt to the person exercising the right.
(ix) It, therefore, becomes clear that a person who is in imminent and reasonable danger of losing his life or limb, may in the exercise of right of self defence inflict any harm, even extending to death on his assailant either when the assault is attempted or directly threatened. No doubt, this principle is also subject to the preceding rule that the harm or death inflicted to avert the danger is not substantially disproportionate to and in commensurate with the quality and character of the perilous act or threat intended to be repelled.
(x) The right being in essence, 3 defensive right, does not accrue and avail where there is time to have recourse to the protection of the public authorities;
53. Having given our anxious thought and consideration to the testimonial collection and documentary evidence, and having dispassionately heard the learned advocate for the accused and the learned Additional Public Prosecutor, we are of the clear opinion that-
the prosecution has successfully established the culpability of the appellants in conviction appeal viz. original accused No. 4 for having committed offence punishable under Section 302, IPC and Section 135 of the Bombay Police Act and also culpability of original accused No. 5 for offences punishable under Sections 323, IPC and 135 of the Bombay Police Act. The sentencing order is also quite justified. The trial Court has considered all the relevant facts and circumstances and the relevant proposition of law. We, therefore, find that the impugned judgment is quite justified and does not require any interference. Consequently, conviction appeal No. 1042 of 1992 at the instance of original accused Nos. 4 and 5 and acquittal appeal No. 1281 of 1992 at the instance of the State, both are meatless and are required to be dismissed affirming and confirming the impugned judgment of conviction and sentence in part and acquittal also in part.
54. Accused No. 4 is in jail; whereas, accused No. 5 is on bail. Obviously, therefore, his bail shall stand cancelled and he shall surrender to serve out the sentence imposed by the trial Court and confirmed by us, forthwith. Non-bailable warrant be issued against him.