Allahabad High Court
Bharat Singh & Others vs State Of U.P. on 30 May, 2018
Bench: Ashwani Kumar Mishra, Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Case :- CRIMINAL APPEAL No. - 1819 of 1983 Appellant :- Bharat Singh & Others Respondent :- State Of U.P. Counsel for Appellant :- Lalji Sahai Srivastava,Akhilesh Srivastava,Apul Mishra,Brij Mohan,Brijesh Yadav,M.W. Siddiqui,P.N.Mishra,Puneet Srivastava,Sushil Kumar Counsel for Respondent :- A.G.A. Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Chandra Dhari Singh,J.
(Delivered by Hon'ble Chandra Dhari Singh,J)
1. Heard Sri Sushil Kumar, learned counsel for the appellants and Sri Arunendra Kumar Singh, learned A.G.A. for the State and perused the record.
2. This instant jail appeal has been preferred against the judgment and order dated 05.08.1983, passed by the Special Judge (E.C. Act), Aligarh in Session Trial No.51 of 1982, by which the accused-appellants had been convicted for offence punishable under Section 147 I.P.C. and sentenced them to undergo one year's rigorous imprisonment under Section 323 read with Section 149 I.P.C to undergo one year's rigorous imprisonment and to undergo life imprisonment under Section 302 read with Section 149 I.P.C. Further convicting Gyan Singh alias Ginna also under Section 354 I.P.C. and sentencing him to undergo one year's rigorous imprisonment. All the sentences shall run concurrently.
3. Brief facts of the case.
(I) The story of the prosecution is that a written F.I.R. Ex.Ka-1 was lodged by Smt. Lilawati at P.S. Atrauli on 16.03.1981 at 9:10 p.m. According to Ex.Ka-1 complainant Smt. Lilawati is a resident of village Malahour. On 16.03.1981 at about 10:00 a.m. in the morning her daughter Suman aged about 18 years went to village Ganeshpur for the purposes of cleaning latrines as the complainant is Harijan by caste. She was followed by Ginna son of Bharat Singh. When she reached near the filed of Prem Shanker Ginna tried to molest her and with an intention to commit rape he caught hold of her. Suman came back to her house weeping and she narrated the story to her parents. The complainant, her husband, Suman and one Damodar went to Bharat Singh who was present on his tube-well immediately and complained about the incident who (Bharat Singh) started abusing them. He also beat them with lathi and thereafter the complainant and other members went to police station Atrauli to lodge the report. While they were on the way to police station Ram Singh son of Khubi, Sheoran son of Khubi, Munshi son of Bhanu, Ranvir son of Netram, Bhartiya son of Ram Singh, Kripal Singh son of Jangali, Chhuttan son of Sultan Singh, Pramod Singh, Biri Singh, Nidar son of Surajpal and Ginna son of Bharat Singh armed with lathis and others came and stopped them near bus stand from going to police station. The complainant and her other family members were caught hold by them and they brought them at the tube-well of Bharat Singh. They were saying that they would beat them at their own tube-well (Engine). Bharat Singh ordered to kill the complainant and her family members who are Harijan by caste, on which all of them beat them with lathis. On account of the said beating Ram Lal succumbed to his injuries at the spot. Damodar and others received injuries. This occurrence was witnessed by Munshi, Dhoom Singh and Deep Chand who came there. The occurrence was also witnessed by other persons. According to written report Ex.Ka-1 dead body of Ram Lal was lying on the spot and the complainant along with Rana went to police station to lodged the report. It is further narrated that miscreants also out fire in the house of the complainant.
(II) On the basis of Ex.Ka-1, chick F.I.R. Ex.Ka-2 was prepared. According to chick F.I.R. Ex.Ka-2 distance between the place of occurrence and the police station is seven miles.
III. Case under Sections 147, 148, 323, 436, 354 and 302 I.P.C. Was registered against the accused through G.D. No.45 dated 16.03.1981, written at 9:10 p.m. at P.S. Atrauli, which is Ex.Ka-3.
IV. According to Ex.Ka-3 investigation of the case was conducted by S.H.O. Badan Singh. The Investigating Officer along with police force went on the spot. Information of the occurrence was also given to the district authorities on wireless.
V. The Investigating Officer prepared inquest report which is Ex.Ka-11. The dead body was sealed and the same was sent for post-mortem by S.I. Devendra Singh Yadav through constables 582 Snhari Lal and Constable No.1385 Kishan Pal which is Ex.Ka-13.
VI. Post-mortem of the dead body was conducted by Dr. J.N. Singh (CW-1) on 18.03.1981. at 3:15 p.m. The following ante-mortem injuries were found on the body of the deceased Ram Lal :-
(i) Lacerated wound 1" x 1/2" x bone deep on left side head middle part .4" from ear.
(ii) Lacerated wound 1½" x 1/2" x bone deep on right side of head 4½" above to the right ear.
(iii) Lacerated wound 1/4" x 1/4" x bone deep on right upper arm upper part with compound fracture of humerus bone shaft.
(iv) Contusion with swelling on right writ post aspect 6" x 4" in area under neath both bone 8 are fractured.
(v) Abraded contusion multiple in area of 6" x 2½" on post aspect of left forearm middle part.
(vi) Traumatic swelling 1½" x 1" on dorsum of left hand.
(vii) Abrasion 1" x 1/2" on left tibial region middle part.
(viii) Traumatic swelling all around of right ankle region.
(ix) Lacerated wounds ¾" x 1/2" x bone deep on right ankle region outer aspect with compound fracture of both bones (Tibia and Febula).
CW-1 prepared post mortem report which is Ex.Ka-14.
VII. According to G.D. No.45 (Ex.Ka-3) the injured were sent for medical examination, Mazrubi chitthi were prepared and Damodar, Lilawati and Suman were sent for medical examination.
VIII. Smt. Lilawati, Suman and Damodar were medically examined by Dr. J.P. Garg who was Incharge, Primary Health Centre, Atrauli and prepared injury memos. Injury report of Smt. Lilawati is Ex.Ka-18, injury report of Suman is Ex.Ka-6.
According to the doctor the following persons received the following injuries :-
A. Injuries of Damodar :
(i) A lacerated wound of about 6.5 cm. x 0.5 cm. x skin deep semi-circular in shapes over left side of skull 11.0 cm. above left ear.
(ii) A lacerated wound of about 4 cm. x 2 cm. x skin deep over right side of head 12 cm. above and forward from right ear.
(iii) A contusion of about 9 cm. x 5 cm. Over outer back side of left forearm 3 cm. below of left elbow joint.
(iv) A contusion of about 10 cm. x 6 cm. over outer and back side of left forerarm 2 cm. above left wrist joint.
(v) A contusion of about 7 cm. x 10 cm. over back of left hand.
(vi) Four abrasions each measuring about 00.5 cm. x 0.5 cm. over an area of 3.0 cm. x 3 cm. over back of left hand.
(vii) A lacerated wound of about 1.5 cm. x 0.5 cm. x over front of aspect of left index finger 2 cm. below of root of index.
(viii) A lacerated wound of about 1 cm. x 0.3 cm. x skin deep over outer phalanged joint of ring and middle ginder of right hand.
(ix) A lacerated wound of about 0.5 cm. x 0.2 cm. x skin deep on an outer aspect of right upper arm 1.5 cm. above right elbow joint.
(x) An abrasion of about 1 cm. x 0.2 cm. over back of right elbow joint.
(xi) Multiple abrasions of different size over an area of 10.5 cm. x 3.5 cm. over back and inner aspect of right forearm.
(xii) A confusion of about 13.05 cm. x 9 cm. over back of right hand.
(xiii) Multiple abrasions each measuring 2 cm. x 1 cm. over an area of right leg.
(xiv) A contusion of about 10 cm. x 23 cm. over front of left knee.
(xv) A horizontal contusion of about 25 cm. x 2.5 cm. of back of chest.
(xvi) An oblique contusion of about 17.5 cm. x 2.5 cm. over back of chest.
(xvii) A contusion of about 12 cm. x 2.0 cm. over back of wrist.
(xviii) A contusion of about 20 cm. x 15 cm. over left shoulder.
(xix) A contusion of about 10 cm. x 9 cm. on right shoulder.
B. Injuries of Smt. Lilawati :
(i) A lacerated wound of about 3 cm. x 1 cm. x skin deep over right side of skull 7.0 cm. above right ear.
(ii) A contusion of about 11.5 cm. x 9.0 cm. over back of right shoulder bone.
(iii) A contusion of about 6.5 cm. x 5.5. cm. over back of left shoulder bone.
(iv) A contusion of about 8.0 cm. x 5.0 cm. over back of chest 3 cm. below from injury no.3.
(v) A contusion of about 11.5 cm. x 6.5 cm. over back of right side of chin just below lower angle of right scapula.
C. Injury of Smt. Suman :
(i) An abrasion of about 1.0 cm. x 1.0 cm. over back of right upper arm 4.5 cm. above of right elbow joints.
(ii) An abrasion of about 1.00 cm. x 0.2 cm. over upper surface of left foot.
IX. The Investigating Officer took simple and plain earth from the place where the dead body was lying and the same was sealed in separate bundles. Memo to this effect was prepared which is Ex.Ka-8. Site plans were also prepared by the Investigating Officer which are Ex.Ka-9 and Ka-10. Statements of the witnesses were recorded and after completing the investigation the Investigating Officer submitted charge sheet which is Ex.Ka-7. Blood stained and simpel earth, the clothes which were on the body of the decesed were sent for chemical examination. According to chemical Examiner's report Ex.Ka-16, all the six articles had human blood having 'A B' group. Ash of burnt house of the complainant was also taken in possession. A memo to this effect was prepared by the Investigating Officer on 17.03.1981 which is paper no.7A.
X. The charges under Sections 147, 323/149, 302/149 I.P.C. were framed against all the accused except Ginna on 10.03.1983. Charges under Sections 376/511, 147, 323, 149 and 302/149 I.P.C. was also framed against the accused Ginna on 11.03.1983. Charges were read over to the accused who pleaded not guilty. They stated that they were falsely implicated in the present case and pleaded for trial.
XI. In order to prove its case, the prosecution has examined seven witnesses. The court summoned Dr. J.N. Singh, Medical Officer, Incharge Jail Hospital, Aligarh who was examined as CW-1 on 23.05.1983, who conducted post mortem on the dead body of deceased Ram Lal and proved post mortem report Ex.Ka-1A. No oral evidence has been produced in support of the defence version.
XII. After appreciation of the evidence on record and other circumstances, the trial court had convicted the accused Bharat Singh, Kirpal Singh, Nidar Babu, Rajvir and Gyan Singh @ Ginna for offences punishable under Section 302 I.P.C. read with Sections 149 I.P.C, 323 I.P.C. read with 149 I.P.c. and Section 147 I.P.C. Accused Gyan Singh @ Ginna has further found guilty of an offence punishable under Section 354 I.P.C. He is also convicted under the said Sections. Accused Pramod, Yogendra @ Chhuttan, Ram Suli, Sheoraj Singh, Bhartia son of Ram Lal and Munshi were acquitted of all the Sections by giving benefit of doubt. Accused Ginna was also acquitted under Section 376 read with 511 I.P.C.
XIII. The appeal filed on behalf of appellant no.2 Kripal Singh and appellant no.5 Gyan Singh @ Ginna has been abated in view of the order dated 19.11.2015 passed by this Court. Similarly, the appeal filed on behalf of appellant no.1 Bharat Singh has also abated in view of the order dated 27.11.2015 passed by this Court.
4. The Criminal Appeal bearing No.1819 of 1983 was filed against the order dated 05.08.1983 passed by Special Judge (E.C. Act), Aligarh in S.T. No.51 of 1982 before the Court.
5. Mr. Shshil Kumar, learned advocate appearing for the appellants has submitted that appellants have been falsely implicated in the crime for offence punishable under Sections Section 302 read with Section 149 I.P.C. Further convicting Gyan Singh alias Ginna also under Section 354 I.P.C. and sentencing him to undergo one year's rigorous imprisonment. The applicants have falsely been implicated in the present case on account of enmity and village parti bandi. He further submitted that the appellants were not present on the spot nor caused any injuries to the deceased or any other member of the deceased side. It is further submitted that the F.I.R. is highly belated one, therefore, does not narrate true version of the incident.
Learned counsel for the appellants submitted that in the statement of Lilawati, it is apparent that they went to the police station by bus on the next day while according to her examination-in-chief Rana came in the night, he scribed the report of PW-1 and carried the injured in a Buggi to police station. She reached the police station at about 9:00 p.m. He further submitted that in column 1 of Ex.Ka-1 (panchnama), there is an overwriting, anti dated and time. He further submitted that no injury has been mentioned in the G.D., copy of which is Ex.Kha-3. Ex.Kha-3 narrates that Damodar, Lilawati and Suman had injuries on their presence but the details of injuries had not been given in G.D. He further submitted that it is established beyond doubt that Bharat Singh was not aggressor. The object of Bharat Singh was to prevent assault on him and his wife in exercise of right of private defence of his person. This object was not unlawful nor it is possible to say that his object was to kill Ram Lal. It is further submitted that it is well settled that in case of exercise of right of private defence no accused can be held guilty under Sections 147, 148 I.P.C. or with the aid of Section 149 I.P.C. or 34 I.P.C. Therefore, the accused had a right to protect their body and also to cause injury to the deceased and the complainant PW-2 Damodar for their private defence. Learned counsel for the appellants submitted that the second charge as narrated in F.I.R. is false and he referred the statement of PW-2 who had admitted in cross-examination that while the deceased Shyam Lal, complainant Smt. Lilawati and Damodar were going to the police station, there were injuries on the head not in legs of her father. She further stated that her father was being carried by her mother while the deceased was going to the police station. She has also stated that her father was unable to stand, her father has injuries in his right hand. Both the hands were broken, it was unable to move his hands, both the legs were also broken.
Learned counsel for the appellants further submitted that on account of above statement, it is apparent that the deceased sustained injuries at the first occurrence and were found on the body of the deceased at the time of post-mortem. Therefore, the second occurrence has been concocted in the case just to implicate ten other accused.
It is further submitted that there is no explanation on the part of the prosecution for examining the witnesses under Section 161 Cr.P.C. after 1-3 days, therefore, the delayed examination under Section 161 Cr.P.C. is fatal for the prosecution case.
6. Per contra, learned A.G.A. has vehemently opposed the contentions made by learned counsel for the appellants and submitted that the prosecution has proved its case beyond reasonable doubt, therefore, the present criminal appeal has no merit and deserves to be dismissed. He further submitted that PW-1 Lilawati who is complainant and eye witness of the alleged occurrence had also proved written report lodged by her. PW-2 Suman has stated in the deposition that she was molested by the accused Ginna and he was also present on the spot.
It is further submitted that delay in lodging the report was duly explained by the informant Smt. Lilawati contending that the accused did not permit it and threaten for a consequence, therefore, they were not able to proceed to the police station for lodging the F.I.R. The delay in lodging the F.I.R. was properly explained by the informant. It is further submitted that non-mentioning of the injury in G.D. was explained by the Investigating Officer. In his explanation, he submitted that the details of the injuries by the mistake could not be mentioned in the G.D. and he further submitted that non-mentioning of detail of injury in the G.D. cannot get any benefit of this mistake or of this latches on the part of the Investigating Agency, regarding this the law has already been settled.
7. It is further submitted that the appellants cannot take benefit of the private defence as it is clear from the record that there was no free fight between the parties. The occurrence took place in two phases. The trouble started when Ginna son of accused Bharat Singh tried to molest her by catching hold to her hand on which the deceased, PW-1, PW-2 and Damodar went to the field of Bharat Singh to complaint about the said incident where there was a Marpeet between the parties and thereafter while the deceased, PW-1, PW-2 and Damodar were on the way to the police station and reached near the bus station, they were stopped by the accused persons and taken them to the Tubewell, where Ram Lal was beaten severely who succumbed to injuries caused to him.
It is submitted that PW-1 Lilawati, complainant is the widow of Ram Lal deceased who has supported the prosecution story and has lodged the F.I.R. Except for some minor contradiction regarding time etc. there is no major contradictions in her statement and the F.I.R. Therefore, her statement is fully reliable. There is no reason to discard her testimony. She has specifically stated that they went to field of Bharat Singh for complaining about the incident relating to his son on which they were abused and beaten, when they were going to lodge the report and reached near bus station, they were surrounded by the accused persons and the deceased, the complainant, PW-2 and Damodar were again taken back to the tubewell of Bharat Singh where they were beaten severely and Ram Lal succumbed to the injuries caused to him.
8. PW-2 Suman has also fully corroborated the statement of PW-1 and the F.I.R. and therefore, the criminal appeal has no merit and deserves to be dismissed.
9. We have heard learned counsel for the parties and perused the record.
10. PW-1 Smt. Lilawati in her examination-in-chief has stated that Ram Lal died (at about 10 a.m.) and after his death she remained with the deceased at the field of Bharat Singh. In the evening before sun set, one Rana (Neta) of her caste came from Atrauli and took all the injured in his Buggi to the police station Atrauli, whereas in the cross-examination, she has admitted that next day morning after the occurrence she along with Damodar PW-5, Smt. Suman PW-2 went by a bus to police station Atrauli and informed Rana about this incident and she went to Atrauli with about 20 other persons who invaded in the police station and it was only after this that the case was registered. The statement of Lilawati has been written in question answer form. In cross-examination, there are following question answers:
Q. Is ghatna ke agle roz ap, Damodar aur apki larki Suman subah ko bas se thane gaye?
A. Yah thik hai.
Aur Rana ko Atrauli main is ghatna ki babat bataya wuh hamain thana le gaya aur rapat likhwai. Uske bad Damadar ko aspatal bhej diya gaya aur main aur meri larki uske sath gaye. Us samay jab ham thane pahunche to suraj nahin duba tha parantu jab aspatal gaye tab suraj dub gaya tha. Jab Rana se ham ne kaha to Atrauli ke karib bis harijan harare sath ho gaye the.
Q. Jab harijano ne thane par hamla kiya tab apka mukadama darz hua?
A. Yah thik hai.
PW-1 Lilawati supported the prosecution story and version of the F.I.R.
11. PW-2 Suman was said to have been molested by Ginna. She deposed in her deposition that the accused did not try to commit rape and further stated that her mother and other injured persons were restrained from going to police station. Damodar was tied with rope near water engine and when Rana came, he scribed the report at the instance of the mother (PW-1) and the same was lodged at the police station on the same day.
12. She submitted that the incident of molestation was told to her mother and her mother with other persons went to Bharat Singh, the father of Ginna who tried to molest and rape her and when they reached to Bharat Singh's place, Bharat Singh started abusing them and started beating her father and on that the deceased sustained some injury. After that they went to the bus stand for the purpose of going to the police station for lodging the F.I.R. She further stated in the deposition that at the bus stand all accused persons came and surrounded them and forcibly they brought back all persons including the deceased to the tubewell where they severely beat all the persons but her father sustained serious injury and therefore, he died on the spot.
13. PW-3 is Head Constable Brij Bhushan who scribe the chick F.I.R. And G.D. No.45 on the basis of written report Ex.Kha-1.
14. PW-4 Sunhari Lal who brought the dead body of Ram Lal from the place of occurrence to the District Hospital from the post-mortem.
15. PW-5 is Damodar and an eye witness of the case and according to the prosecution, received injuries has not supported the prosecution case and has declared hostile.
16. PW-6 Dr. J.P. Garg, who medically examined PW-1 Smt. Lilawati and PW-2 Suman and prepared the injury memos but during the course of examination PW-6 has stated that he also medically examined Smt. Longshri wife of Bharat Singh and after examining Bharat Singh prepared their injury memos which are Ex.Kha-2 and Kha-4.
17. PW-7 is Inspector Badan Singh who investigated the case and submitted charge sheet. In his testimony, he stated that the F.I.R chick was made in his presence, he was posted as S.H.O. in police station Kithore. He further stated that all three injured i.e. Lilawati, Suman and Damodar had come in police station for lodging the F.I.R. He started the investigation and recorded the statement of all injured Lilawati, Suman and Damodar. He proceeded to the place of incident at 11:00 p.m. On the same date i.e. 16.03.1981. He saw the dead body of Ram Lal on the site. He searched the accused persons but nothing was found. Next day morning panchnama was prepared as Ex.K-4. He collected the plain blood stained earth from the site and made a fard as Ex.K-8. He prepared the site plan as Ex.K-10. The cloths of the deceased were sent for medical examination and their report was recovered as Ex.Ka15. In the cross-examination nothing has come out contradictory vis-a-viz examination in chief of the said witness.
18. The applications of eye witnesses namely Munshi and Damodar were filed in the trial court. These applications have been supported by affidavits. According to the said affidavit he had not seen any occurrence on 16.03.1981 at 10:00 a.m. he was on duty in Tubewell Division at Kothi No.7 situated at Atrauli, District Aligarh. Affidavit of Damodar son of of Gyani dated 26.03.1981 supported the defence version.
19. We have considered the rival submissions made by the learned counsel for the parties and perused the material on record.
Before we proceed to appreciate the facts of the case, the submission advanced and the judgment delivered by the court below, it would be desirable to refer to the settle legal position, operating in the field.
Delay in recording the statement of the prosecution witnesses under Section 161 Cr.P.C. and its effect:
20. Section 161 Cr.P.C. titled on 'Examination of witnesses by police' provides for oral examination of a person by any investigating officer when such person is supposed to be acquainted with the facts and circumstances of the case. The purpose for and the manner in which the police statement recorded under Section 161 Cr.P.C can be used at any trial are indicated in Section 162 Cr.P.C. Object and purpose of Section delay in recording the statement of the witnesses does not necessarily discredit their testimony. If their cogent and credible and the delay is explained to the satisfaction of the Court. The effect of delay in recording the statmeent of witnesses under Section 161 of the Cr.P.C. was examined by the Hon'ble Supreme Court in the case of Harbeer Singh vs. Sheeshpal, where the Hon'ble Supreme Court observed that delay in recording of the statement of the prosecution witnesses under Section 161 Cr.P.C., although those witnesses were or could be available for examination when the Investigating Officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case.
21. It is settled law that every delay in examining the witness is not fatal subject to explanation given by Investigating Officer to the satisfaction of Court. It is settled law that delay in recording the statement of the witnesses does not necessarily discredit their testimony but if those witnesses were or could be available for examination when the Investigating Officer visited the scene of occurrence or soon thereafter, and even though the delay has occurred, it would cast a doubt upon the prosecution case.
22. In the instant case, the Investigating Officer PW-7 has recorded the statement under Section 161 Cr.P.C. of all injured witnesses after one to three days. Normally in a case where the commission of the crime alleged to have been seen by witnesses who one easily, a prudent investigator would give to examination of such witnesses procedure over the evidence of other witnesses. Any irregularities committed by the Investigating Officer is not fatal to the prosecution case.
Delay in F.I.R.
23. Delay in lodging the First Information Report and results in embellishment and exaggeration, which is a creature of an afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity, the danger of the introduction of coloured version, exaggerated account of the incident or a concocted story as a result of deliberations and consultations. It is, therefore, essential that the delay in lodging the first information report, should be satisfactorily explained to condone the delay. The delay in transmission of the copy of the first information report, the Magistrate, if not properly explained may also make the prosecution story suspicious that the report was recorded much later than the stated date.
24. It is settled principle of criminal jurisprudence that mere delay in lodging the FIR may not prove fatal in all cases, but in the given circumstances of the case delay in lodging the FIR can be one of the factors which may corrode the credibility of the prosecution. In the instant case, the incident was took place on 16.03.1981 at 10:00 a.m. and the F.I.R. was lodged on 16.03.1981 at 9:30 p.m. The distance from the place of incident to the police station was 7 kms. by the complainant PW-1, Lilawati. PW-1 Lilawati in her testimony stated that when they were coming to the police station for lodging the F.I.R. of the incident which was took place, the accused persons surrounded them and did not allow to proceed further to the police station for lodging the complaint of the incident and they started beating her along with other injured. In that incident the deceased Ram Pal was died on the spot. She further stated that after the sun set some persons from her caste came from the village and then they along with other villagers went to the police station for lodging the F.I.R. and therefore, some delay in lodging the F.I.R.
25. In view of the above statement, it is crystal clear that delay in lodging the F.I.R. was duly explained by the complainant. The Hon'ble Supreme Court in the several cases held that the delay in lodging the F.I.R. should be satisfactorily explained to condone the delay. Delay in reporting the incident to the police is never fatal to the prosecution case. The kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report of the incident to the police. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report.
26. Whether the delay is so long as to throw a cloud of suspicion on the case of the prosecution would depend upon a variety of factors.
27. In the case of State of Karnataka vs. Papanna @ Babavaraj Shivappa, (2008) 17 SCC 739, the Hon'ble Supreme Court held as under:
"6. Regarding delay in sending FIR, the High Court states that although there has been no cross-examination on the aspect of delay in sending the FIR to the Magistrate, but a possibility of some deliberation before registration of FIR cannot be ruled out as a result of delay in sending the FIR. We fail to understand how the High Court held that there was delay in sending of FIR to the Magistrate or there was any possibility of deliberation before the matter was reported to the police. The incident had taken place at 9:00 p.m. The deceased was taken to the hospital. He was declared to have been brought dead to the hospital. The FIR was recorded at 10:30 p.m. It was handed over to the constable at 11:30 p.m. and within one-and-a-half hours during midnight the FIR reached the Magistrate. All these facts have been noticed by the trial court. None has been adverted to by the High Court. The High Court has not held that the trial court was in error in recording the facts regarding the FIR. The findings of the trial court on this count have not been shown to be incorrect by the learned counsel for the respondent. Clearly, therefore, the conclusion reached, without any factual basis, that there was delay in sending of FIR to the Magistrate is nothing but perverse."
28. In the case of State of Maharashtra vs. Prakash Sakha Vasave and others, (2009) 11 SCC 193, the Supreme Court held as under:
"15. So far as the delay in lodging the First Information Report is concerned, it has been accepted that the informant went to the wrong police station and when he was directed to go to Navapur Police Station, he went there and lodged the FIR. That clearly explains the delay. In the ultimate analysis, the High Court was not justified in directing acquittal of A1 and A2. However, so far as A-3 is concerned, the High Court has indicated sufficient reasons for holding him not guilty. Same needs no interference. But the reasons indicated for directing acquittal of A-1 and A-2 are not justified. We, therefore, set aside the judgment of the High Court so far as their acquittal is concerned. But considering the facts of the case, it is apparent that the accused persons were annoyed with the deceased because of his having illicit relationship with another lady while his wife was alive. The case does not fall in the rarest of rare category. The appropriate sentence would be life imprisonment. The State's appeal is allowed to the extent indicated above. Respondents 1 and 2 are directed to surrender to custody forthwith to serve the remainder of sentence."
29. In the Case of Bhargavan and other vs. State of Kerala, (2004) 12 SCC 414, the Supreme Court held as under:
"23. It has been explained as to why there was delay in lodging the first information report. The trial court and the High Court considered the evidence and came to hold that the paramount attempt was to save the life of the deceased, and the witnesses tried to take him to the hospital at Kottayam. The evidence of PW-18 was sufficient in itself to uphold the conviction. Additionally, there is evidence of dying declaration."
30. In the case of Om Prakash vs. State of Haryana, (2011) 14 SCC 309, the Hon'ble Supreme Court held as under:
"18. There is some delay in lodging the FIR but that delay has been well explained. A young girl who has undergone the trauma of rape is likely to be reluctant in describing those events to anybody including her family members. The moment she told her parents, the report was lodged with the police without any delay. Once a reasonable explanation is rendered by the prosecution then mere delay in lodging of a first information report would not necessarily prove fatal to the case of the prosecution."
31. In the case of Darshan Singh vs. State of Punjab and another, 2010 2 SCC 333, the Supreme Court held as under:
"20. The trial court after discussing the entire evidence came to the conclusion that two counter versions of the case have been presented and, in the view of the trial court, the defence version is more probable and nearer to the truth for the following reasons:
(i) The delay in lodging the FIR impels the court to scrutinize the evidence of witnesses regarding the actual occurrence with greater care and caution.
(ii) The crucial point to be decided in this case was that who was the aggressor or which of the parties can have the motive to open the attack?
The trial court held that "if the accused were already cultivating the land as per compromise, then it does not appeal to reason as to why they would feel aggrieved. On the other hand there was a strong motive for Gurcharan Singh to assault the accused person as he has resiled from the compromise."
(iii) The next crucial point according to the trial court was as to where the incident took place? According to the trial court the incident had taken place in the field of the accused.
(iv) According to the trial court, the presence of the prosecution witnesses Gurdev Singh and Gurdish Singh at the time of alleged occurrence is highly doubtful. Dr. Mukesh Gupta stated that the injuries on Gurdev Singh and Gurdish Singh could be caused by friendly hands and can be self suffered.
(v) No pellet was recovered from the injuries of the prosecution witnesses namely, Gurdev Singh and Gurdish Singh. The possibility of the injuries on their persons having been fabricated at a later stage cannot be ruled out. The trial court found that, in the instant case, it appeared that the inquest report was prepared first and the FIR was prepared at some later stage because there was no mention about the injuries of Gurdev Singh and Gurdish Singh in the inquest report, whereas this fact is mentioned in the FIR. According to the prosecution case, Gurdish Singh suffered a pellet injury on his left upper arm whereas, Gurdev Singh was hit on his left thigh. This was so mentioned in the FIR. If it was so, this fact would have been mentioned in the inquest report or the Investigating Officer must have prepared their injury statement, but no such injury statement was prepared at the spot nor their medical examination was got done.
In the cross-examination, Om Prakash ASI had admitted that he came to know about the injuries of Gurdish Singh and Gurdev Singh only when they gave their supplementary statements at the bus stand. The finding of the trial court is that the injuries were fabricated with the connivance of the Investigating Officer just in order to make Gurdish Singh and Gurdev Singh stamp witnesses.
(vi) Gurdish Singh P.W.7 had admitted that his father Gurcharan Singh was face to face when Bakhtawar Singh gave Gandasa blow from above to downward vertically on the chest of Gurcharan Singh. However, Dr. Mukesh Gupta contradicted him and stated that injury no.3 on the person of Gurcharan Singh was skin deep and was horizontally placed and was possible by a fall on a sharp edged weapon.
From this it can safely be concluded that it was not Bakhtawar Singh who gave Gandasa blow to Gurcharan Singh in the manner as suggested by the prosecution. It is most likely that Gurcharan Singh suffered injury no. 3 by a fall on his own Gandasa and this was the reason that the wound was only skin deep.
The story put forth by the prosecution that Gurcharan Singh was cutting weeds of ridges with Gandasa is not believable. Gurdish Singh stated that he was collecting the cut weeds. They were not having any Kassi or Khurpa and it was not possible to cut weeds of ridges with Gandasa.
(vii) The trial court came to a clear conclusion that Bakhtawar Singh was injured at point `F' as shown in the site plan at the hands of Gurcharan Singh (deceased). Gurcharan Singh after causing that injury forwarded towards Darshan Singh armed with Gandasa and at that point Darshan Singh had no option but to open fire and Gurcharan Singh died of that firearm injury. The trial court came to the definite conclusion that Darshan Singh fired a shot in his right of private defence.
(viii) The trial court after marshalling the entire evidence came to the conclusion that seeing from all angles, the probabilities of the case are much more in favour of the defence than in favour of the prosecution. The possibility of the injuries having been caused to Gurcharan Singh by Darshan Singh in exercise of private defence cannot be ruled out. Thus, the prosecution has failed to prove its case against the accused person beyond any reasonable doubt and the benefit has to be given to them."
Right of Private Defence
32. The state has the duty to protect its citizens and their property from harm. However, circumstances may arise when the aid of state machinery is not available and there is imminent danger to a person or his property. In such situations, a person is allowed to use force to ward-off the immediate threat to his or someone else's person or property. This is the right of private defence. The people are endowed with this right so that they can defend themselves and their property and not hesitate due to fear of prosecution. The right, in some circumstances even extends to causing death of the person who poses such a threat. But such a right is subject to some restrictions and not available in all circumstances. It is only allowed when the danger to life or property is immediate and the accused is not the aggressor. The right of private defence is not available against public servants acting in exercise of their lawful powers. A person is allowed to use only reasonable force; force that is proportionate to the impending danger.
33. Sections 96 to 106 of the penal code state the law relating to the right of private defence of person and property. The provisions contained in these sections give authority to a man to use necessary force against an assailant or wrong-doer for the purpose of protecting one's own body and property as also another's body and property when immediate aid from the state machinery is not readily available; and in so doing he is not answerable in law for his deeds. Self-help is the first rule of criminal law. The right of private defence is absolutely necessary for the protection of one's life, liberty and property. It is a right inherent in a man. But the kind and amount of force is minutely regulated by law. The use of force to protect one's property and person is called the right of private defence.
34. The expression ''private defence' that has been used in the Indian Penal Code, 1860, has not been defined therein. The right of defence under the IPC are that no right of self-defence can exist against an unarmed and unoffending individual, the right is available against the aggressor only and it is only the person who is in imminent danger of person or property and only when no state help is available. The most important principle is that the right of private defence requires that the force used in the defence should be necessary and reasonable in the circumstances. But, in the moments of disturbed mental condition, this cannot be measured in golden scales. Whether the case of necessity exists must be determined from the viewpoint of the accused and his act must be viewed in the light of the circumstances as they appear on such occasion.
35. In Roman Law, homicide was considered to be an act by which the life of a human-being was taken away. There were two degrees of criminal homicide, namely, murder and man slaughter and two degrees of homicide that did not expose a person to punishment, namely justifiable and excusable. Self defence was placed in the category of justifiable homicide. In self-defence violence was lawful: ''Vim enim vi defendere omnes leges emniaque jure permittunt' meaning by upper man, therefore, incurs no liability, if he kills another's slave who attacks him.
36. On the protection of life and property is axiomatic in every civilized society and because it is impossible for the State to do so on every occasion - as law enforcement officers cannot be omnipresent, the individual is given the right of private defence.
37. In the case of Darshan Singh vs. State of Punjab and another, (2010) 2 SCC 333, the Hon'ble Supreme Court held as under:
"23. It is a settled position of law that in order to justify the act of causing death of the assailant, the accused has simply to satisfy the court that he was faced with an assault which caused a reasonable apprehension of death or grievous hurt. The question whether the apprehension was reasonable or not is a question of fact depending upon the facts and circumstances of each case and no strait-jacket formula can be prescribed in this regard. The weapon used, the manner and nature of assault and other surrounding circumstances should be taken into account while evaluating whether the apprehension was justified or not?"
"56. In order to find out whether the right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered."
38. In the case of Sat Narain vs. State of Haryana, 2009 17 SCC 141, the Hon'ble Supreme Court held as under:
"28. We are conscious and mindful that a right of private defence cannot be weighed in a `golden scale' and even in absence of physical injury, in a given case, such right may be upheld by the Court provided there is reasonable apprehension to life or grievous hurt to such person. We are equally aware of settled legal position that the onus of proof on the accused as to exercise of right of private defence is not as heavy as on the prosecution to prove guilt of the accused and it is sufficient for him to prove the defence on the touchstone of preponderance of probability."
"38. It is settled law that the prosecution has to prove its case beyond reasonable doubt. But it is sufficient if the accused, when he is called upon to take a defence, proves it on the basis of reasonable probability. He need not prove it beyond reasonable doubt. But in the instant case, the complainant party was not the aggressor and the right of self defence was not available to the appellant and hence he could not have committed death of Chhotu Ram nor could have caused injuries to Sakeela."
39. In the case of Ravishwar Manjhi vs. State of Jharkhand, 2008 16 SCC 561, the Hon'ble Supreme Court held as under:
"36. There was no material brought on records to show that the appellants were the aggressors. If everything had happened within a short span of time as is alleged by the prosecution, namely, the appellants were causing nuisance which was objected to by the deceased; they went to their respective houses; came armed and started assaulting the deceased and other injured persons, it was also necessary for the prosecution to prove as to how accused persons received injuries. It is now a well settled principle of law that the accused can show that they were entitled to exercise right of private defence from the materials on records brought by the prosecution."
"37. The places where the injuries had been inflicted also assume significance. If the prosecution witnesses are to be believed, the first injury was caused on hand. It was thereafter injuries were caused on other parts of the person of the prosecution witnesses and the last injury was caused by `tenta'."
"38. In Charan Singh vs. State of Punjab, (1979) 4 SCC 399, this Court held:
"3... It is true that the defence case also has not been accepted by the High Court but once there is a probability of the accused having acted in self- defence, that is sufficient to entitle hiIn Chanan Singh vs. State of Punjabm to an acquittal."
"39. In Bishna vs. State of W.B. [(2005) 12 SCC 657], this Court noticed that a right of private defence need not specifically be taken and in the event the court on the basis of the materials placed on record is in a position to come to such a conclusion, the court may act thereupon. It was held:
"74. 'Right of private defence' is not defined. Nothing is an offence in terms of Section 96 of the Indian Penal Code, if it is done in exercise of the right of private defence. Section 97 deals with the subject matter of private defence. The plea of right of private defence comprises the body or property. It, however, extends not only to person exercising the right; but to any other person. 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. Sections 96 and 98 confer a right of private defence against certain offences and acts. Section 99 lays down the limit therefor. The right conferred upon a person in terms of Section 96 to 98 and 100 to 106 is controlled by Section 99. In terms of Section 99 of the Indian Penal Code, the right of private defence, in no case, extends to inflicting of more harm than it is necessary to inflict for the purpose of defence. Section 100 provides that the right of private defence of the body extends under the restrictions mentioned in the last preceding section to the voluntary causing of death or of any other harm to the assailant if the offence which occasions the exercise of the right be of any of the descriptions enumerated therein, namely, "First - Such an assault, as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly - Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault". 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 in this behalf is on the accused."
Rustic Witness
40. It is difficult to expect with rustic villagers to remember the events with mathematical precision after a lapse of more than two years. It is a common knowledge that ordinarily human memories are apt to blur with the passage of time. More so in the present case, when witnesses are rustic villagers. In such a situation, there are bound to occur certain discrepancies, which are in the form of omission and they cannot be considered as fatal to their evidentiary value, otherwise trustworthy. At the same time, they are unexposed to the technicalities of urban life and they speak plainly what they saw and did. They are straightforward looking people, truthful and trustworthy. Their testimony cannot be thrown out on the ground that it lacks spontaneity.
Beyond reasonable doubt
41. The principle of reasonability is of-springs of another principle on which our entire criminal justice system is based i.e. 'let 100 criminal against the untouch but one innocent should not be punished. That is the reason why the guilt is of the accused is to be proved beyond any reasonable doubt. The guilt should prove beyond any reasonable doubt with reasonable manner with ordinary burden can have. There should be no doubt whether the accused is guilty or not. If there is lightest doubt, no matter how shall it is, the benefit will go the the accused. In Indian legal system the provision regarding burden of proof and how it is discharge which lay down in chapter-VIII of the Evidence Act, 1972. The rule is that who ever latches of fact must prove it. In a criminal trial, it is the prosecution who alleges the accused has committed the offence with requisite mens ria to show the burden lies upon the prosecution to prove the same.
42. If two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. The general principle of criminal jurisprudence is that the prosecution has to prove its case beyond reasonable doubt and the benefit of every reasonable doubt should go to the accused.
43. Section 3 of the Evidence Act by itself lays down that a fact is said to be proved, when after considering the matters before it, the Court considers its existence so probably that a prudent man ought under the circumstances of the particular case who act upon the supposition that it exists themselves what a meant 'test of probabilities' or 'preponderance of probabilities'.
44. In the case of Bombay Gas Co. Limited vs. Jagan Nath Pandurang and others, (1972) 2 SCC 119, the Hon'ble Supreme Court held as under:
"15. From the above it will be seen that the High Court has not given any indication as to how it issued the certificate under Art. 133(1)(b). But one thing is clear that it did not grant the certificate on the basis of the claim made by the appellant either under clause (a) or clause (c) of Art. 133(1). On the basis of the claims made by the workmen as over-time wages and weekly off days wages for the particular periods, the appellant had calculated at the same rate for even subsequent periods till the date of the judgment of the High Court and claimed that the amount or value in dispute in appeal to this Court is over Rs.26822.09 p. The appellant had also raised a point in its further affidavit before, the High Court that it will have to meet in future also claims from its workmen and as such it will have to face a recurring liability. On this basis the appellant has raised a plea that the judgment of the High Court involves directly or indirectly a claim or question respecting property of the value of Rs.20,000/- and more. In view of the fact that the High Court has granted the certificate under Art. 133(1)(b), it has to be presumed that it has accepted the appellant's plea that a certificate could be granted under the said clause when there is a recurring liability, which, if calculated for subsequent years will be at least Rs.20,000/- and more. The question is whether under circumstances the certificate granted under Art. 133 (1) (b) by the High Court, is proper and valid."
45. In the case of Ramesh Kumar and others vs. State of Himachal Pradesh, (2013) 14 SCC 110, the Hon'ble Supreme Court held as under:
"11. There may be some discrepancies in the timing and distance between the place of occurrence and residential houses. Material witnesses had been the rustic villagers/labourers earning their livelihood by difficult means. So the case is to be examined keeping these aspects in mind."
46. In the case of State of Haryana vs. Bhagirath and others, (1999) 5 SCC 96, the Hon'ble Supreme Court held as under:
"7. The High Court had failed to consider the implication of the evidence of the two eye witnesses on the complicity of Bhagirath particularly when the High Court found their evidence reliable. Benefit of doubt was given to Bhagirath "as a matter of abundant caution". Unfortunately, the High Court did not point out the area where there is such a doubt. Any restraint by way of abundant caution need not be entangled with the concept of the benefit of doubt. Abundant caution is always desirable in all spheres of human activities. But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the judge conscientiously and reasonably entertains doubt regarding the guilt of the accused."
"8. It is nearly impossible in any criminal trial to prove all elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression reasonable doubt is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the judge."
"17. We have absolutely no doubt that the prosecution has proved with reasonable certainty that Bhagirath was holding the legs of the deceased when his nephews cut his throat and after finishing their work all the three ran away together. In the broad spectrum of the occurrence there is no scope to entertain even a semblance of doubt that Bhagirath would have shared the common intention with the other two assailants. The Division Bench of the High Court has grossly erred in absolving Bhagirath from the crime on a misplaced doubt which, in fact, did not arise at all."
47. In the case of Mallanna vs. State of Karnataka, (2007) 8 SCC 523, the Hon'ble Supreme Court held as under:
"15. In the present case, according to the findings recorded by the two courts, the prosecution has failed to prove the charge of conspiracy beyond reasonable doubt. From this it cannot be inferred that the case of prosecution that the accused persons conspired to kill the deceased was found to be false. Proof beyond reasonable doubt is entirely different from finding a charge to be false. Even if conspiracy is assumed to be genesis of the occurrence which, on the facts of the present case, cannot be said to be so, it is well-settled that if the genesis fails the same would not by itself necessarily create doubt regarding veracity of the prosecution case on the manner of actual assault and evidence of witnesses in this regard. Thus, we do not find any substance in this submission."
48. In the case of Chaman and another vs. State of Uttarakhand, (2016) 14 SCC 76, the Hon'ble Supreme Court held as under:
"31. Proof beyond reasonable doubt, as has been held in a plethora of decisions of this Court, is only a guideline and not a fetish and that someone, who is guilty, cannot get away with impunity only because truth may suffer some infirmity when projected through human processes as has been observed in Inder Singh and another vs. The State (Delhi Administration) (1978) 4 SCC 161. A caveat against exaggerated devotion to the rule of benefit of doubt to nurture fanciful doubts or lingering suspicion so as to destroy social defence has been sounded by this Court in Gurbachan Singh vs. Satpal Singh and others (1990)1SCC 445. It has been propounded that reasonable doubt is simply that degree of doubt which would permit a reasonable and a just man to come to a conclusion. It has been underlined therein that reasonableness of doubt must be commensurate to the nature of the offence to be investigated."
"32. Judged by the above touchstone of reasonableness of doubt in evaluating the facts and circumstances of the present case, we are clear in our mind that the complicity of the appellants in the offences with which they have been charged, has been convincingly proved as required in law."
49. Lastly learned counsel appearing for the appellants submitted that the evidence, if properly appreciated would lead to only one inference, that the appellants did not have any intention to commit murder. The appellants aspect to be analyzed in this case, whether the conduct of the appellants to inflict the injuries on the body of the deceased was intentional and with knowledge or with knowledge only. The medical report given by doctor who conducted the post-mortem of the dead body of the deceased shows that injuries caused by the weapons and by the appellants were sufficient in the ordinary course of nature to cause death. Hence, we have to analyze the evidence in the light of Section 300 clause (thirdly) and examined whether exception 4 of Section 300 is applicable.
50. On the evidence of the instance case, the question is whether the charge under Section 302 I.P.C. is brought whom to the accused. Section 299 defines culpable homicide. Section 300 defines murder. There are five exceptions to Section 300 I.P.C. Section 300 I.P.C. provides that except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--(Secondly) --If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--(Thirdly) --If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--(Fourthly) --If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
51. The landmark judgment in Virsa Singh v. State of Punjab (1958) 1 SCR 1495 draws a distinction between "Thirdly" of Section 300 and Exception 4 thereunder. The following are the four steps of inquiry involved.
i. first, whether bodily injury is present;
ii. second, what is the nature of the injury;
iii. Third, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended; and iv. fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature.
52. In the Lord Goddard in R v. Steane 1947-1 All ER 813 wherein the learned Chief Justice says that where a particular intent must be laid and charged, that particular intent must be proved. Of course it must, and of course it must be proved by the prosecution. The only question where is, what is the extent and nature of the intent that Section 300 "thirdly" requires, and how is it to be proved?
The learned Chief Justice further says that "if, on the totality of the evidence, there is room for more than one view as to the intent of the prisoner, the jury should be directed that it is for the prosecution to prove the intent to the jury's satisfaction, and if, on a review of the whole evidence, they either think that the intent did not exist or they are left in doubt as to the intent, the prisoner is entitled to be acquitted".
In the aforesaid judgment, it is further held, "no doubt, if the prosecution prove an act the natural consequences of which would be a certain result and no evidence or explanation is given, then a jury may, on a proper direction, find that the prisoner is guilty of doing the act with the intent alleged."
53. In Pulicherla Nagaraju alias Nagaraj Reddy v. State of A.P. (2006) 11 SCC 444 the Hon. Supreme Court has held as under:-
"21. We cannot accept the contention that whenever the death is on account of a single blow, the offence is one under Section 304 and not Section 302. We will briefly refer to the cases relief on by the appellant.
26. It would thus be seen that in all these cases, the accused landing a single blow was only one of the several circumstances which persuaded this Court to hold that the offence did not fall under Section 302 but fell under Section 304 Part I or Part II. The fact that the accused gave only one blow, by itself, would not mitigate the offence to one of culpable homicide not amounting to murder. There are several cases where single blow inflicted by the accused resulting in death have been found to be sufficient for conviction under Section 302. We may refer to a few of them, namely, Virsa Singh v. State of Punjab, Gudar Dusadh v. State of Bihar, Vasanta v. State of Maharashtra, Jai Prakash v. State (Delhi Admn.) and State of Karnataka v. Vedanayaga.
27. In Virsa Singh, this Court held that a culpable homicide is a murder under Section 300 clause Thirdly, if the prosecution should establish four elements - (i) the presence of a bodily injury, (ii) nature of such bodily injury, (iii) intention on the part of the accused to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended; and (iv) the injury was sufficient to cause death in the ordinary course of nature (this part of enquiry being purely objective and inferential, nothing to do with the intention of the offender). Dealing with the question, as to how intention is to be inferred, Vivian Bose, J. succinctly stated : (SCR pp. 1500 and 1503) "In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted....
The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question."
28.The following legal position regarding single blow injury, was summed up in Jagrup Singh v. The State of Haryana thus : (SCC pp. 619-20, para 6) "6. There is no justification for the assertion that the giving of a solitary blow on a vital part of the body resulting the death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under section 304, Part II of the Code. If a man deliberately strikes another on the head with a heavy log of wood or an iron rod or even a lathi so as to cause a fracture of the skull, he must, in the absence of any circumstances negativing the presumption, be deemed to have intended to cause the death of the victim or such bodily injury as is sufficient to cause death. The whole thing depends upon the intention to cause death, and the case may be covered by either clause Firstly or clause Thirdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death.
30. In this case, as noticed above, the appellant was carrying a Barisa, a dangerous weapon. There was previous enmity. There was an earlier incident, about half an hour earlier when the father and brother of the deceased had been attacked by the appellant and his father. The deceased was unarmed. There was no provocation, sudden quarrel or fight. There was no indication of any cause for an apprehension on the part of the appellant that the deceased may attack him. The stabbing was with great force, causing an injury on a vital part of body, sufficient in the ordinary course of nature to cause death. The description of the injury and cause for death given by PW-11, who conducted the post mortem is telling :
"An incised injury 5 cm x 3 cm x 12 cm deep over right supra clavicular fossa above the medial end of right clavicle.. sub-clavian artery is severed.. An incised injury 4cm x 1cm x 2cm deep over the apex of right lung.. deceased would appear to have died due to haemorrhage and shock due to injuries to right sub-clavian artery and upper lobe of right lung."
The intention to cause death or at all events intention of causing bodily injury which is sufficient in the ordinary course of nature to cause death was made out. The circumstances to bring the case under Exception (4) to Section 300 do not exist."
54. In Manubhai Atabhai v. State of Gujarat (2007) 10 SCC 358 the Hon. Supreme Court has held as under:-
"9. Trial court's conclusions are very confusing. For recording conviction under section 304 Part I IPC, the trial court recorded that it was a case of exercise of right of private defence and only one blow was given and there was a counter-case. If it was really a case of exercise of right of private defence, there could not have been any conviction much less under section 304 Part I IPC. Merely because a single blow was given that does not automatically bring in application of section 304 Part I IPC.
10. Trial court did not consider the various aspects highlighted by this Court in cases relating to single blow. The cross-case has really no relevance for determining as to the nature of offence."
55. The defence version is that they have been falsely implicated on account of enmity and grudge.
According to accused Kripal Singh, Pramod Kumar, Yograj Singh, Nidar, Bhartiya alias Bharat Singh son of Ram Singh, Ram Singh, Sheoraj, Rajvir and Munshi; they have been falsely implicated in this case on account of partibandi and they were not present on the spot nor caused any injuries to the deceased or any member of the deceased side.
56. According to accused Ginna he never molested Suman and and has been falsely implicated in this case on account of his being son of Bharat Singh. According to Bharat Singh the deceased was a hardened criminal. He along with Vinod Kumar, Ashok Kumar, Braj Nandan came to his fields where was was watering his fields. These persons had long standing enmity and grudge with Bharat Singh. These persons were armed with lathis while Vinod had a knife with him. All of them started bearing him. He raised hue and cry, hearing which her wife Longshri who was going back to home after giving food to him returned. She was also beaten by lathis. Both of them were also given knife blows. Written F.I.R. of this occurrence was lodged by accused Bharat Singh at the police station on the same day at 2:30 p.m. Which is Ex.Ka-5.
57. In support of his defence original injury memo of Smt. Longshri, photostat copy of injury memo of Bharat Singh Ex.Kha-4, report of x-ray Ex.Kha-3, copy of G.D. no.29 dated 16.03.1981 written at 2:30 p.m. Ex.Kha-1, a copy of judgment in criminal case No.118/56 State versus Gyan Singh and another Ex.Kha-6, copy of judgment in Revision No.185 of 78-79 pasted by the Commissioner, Agra Rajendra Singh vs. State Ex.Kha-7 and certified copy of the report dated 03.09.1980 written at 16:40 p.m. Under Sections 147/324 I.P.C. Lodged by Sheodan Singh Ex.Kha-8 have been filed.
58. According to Ex.Kha-2 following injureis were found on the body of Smt. Longshri :-
1. A lacerated wound of about 6.0 cm. x 0.5 cm. x skin deep over back of skull 12 cm. above of right ear.
2. A contusion of distal half of right thumb on back side including nail bed.
3. A contusion of about 17 cm. x 8 cm. over front aspect of left upper arm. Advised x-ray.
4. A contusion of about 2 cm. x 1.5 cm. over back of left elbow.
59. According to Ex.Kha-4 the following injuries were found on the body of accused Bharat Singh :-
1. A lacerated wound of about 60 cm. x 0.5 cm. x skin deep over right side of skull 10 cm. away of right ear.
2. A lacerated wound of about 3 cm. x 0.5 cm. x skin deep over left side of skull 10 cm. above of right ear.
3. An abrasion of about 1 cm. x 0.2 cm. over front of lower one third of right leg.
4. A contusion of about 11 cm. x 2 cm. over upper part of skull bone.
5. A contusion of about 9 cm. x 2 cm. over lower angle of shoulder bone.
6. A contusion of about 4 cm. x 0.5 cm. over back of left chest.
7. A contusion of about 11 cm. x 9 cm. over outer surface of upper half of left arm. Advised x-ray.
8. A lacerated wound over the tip of left middle finger.
9. A contused wound on tip of left middle finger.
60. According to Ex.Kha-3 there was a fracture of shaft of ulna of accused Bharat Singh son of Chandan Singh. No incised wound was found on the body of either Bharat Singh or Smt. Longshri wife of accused Bharat Singh.
No oral evidence has been produced in support of the defence version.
Analysis
61. In the light of the principle of law which have been discussed above, we have analyzed the factual position as to whether the appellants are guilty of the offence punishable under Section 302 read with Section 149 I.P.C., 323 I.P.C. and Section 147 I.P.C.
62. Facts of the present case in the hand as there was free fight between the parties. The occurrence took place in two phases. The trouble started when Ginna son of accused Bharat Singh tried to molest the daughter of the complainant by catching hold of her hand on which the deceased, PW-1, PW-2 and Damodar went to the field of Bharat Singh to make a complaint about the said incident, where there was a Marpeet between the parties and thereafter while the deceased PW-1, PW-2 and Damodar were on the way to the police station and reached near the bus stand, they were stopped by the accused and taken them back to tube-well where Ram Lal was beaten severely and succumbed to injuries caused to him.
63. PW-2 Smt. Suman had admitted in her cross-examination that while the deceased Ram Lal, complainant Smt. Lilawati and Damodar were going to the police station, there were injuries on the head, hand and legs on her father. She has further stated that her father was being carried by her mother while the deceased was going to the police station. She has also stated that her father (deceased) was unable to stand. The right hand and both the legs were broken of the deceased. On account of the said statement of PW-2, it is apparent that the deceased had received injuries at the first occurrence. These injuries were found on the body of the deceased at the time of the post-mortem. Therefore, the second occurrence has been concocted in the case just to implicate 10 other persons.
64. After perusal of the entire evidence, in the first occurrence, it is not proved that there was any intention/motive to kill the deceased and the incident were took place spur of the moment and in the same incident both sides were caused injuries. It is also cleared from the evidence on record as discussed above that the second phase incident had never taken place.
65. PW-1, Smt. Lilawati has admitted in her testimony that after a day of the occurrence, she along with her daughter Suman and PW-5 Damodar went by bus to the police station. She has further admitted that she reached the police station in the evening around sun set and Rama and 20 others Harijans invaded the police station, it is thereafter, that the case was registered at the police station Atraului. But chick of F.I.R. (Ex.Ka-1) shows that it was registered on 16.03.1981 at 9:10 p.m.
66. According to the F.I.R. Ex.Ka-1, the injured PW-1, Smt. Lilawati, PW-2 Smt. Suman and PW-5 Damodar sustained injuries in two phases. Firstly, when PW-1, along with Ram Lal deceased, and PW-5 Damodar went to the tube-well of accused Bharat Singh to lodge a protest against the assault made by accused Ginna. At the time of first occurrence, neither the accused (remaining 10 accused persons) were present nor they participated in any such occurrence. As per testimony of PW-1 Lilawati, she and other persons were going to police station Atrauli then they were assaulted by the accused persons. According to PW-2, the all accused persons took them to the tube-well engine of accused Bharat Singh and inflicted lathis upon them as a result of which Ram Lal died.
67. From the statement of PW-1 Smt. Lilawati and PW-2 Smt. Suman, neither PW-1 and PW-2 were obstructed from lodging an F.I.R. nor second Marpeet took place. Nine accused persons are added at the instance of Udaibir Singh, his sons Vinod Kumar, Ashok Kumar and Brij Nandan, who are enemical to these accused persons.
The PW-1, in her statement has admitted that when she along with her husband and others went to the field of Bharat Singh, he was present at his tube-well and was all alone. She has further stated in her testimony that none of the villager came at the tube-well of accused Bharat Singh.
68. The PW-2, Smt. Suman has further admitted in her statement that Marpeet took place on the field of Bharat Singh and Ram Lal and Damodar took out Dandas lying at the oil engine of Bharat Singh and struck Bharat Singh and his wife. She further admitted that later on all the accused persons namely Gunia, Chhuttan, Bharati, Ram Singh came over there and snatched the wooden Danda from Ram Lal (deceased) and Damodar PW-5. From this statement it is clear that the story in the F.I.R. that while PW-1, along with others were going to the police station, the 10 accused persons came at the bus stand in village Malahpur and took them to the tube-well engine of accused Bharat Singh is concocted and is quite false and the result is that there is no reliable evidence that 10 accused persons participated in any such occurrence and thereby, caused injuries to Ram Lal or any other person of his party had taken place in the first incident.
Conclusion
69. After perusal of the entire evidence, it is well established that there were no intention/motive to kill the deceased and the incident took place at the spur of moment in which both sides caused injuries. The F.I.R. of the cross case made by accused Bharat Singh was prompt where the F.I.R. Ex.Ka-1 was made after two days of the occurrence. As per the evidence on the record, it is established that the accused Bharat Singh was not aggressor, the object of Bharat Singh was to prevent assault on him and his wife in the exercise of right of private defence of his persons. This object was not unlawful as it possible to establish that his object was to kill deceased Ram Lal. The prosecution version has also failed to prove the time of the death of Ram Lal at about 10:00 a.m. on 16.03.1981. The witness PW-5 Damodar was close relative of deceased Ram Lal has not supported the prosecution version and no evidence of the locality has also supported the prosecution case. There are no evidence on record to show that the deceased Ram Lal, PW-1 Smt. Lilawati, PW-2 Smt. Suman and PW-5 Damodar sustained any injury in the second occurrence, at the instance of 9 accused persons, whereas it is proved that the deceased Ram Lal sustained injuries only at the first occurrence, and therefore, there are no evidence of the second occurrence which is alleged to have taken place in which deceased Ram Lal died, as climed by the prosecution.
70. The incident took place on 16.03.1981, about thirty seven years ago and the present criminal appeal is pending since 1983 i.e. about more than 35 years. In the case of Hussain and others vs. Union of India, the Hon'ble Supreme Court held that "Timely delivery of justice is a part of human rights. Denial of speedy justice is a threat to public confidence in the administration of justice".
71. After considering the entire evidence on record, we are of the view that the prosecution has failed to establish the guilt of accused-appellants beyond reasonable doubt on the basis of evidence brought on record and therefore, the accused-appellants are liable to be acquitted by giving them benefit of doubt.
72. For the reasons as stated above, we are of the view that the present criminal appeal deserves to be allowed.
73. Accordingly, the appeal is allowed. The judgment and order dated 05.08.1983, passed by the Special Judge (E.C. Act), Aligarh in Session Trial No.51 of 1982 (State vs. Bharat Singh and others), by which the accused-appellants had been convicted for offence punishable under Sections 147, 323/149, 302/149, 354 I.P.C., Police Station Atrauali, District Aligarh is set aside. The appellant no.3 Nidar Babu and appellant no.4 Rajvir are in jail, they be released forthwith, if they are not required in any other case.
74. The Registry is directed to send a certified copy of the judgment with all original records to the concerned court below for compliance.
Order Date :-30.05.2018 Jitendra (Chandra Dhari Singh,J.) (Ashwani Kumar Mishra, J.)